Activities of Raffaele BALDASSARRE related to 2011/0204(COD)
Reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters PDF (516 KB) DOC (492 KB)
Amendments (19)
Amendment 1 #
Proposal for a regulation
Recital 13
Recital 13
(13) In order to ensure the surprise effect of the account preservation order, the debtor should not, as a general rule, be informed about the application, and not be heard prior to its issue or notified of the order prior to its implementation by the bank. However, for the purpose of providing greater legal certainty, the court to which application is made for an account preservation order should be able to take a reasoned decision to hear the debtor in exceptional cases where this is essential in order to reach a final decision and insufficient information and evidence is available for that purpose. Such hearings should take place only if it does not increase the likelihood of enforcement of the claim being frustrated or made substantially more difficult as a result. The debtor should, however, be able to contest the order immediately after it was implemented.
Amendment 2 #
Proposal for a regulation
Recital 15
Recital 15
(15) This Regulation should provide sufficient safeguards against abuse of the order. In particular, unless the creditor already has a judgment enforceable in the Member State of enforcement, the court should be able to require the creditor to provide security to ensure compensation for any damage suffered by the debtor as a result of an unjustified order. The conditions under which the creditor will be liable to compensate the debtor for such damage should be governed by national law. Where the law of a Member State does not provide for a statutory liability of the claimant, this Regulation should not preclude the recourse to measures with equivalent effect, such as the obligation on the claimant to give an undertaking as to damages or any failure to release within the appointed time limit sums over and above the amount specified in the order.
Amendment 3 #
Proposal for a regulation
Recital 15 a (new)
Recital 15 a (new)
(15a) This Regulation should provide for a statutory liability on the part of the claimant for any damage caused to the defendant by an order that is subsequently found to be unjustified. The compensation for such damage should cover, as a minimum requirement, any loss of earnings and the costs incurred during the proceedings. In addition, the claimant should also be liable for any damage caused to the defendant as a result of failure to effect the prompt release of sums over and above the amount specified in the order.
Amendment 4 #
Proposal for a regulation
Recital 16
Recital 16
(16) Given that creditors currently face practical difficulties in accessing information on debtors from public or private sources in a cross-border context, the Regulation should establish a mechanism enabling the competent authority in the Member State of enforcement to obtain the information about the debtor's bank accounts, eirequired in order to identify the debtor's bank accounts. That mechanism should be provided for by Member States under their by obliging the banks to disclosenational law and may involve obliging the banks to inform the competent authority about the whereabouts of the debtor's accounts located in that Member State or by granting access to information held in registers or otherwise by public authorities or administrations.
Amendment 5 #
Proposal for a regulation
Article 3
Article 3
1. For the purposes of this Regulation, a matter is considered tocase haves cross-border implications unlessif the bank account, or at least one of the bank accounts, to be preserved by the EAPO is held in a Member State other than: (a) the Member State of the court seised with the application for anthe EAPO, all bank accounts to be preserved by the order and the parties are located or domiciled in the same Member State pursuant to Article 6(2), (b) the Member State in which the creditor has obtained, against the debtor, a judgment, court settlement or authentic instrument relating to the claim which is subject of the application for the EAPO, (c) the Member State in which the creditor is domiciled or located, or (d) the Member State in which the debtor is domiciled or located. 2. The relevant moment for determining whether a case has cross-border implications is the date on which the application for the EAPO is received by the court having jurisdiction for issuing the EAPO.
Amendment 6 #
Proposal for a regulation
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. An EAPO shall be issued in the amount for which it is sought or a part thereof where the claimant submits sufficient and relevant facts, reasonably corroborated by evidence, towhich make a prima facie case and which satisfy the court of both of the following:
Amendment 7 #
Proposal for a regulation
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
b) that without the issue of the order there is a real risk that the subsequent enforcement of an existent or future title against the defendant is likely to be impeded or made substantially more difficult, including because there is the realongoing risk that the defendant might remove, dispose of or conceal assets held in the bank account or accounts to be preserved.
Amendment 8 #
Proposal for a regulation
Article 8 – paragraph 2 – point b
Article 8 – paragraph 2 – point b
(b) the name and address, address and, where known, date of birth and national identity card or passport number of the defendant and, where applicable, the defendant's representative;
Amendment 9 #
Proposal for a regulation
Article 10
Article 10
The defendant shall not be notified of the application or be heard prior to the issue of the EAPO, unless the claimant requests otherwise. In exceptional cases, the court to which the application for an EAPO is made may take a reasoned decision to hear the defendant if this is necessary in order to reach a final decision and if such a hearing does not increase the risk to the claimant that the enforcement of his claim will be impeded or made substantially more difficult.
Amendment 10 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Where the competent court considers that it cannot issue the EAPO without additional evidence, it may admit such evidence in the form of written statements of witnesses or expertsshall use the most suitable method of taking evidence provided for under the national law of the Member State concerned.
Amendment 11 #
Proposal for a regulation
Article 12
Article 12
Before issuing an EAPO, the court mayshall require the provision of a security deposit or an equivalent assurance by the claimant tohat will ensure compensation for any damage suffered by the defendant to the extent the claimant is liable to compensate such damage under national lawArticle 12a. The court may require the provision of a reduced security deposit or equivalent assurance and, in exceptional cases, exempt the claimant from this requirement if it considers this superfluous or disproportionate, in particular on account of the claimant’s financial situation.
Amendment 12 #
Proposal for a regulation
Article 12 a (new)
Article 12 a (new)
Article 12a Liability of the claimant 1. Following the setting aside or modification of an EAPO, the suspension of the enforcement of an EAPO or the claim being deemed unfounded during proceedings on the substance of the matter, the claimant shall be liable for any damage caused to the defendant as a result of the issue of the EAPO. The claimant shall also be liable for any damage caused to the defendant as a result of failure to comply with Article 28(2). 2. The courts of the Member State in which the EAPO was set aside, modified or suspended or the claim was deemed unfounded during proceedings on the substance of the matter shall establish the extent of the damage referred to in paragraph 1.
Amendment 13 #
Proposal for a regulation
Article 15 – paragraph 2 – point b
Article 15 – paragraph 2 – point b
b) the name, and address and, where known, date of birth and national identity card or passport number of the defendant, and, where applicable, the defendant'’s representative;
Amendment 14 #
Proposal for a regulation
Article 16 – point a
Article 16 – point a
a) the full name of the defendantwhere the defendant is a natural person, his or her full name and, where known, date of birth or national identity card or passport number,
Amendment 15 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
2. The claimant shall duly substantiate the application which shall include all information available to the claimant about the defendant andreferred to in Article 16 about the defendant and the defendant's bank accounts which is available to the claimant and at least the following: a) the full name of the defendant, b) the defendant's full address and c) the Member State in which the defendant's holds the bank accounts(s) in respect of which the EAPO is being applied for.
Amendment 16 #
Proposal for a regulation
Article 17 – paragraph 5 – point a
Article 17 – paragraph 5 – point a
(a) the possibility to obligean obligation on all banks in their territory to discloseinform the competent authority whether the defendant holds an account with them.
Amendment 17 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
1. WThere the EAPO covers several accounts held by the defendant with one and the same bank, the bank shall implement it only up to the amount specified therein bank shall implement the EAPO only up to the amount specified therein. Where the defendant holds several accounts with one and the same bank, the EAPO shall be implemented up to the amount contained therein in the following order: (a) accounts exclusively held by the defendant which are not payment accounts as defined by Article 4 point 14 of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market1, with the deposits with the longest cancellation period being taken first, (b) payment accounts as defined by Article 4 point 14 of Directive 2007/64/EC which are exclusively held by the defendant; (c) where possible, accounts which are not exclusively held by the defendant in accordance with Article 29, in the same order as under (a) and (b) above, mutatis mutandis. ______________ 1 OJ L 319, 5.12.2007, p. 1.
Amendment 67 #
Proposal for a regulation
Article 4 – point 1
Article 4 – point 1
1. “bank account” means any account containing cash or financial instruments which is held with a bank in the name of the defendant or in the name of a third party on behalf of the defendant;
Amendment 109 #
Proposal for a regulation
Article 39 – paragraph 1 a (new)
Article 39 – paragraph 1 a (new)