European Regulation: seizing a debtor's assets

The EU Regulation No. 655/2014 has entered into force on 18 January 2017 as an additional European procedural tool in national civil litigation.

The Regulation allows the creditor to seize the debtor's accounts within Europe (except UK and Denmark) and is intended to take into consideration the fact that, thanks to Schengen, European-wide trade is flourishing, but enforcement in the accounts of companies operating across Europe is becoming extremely difficult across national borders.

In order not to contradict the respective national regulations, the Regulation refers in essential points to them. For example, with regard to jurisdiction and costs, direct reference is made to national law and various requirements (such as the degree of proof) are left to the discretion of the respective courts in each member state.

On the other hand, essential prerequisites for European harmonisation such as the claim and reason for the seizure or the creditor's liability to pay damages regardless of fault in the event of the loss of the main proceedings are bindingly regulated.

Overall, the Regulation seems to be a useful tool under EU law for creditors whose debtors have assets within the EU, but not within the country in which the lawsuit is pending. With this Regulation, the European legislator has now succeeded in making the legal challenges posed by EU globalisation a little fairer. It remains to be seen whether the creditors will be able to make much use of this tool or whether the national courts, in their discretion, will set high legal hurdles against it.

In a decision dated 14 January 2019 (I-8 W 51/18) the German Higher Regional Court Hamm has for the first time expressed its opinion on German enforcement in other EU countries based on the Regulation. The court sets high hurdles on the use of this enforcement option and makes it appear subsidiary to the other means of enforcement of the German code of civil procedure (ultima ratio).