International debt collection is often an obstacle course. A debtor domiciled in another country, bank accounts scattered across the European Union, divergent national legislation... These are just some of the obstacles that complicate the recovery of cross-border debts.
Since 2017, a new tool has changed all that: the European order for the precautionary seizure of bank accounts (ECSO). This mechanism makes it possible to freeze your debtor's accounts in all Member States, without any prior exequatur procedure.
1. The legal framework for European seizures
The ESCO stems from Regulation 655/2014 of 15 May 2014, which came into force on 18 January 2017. This text creates a uniform European procedure enabling a creditor to obtain an order preventing the transfer or withdrawal of funds held by its debtor in a bank account in a Member State.
Its practical implementation is supplemented by Implementing Regulation No. 2016/1823 of 10 October 2016, which establishes the standardised forms.
The ESCO applies only to pecuniary claims in civil and commercial matters in cross-border disputes. A dispute is considered to be cross-border when the bank account in question is held in a Member State other than that of the court seised or of the creditor's domicile (Article 3 of the Regulation).
The following are excluded from the scope of application: matrimonial property regimes, succession, bankruptcy, social security and arbitration (Article 2 of the Regulation).
2. Conditions for obtaining the prescription
The judge's jurisdiction
The competent court varies according to the creditor's situation:
- If he does not yet have a writ of execution: the courts have jurisdiction to rule on the merits of the case under the Brussels I bis Regulation (Article 6§1 of the Regulation).
- If he already has an enforceable title: the courts of the Member State in which the title was issued (article 6§3).
- If the debtor is a consumer: the courts of the Member State in which the debtor is domiciled (article 6§2).
In France, the enforcement judge of the judicial court has jurisdiction.
Basic conditions
To obtain an ESCB, the creditor must demonstrate :
- Urgency of the measure: there is a real risk that the subsequent recovery of the claim will be prevented or made significantly more difficult (article 7§1).
- Whether the claim is well-founded: if the creditor does not yet have an enforceable title, he must convince the court that his claim will probably be upheld on the merits (article 7§2).
The case law of the CJEU has clarified that the Bulgarian order for payment without the enforcement order does not constitute an enforceable title within the meaning of the Regulation (CJEU, 7 Nov 2019, aff. C-555/18, K.H.K).
Creation of a guarantee
The judge may require the creditor to provide sufficient security to ensure compensation for any prejudice caused to the debtor by the order.
This guarantee is compulsory when the creditor has not yet obtained an enforceable title (article 12). It becomes optional when the creditor already has such a title.
3. The procedure for obtaining and executing
Request for information on accounts
One of the major innovations of the Regulation is the possibility for the creditor to request information on the debtor's bank accounts. Article 14 provides that the creditor may ask the authority responsible for obtaining information in the Member State of enforcement to search for such data.
To do this, the creditor must :
- prove that they have an enforceable title (or that they will probably win their case),
- explain why it believes the debtor holds an account in that Member State,
- provide all relevant information about the debtor and its accounts.
In France, this authority is the bailiff, who can query the FICOBA (Fichier national des comptes bancaires).
Issuing the prescription
The procedure is non-adversarial in order to preserve the element of surprise. The debtor is therefore not informed of the application for an order.
The judge rules very quickly:
- 10 working days following the lodging of the claim if the creditor does not have a writ of execution
- 5 working days if they already hold such a certificate
The order is drawn up using a standard form (Annex II of Implementing Regulation No. 2016/1823). It remains in force until it is revoked, the debtor provides an alternative guarantee, or the creditor obtains a compulsory enforcement measure (article 20).
Implementing the seizure
The order is recognised without any special procedure and is enforceable in all Member States (article 22).
In the Member State of enforcement, the order is transmitted to the bank, which must execute it without delay (Article 24). The bank must seize the funds up to the amount indicated in the order.
Within three working days of implementation, the bank issues a declaration (standard form) indicating whether and to what extent the funds have been seized.
The debtor is informed once the measure has taken effect, by service of various documents including the order (article 28).
4. Remedies available to the debtor
Grounds for challenge
The debtor has several grounds for dispute (articles 33 and 34):
- Failure to comply with the conditions for issuing the order (lack of urgency, unfounded claim)
- The cross-border nature of the dispute
- Total or partial payment of the debt
- Exclusion of sums exempt from seizure under national law
- The debtor's immunity from execution
- Procedural flaws (missed deadlines, incomplete information, etc.)
The debtor may also request the release of the seized funds by providing alternative security (article 38).
The complaints procedure
Appeals must be lodged with the competent courts:
- The courts of the Member State of origin for disputes relating to the issue of the order
- The courts of the Member State of enforcement for disputes relating to enforcement
Decisions on such appeals are enforceable in all Member States without any special procedure.
Sources
- Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 creating a procedure for a European order for the precautionary seizure of bank accounts
- Commission Implementing Regulation (EU) No 2016/1823 of 10 October 2016 laying down forms
- Code des procédures civiles d'exécution, articles L.111-1-1 to L.111-1-3 and R.511-1 to R.525-5
- CJEU, 7 November 2019, Case C-555/18, K.H.K, D. 2019. 2187
- PIÉDELIÈVRE S., "La saisie des comptes bancaires européens : À propos de la proposition de règlement européen", in Un recouvrement de créances sans frontière? 2013, Larcier, p. 13.
- GUINCHARD S., "De la première saisie conservatoire européenne. Présentation du règlement n°655/2014", RTD eur. 2014. 922
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