18 Amendments of Sergio Gaetano COFFERATI related to 2011/0204(COD)
Amendment 57 #
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, 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 a preservation order should be able to hear the debtor in exceptional cases where it considers this essential in order to reach a decision and insufficient information and evidence is available for this purpose. Such hearings should take place only if there is no likelihood of enforcement of the claim being frustrated or made substantially more difficult as a result and only if there is sufficient time for the hearing to be held before the order is issued. The debtor should, however, be able to contest the order immediately after it was implemented.
Amendment 58 #
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 59 #
Proposal for a regulation
Recital 15 a (new)
Recital 15 a (new)
(15a) This Regulation should therefore 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 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 62 #
Proposal for a regulation
Recital 18
Recital 18
(18) The debtor's right to a fair trial should be safeguarded in the proceedings for the account preservation order. This notably requires that the order and all documents submitted by the claimant be served on the defendant promptly after its implementation and that the defendant can apply for a review of the order. Jurisdiction for the review should lie with the court having issued the order except if aspects of enforcement are contested. However, if the defendant is a consumer, employee or insured, or a microenterprise, he should be able to apply for a review of the order before the courts in the Member State of his domicile or establishment. The debtor should also have the right to release the funds in the account is he provides alternative security.
Amendment 66 #
Proposal for a regulation
Article 3
Article 3
1. For the purposes of this Regulation, a matter is considered to have cross-border implications unless the court seised with the application for an EAPO, all bank accounts to be preserved by the order and the parties are located or domiciled in the same Member State. cross-border case is one in which the bank account or one or more of the bank accounts to be preserved by the Preservation Order is/are maintained in a Member State other than: (a) the Member State of the court seised with the application for the Preservation Order pursuant to Article 6(2), or (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 Preservation Order, or (c) the State in which the creditor is domiciled or located, or (d) the State in which the debtor is domicilied or located. 2. The relevant moment for determining whether there is a cross-border case is the date on which the application for the Preservation Order is received by the court having jurisdiction for issuing the Preservation Order.
Amendment 69 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 74 #
Proposal for a regulation
Article 8 – paragraph 2 – point b
Article 8 – paragraph 2 – point b
(b) the name, and address and, where possible, date of birth and ID details or passport number of the defendant and, where applicable, the defendant's representative;
Amendment 77 #
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 seised with an application may hear the debtor, under the condition that such a hearing does not increase the risk to the creditor that the enforcement of his claim will be impeded or made substantially more difficult and if there is enough time for the debtor to be served and heard before an EAPO is granted.
Amendment 79 #
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 competent court may require the provision of a smaller security deposit or assurance (and in exceptional cases exempt the claimant from this requirement) where it considers that, in view of the claimant’s financial status, such a requirement would be a disproportionate or unsustainable burden for the latter.
Amendment 81 #
Proposal for a regulation
Article 12 a (new)
Article 12 a (new)
Article 12a Claimant’s liability 1. The claimant shall be liable for any damage caused to the defendant as a result of the setting aside or modification of an EAPO or the claim being deemed unfounded during proceedings on the substance of the matter. 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 or modified shall establish the extent of the damage referred to in paragraph 1.
Amendment 98 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
1. Where 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. Where the defendant holds several accounts at one and the same bank, the bank shall preserve each account in turn, in the following order, until such time as the specified amount has been blocked: (a) accounts containing cash which are exclusively held by the defendant and are not payment accounts within the meaning of Article 4(14) of Directive 2007/64/EC; (b) payment accounts within the meaning of Article 4(14) of Directive 2007/64/EC which contain cash and are exclusively held by the defendant; (c) accounts as provided for in Article 29 of this Directive which contain cash and are not payment accounts within the meaning of Article 4(14) of Directive 2007/64/EC; (d) accounts as provided for in Article 29 of this Directive which contain cash and are payment accounts within the meaning of Article 4(14) of Directive 2007/64/EC.
Amendment 100 #
Proposal for a regulation
Article 28 – paragraph 2
Article 28 – paragraph 2
2. Where one or more EAPOs or equivalent protective orders under national law have been issued covering several accounts held by the defendant with different banks, whether in the same or in different Member States, the claimant shall have a duty to effect the release of any amount specified therein which exceeds the amount stipulated in the EAPO. Such release shall be effected within 48 hours following the receipt of the first bank's declaration pursuant to Article 27 showing such excess. The release shall be effected through the competent authority of the respective Member State of enforcement. In the event of failure to fulfil this requirement, any liability on the claimant’s part beyond that for providing compensation for damage suffered by the defendant in accordance with Article 12a shall be governed by national law.
Amendment 101 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
2. Fees charged for the implementation of the EAPO or of an order pursuant to Article 17(4)(a) shall correspond to single fixed fees which are determined in advance by the Member State where the account is located and which respect the principles of proportionality and non-discrimination and are not higher than the costs actually incurred.
Amendment 102 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. Member States shall communicate to the Commission, in accordance with Article 48 whether banks are entitled to recover their costs and, if so, the amount of the fee pursuant to paragraph 2.
Amendment 103 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Where the law of the Member State of enforcement so provides, tThe amounts necessary, to ensure the livelihood of the defendant and his family, where the defendant is a natural person, or to ensure the possibility to pursue a normal course of business, where the defendant is a legal person, shall be exempt from the enforcement of the order.
Amendment 104 #
Proposal for a regulation
Article 32 – paragraph 2
Article 32 – paragraph 2
2. Member States shall inform the Commission about the specific rules applicable under their national law in these situations, including which amounts or types of receivables held in a bank account are exempt.
Amendment 107 #
Proposal for a regulation
Article 36
Article 36
If the defendant is a consumer, employee or insured, or a microenterprise within the meaning of Recommendation 2003/61/EC, he may also address the application for review under Articles 34 and 35 to the competent court in the Member State where he is domiciled or established to be notified to the Commission in accordance with Article 48.
Amendment 110 #
Proposal for a regulation
Article 42 – paragraph 1
Article 42 – paragraph 1
1. The unsuccessful party shall bear the costs of the proceedings. However, the court shall not award costs to the successful party to the extent that they were unnecessarily incurred or are disproportionate to the claim. The unsuccessful party shall bear the costs referred to in Article 30.