Starkinvest (Judicial cooperation in civil matters - European Account Preservation Order procedure - Concept of 'judgment' - Judgment) [2023] EUECJ C-291/21 (20 April 2023)

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(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 655/2014 – European Account Preservation Order procedure – Conditions for issuing a preservation order – Article 4 – Concept of ‘judgment’ – Article 7 – Concept of ‘judgment requiring the debtor to pay the creditor’s claim’ – Judgment ordering a party to make a penalty payment for breach of a prohibitory order – Regulation (EU) No 1215/2012 – Article 55 – Scope)

REQUEST for a preliminary ruling under Article 267 TFEU from the juge des saisies du tribunal de première instance de Liège (Enforcement Judge at the Court of First Instance, Liège, Belgium), made by decision of 6 May 2021, received at the Court on 7 May 2021, in the proceedings brought by

composed of A. Prechal, President of the Chamber, M.L. Arastey Sahún, F. Biltgen (Rapporteur), N. Wahl and J. Passer, Judges,

having regard to the written procedure and further to the hearing on 16 June 2022,

– the Belgian Government, by M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents,

– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 October 2022,

1 This request for a preliminary ruling concerns the interpretation of Article 4 and Article 7(2) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (OJ 2014 L 189, p. 59), and Article 55 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

2 The request has been made in proceedings brought by Starkinvest SRL, seeking enforcement, by means of a European Account Preservation Order (‘the preservation order’), of a judgment ordering penalty payments in the event of breach of the prohibitory order issued against Soft Paris EURL and Soft Paris Parties LTD.

‘A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.’

‘A judgment given in a Member State which orders a payment by way of a penalty shall be enforceable in the Member State addressed only if the amount of the payment has been finally determined by the court of origin.’

‘(12) The Preservation Order should be available for the purpose of securing claims that have already fallen due. It should also be available for claims that are not yet due as long as such claims arise from a transaction or an event that has already occurred and their amount can be determined, including claims relating to tort, delict or quasi-delict and civil claims for damages or restitution which are based on an act giving rise to criminal proceedings.

(14) The conditions for issuing the Preservation Order should strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order.

Consequently, when the creditor applies for a Preservation Order prior to obtaining a judgment, the court with which the application is lodged should have to be satisfied on the basis of the evidence submitted by the creditor that the creditor is likely to succeed on the substance of his claim against the debtor.

Furthermore, the creditor should be required in all situations, including when he has already obtained a judgment, to demonstrate to the satisfaction of the court that his claim is in urgent need of judicial protection and that, without the Order, the enforcement of the existing or a future judgment may be impeded or made substantially more difficult because there is a real risk that, by the time the creditor is able to have the existing or a future judgment enforced, the debtor may have dissipated, concealed or destroyed his assets or have disposed of them under value, to an unusual extent or through unusual action.

6 Article 4 of that regulation, entitled ‘Definitions’, provides, in points 5, 8 and 11:

(5) “claim” means a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court;

(8) “judgment” means any judgment given by a court of a Member State, whatever the judgment may be called, including a decision on the determination of costs or expenses by an officer of the court;

(11) “Member State of origin” means the Member State in which the Preservation Order was issued’.

7 Article 5 of that regulation, entitled ‘Availability’, is worded as follows:

‘The Preservation Order shall be available to the creditor in the following situations:

(a) before the creditor initiates proceedings in a Member State against the debtor on the substance of the matter, or at any stage during such proceedings up until the issuing of the judgment or the approval or conclusion of a court settlement;

(b) after the creditor has obtained in a Member State a judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim.’

‘Where the creditor has already obtained a judgment or court settlement, jurisdiction to issue a Preservation Order for the claim specified in the judgment or court settlement shall lie with the courts of the Member State in which the judgment was issued or the court settlement was approved or concluded.’

9 Article 7 of Regulation No 655/2014, entitled ‘Conditions for issuing a Preservation Order’, provides:

‘1. The court shall issue the Preservation Order when the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for a protective measure in the form of a Preservation Order because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult.

2. Where the creditor has not yet obtained in a Member State a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim, the creditor shall also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor.’

‘The application [for a Preservation Order] shall include the following information:

(ii) where the creditor has already obtained a judgment, court settlement or authentic instrument, the amount of the principal claim as specified in the judgment, court settlement or authentic instrument or part thereof and of any interest and costs recoverable pursuant to Article 15’.

‘The court seised of an application for a Preservation Order shall examine whether the conditions and requirements set out in this Regulation are met.’

12 Under Article 48(b) of that regulation, Regulation No 655/2014 is without prejudice to Regulation No 1215/2012.

13 By the Law of 31 January 1980 (Moniteur belge of 20 February 1980, p. 2181), the Belgian legislature approved the Convention Benelux portant loi uniforme relative à l’astreinte (Benelux Convention providing a uniform law on penalty payment) and the annex thereto (loi uniforme relative à l’astreinte (Uniform law on penalty payments)), signed in The Hague on 26 November 1973. Since then, penalty payments are governed by Articles 1385bis to 1385nonies of the code judiciaire (Judicial Code).

‘On the application of one of the parties, the court may order the other party to pay a sum of money, known as a penalty payment, if the principal obligation laid down in the judgment has not been performed …, without prejudice to damages, where appropriate. …’

‘The court may set the penalty payment at a fixed amount or at an amount determined by unit of time or by breach. In the last two cases, the court may also set an amount above which the order to pay the penalty payment shall cease to have effect.’

‘The whole amount of the accrued penalty payment is payable to the party who obtained the order. That party may pursue recovery of the penalty payment on the basis of the order imposing it.’

‘Where enforcement is difficult, any interested party may appeal to the enforcement judge, without, however, the bringing of that action having suspensory effect. The enforcement judge shall, where appropriate, order that the preservation be lifted.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

18 By judgment of 3 September 2013 of the tribunal de commerce de Liège (Commercial Court, Liège, Belgium), which was confirmed by a judgment of the cour d’appel de Liège (Court of Appeal, Liège, Belgium) of 6 January 2015, Soft Paris and Soft Paris Parties were ordered, subject to a penalty payment of EUR 2 500 per breach, inter alia, to cease all sales of their goods and services under the word mark SOFT PARIS in the Benelux countries.

19 On 27 April 2021, Starkinvest issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 by way of penalty payments for the period between 24 March and 27 April 2021.

20 By an application lodged at the registry of the tribunal de première instance de Liège (Court of First Instance, Liège, Belgium) on 3 May 2021, Starkinvest asked that court to make a European Account Preservation Order, in the principal amount of EUR 85 000, over any sums that may be held in the French bank accounts of Soft Paris Parties, whose registered office is in Ireland.

21 In its analysis of the conditions for issuing a preservation order for those bank accounts, the juge des saisies du tribunal de première instance de Liège (Enforcement Judge at the Court of First Instance, Liège), which is the referring court, observes that Article 7 of Regulation No 655/2014 establishes a system that distinguishes two situations: the first, whereby the creditor already has an enforceable title and is therefore exempt from justifying the merits of his or her claim, and the second, whereby the creditor does not have such a title and must therefore submit evidence that he or she is likely to succeed on the substance of his or her claim against the debtor.

22 It follows, according to the referring court, that the examination to be carried out in the present case depends on whether Starkinvest may rely on the judgment of the cour d’appel de Liège (Court of Appeal, Liège) of 6 January 2015 as an enforceable title, that is to say a judgment ‘requiring the debtor to pay the creditor’s claim’, within the meaning of Article 7(2) of Regulation No 655/2014.

23 In that regard, the referring court submits that that judgment, ordering payment to Starkinvest by way of a penalty, in the event of a failure to comply with the prohibition order, does not include the exact amount of the penalty payments, which, by definition, was not yet known at the time of that judgment. However, it is not necessary, under Belgian law, for the amount of the penalty payments to be determined prior to the preservation, provided that the decision ordering penalty payments is enforceable and has been served. The court having jurisdiction is to rule on that matter only in the context of the proceedings opposing the preservation.

24 Since ‘claim’ is defined in Article 4 of Regulation No 655/2014 as ‘a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court’, the referring court is uncertain whether, bearing in mind that, while the principle and the basic amount of a penalty payment are established by judgment, the amount payable varies depending on possible future breaches by the debtor, such a payment can be regarded as a claim within the meaning of that provision.

25 The referring court states, in essence, that, if the answer were in the affirmative, the decision imposing a penalty payment could be regarded as a judgment ‘requiring the debtor to pay the creditor’s claim’, within the meaning of Article 7(2) of Regulation No 655/2014, which would deprive the court of the Member State of origin, before which an application for a preservation order was made, of any power to examine whether the claim relied on is due. Such a review would, however, enable the court seised to ascertain whether the penalty payment in respect of which a preservation order is sought is probably due, whether no limitation rule applies and whether all the procedural rules, including those concerning the informative nature of the service of the penalty payment imposed, have been complied with.

26 Furthermore, the referring court asks whether Article 55 of Regulation No 1215/2012 must be taken into consideration in the interpretation to be made, in so far as that article provides that a judgment that orders payment by way of a penalty in a Member State is to be enforceable in the Member State addressed only if the amount of the payment has been finally determined by the court of origin.

27 Moreover, the referring court asks whether – in so far as it is accepted that a judgment imposing a penalty payment must be classified as a judgment ‘requiring the debtor to pay the creditor’s claim’, within the meaning of Article 7(2) of Regulation No 655/2014, and that the existence of such an enforceable title has the effect of depriving the court responsible for granting or refusing the preservation order of its power to ascertain whether a claim is due – the amount of the penalty payment must be determined beforehand.

28 In those circumstances, the juge des saisies du tribunal de première instance de Liège (Enforcement Judge at the Court of First Instance, Liège) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a [judgment] requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of [Regulation No 655/2014]?

(2) Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of “judgment” in Article 4 of [Regulation No 655/2014] where there has been no final determination of the amount in accordance with Article 55 of [Regulation No 1215/2012]?’

29 The referring court has requested that the present case be determined pursuant to an expedited procedure under Article 105(1) of the Rules of Procedure of the Court of Justice.

30 In support of its request, it relied on the nature of the application for a preservation order brought before it and the fact that the proceedings were stayed pending the interpretation to be provided by the Court.

31 It follows from Article 105(1) of the Rules of Procedure that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules.

32 In the present case, on 14 June 2021, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to reject the application for an expedited procedure on the ground that the reasons put forward by the referring court were not such as to establish that the conditions laid down in Article 105(1) of the Rules of Procedure were satisfied in the present case.

33 An expedited procedure is a procedural instrument intended to address matters of exceptional urgency (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 37 and the case-law cited). The mere interest of litigants in determining as quickly as possible the scope of their rights under EU law, while legitimate, or mere economic interests, however important and legitimate they may be, are not such as to justify, in themselves, use of the expedited procedure (see, to that effect, judgment of 11 November 2021, Energieversorgungscenter Dresden-Wilschdorf, C‑938/19, EU:C:2021:908, paragraphs 43 and 45 and the case-law cited).

34 By its two questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court asks, in essence, whether Article 7(2) of Regulation No 655/2014 must be interpreted as meaning that a judgment that orders a debtor to make a penalty payment in the event of a future breach of a prohibitory order and that therefore does not definitively set the amount of that penalty payment constitutes a judgment requiring the debtor to pay the creditor’s claim, within the meaning of that provision, such that the creditor who requests a preservation order is exempt from the obligation to provide sufficient evidence to satisfy that court that he or she is likely to succeed on the substance of his or her claim against the debtor.

35 In that regard, it should be borne in mind that, in accordance with Article 17(1) of Regulation No 655/2014, the court seised of an application for a preservation order must examine whether the conditions and requirements set out in that regulation are met.

36 The conditions for issuing a preservation order are laid down in Article 7 of Regulation No 655/2014. Paragraph 1 of that article, read in the light of paragraph 2 thereof, provides, in essence, that the court seised is to issue a preservation order when the creditor, who has obtained a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim, submits sufficient evidence to show that there is an urgent need for a protective measure. Where the creditor has not yet obtained such a judgment, settlement or instrument, he or she must, in accordance with paragraph 2 of that article, submit sufficient evidence not only as regards the urgent need for the measure sought, but also as regards the likelihood of success on the substance of his or her claim against the debtor.

37 In addition, it should be noted that the terms ‘judgment’ and ‘claim’, used in Article 7(2) of Regulation No 655/2014, are defined in points 5 and 8 of Article 4 of that regulation respectively.

38 The term ‘claim’ is defined in Article 4(5) of Regulation No 655/2014 as ‘a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court’.

39 Thus, while it is possible to have recourse to a preservation order in order to secure claims that have already fallen due, that must also be the case for claims not yet due, provided that they arise from a past transaction or event and that their amount can be determined when they are brought before a court for the purposes of issuing that order.

40 The claims not yet due referred to in Article 4(5) of Regulation No 655/2014, as stated in recital 12 of that regulation, include claims relating to tort, delict or quasi-delict and civil claims for damages or restitution which are based on an act giving rise to criminal proceedings – cases that do not, however, cover the claim in respect of which the judgment imposing a penalty payment, at issue in the main proceedings, was adopted.

41 As the Advocate General observed in points 65 and 66 of his Opinion, the transaction or event giving rise to the claim not yet due, referred to in Article 4(5) of Regulation No 655/2014, must precede the issuance of the judgment requiring the debtor to pay the creditor’s claim, referred to in Article 7(2) of that regulation, which is clearly not the case here, as the failure to comply with the prohibitory order that is liable to give rise to the making of a penalty payment can occur only after the judgment imposing the penalty payment.

42 The term ‘judgment’, which is defined in Article 4(8) of Regulation No 655/2014 as ‘any judgment given by a court of a Member State, whatever the judgment may be called’, must be interpreted as meaning that that judgment must be enforceable (see, to that effect, judgment of 7 November 2019, K.H.K. (Account preservation), C‑555/18, EU:C:2019:937, paragraph 44).

43 In the light of the foregoing, the expression ‘judgment requiring the debtor to pay the creditor’s claim’, used in Article 7 of Regulation No 655/2014, must be understood as meaning an enforceable judgment ordering the debtor to pay the specified or determinable amount at the time of delivery of that judgment.

44 As the Advocate General observed, in essence, in points 62, 63 and 73 of his Opinion, although a judgment setting a basic amount for the penalty payment incurred in the event of breach of a prohibitory order, assuming that that judgment is enforceable, does indeed entail an order for payment of an amount that can theoretically be determined, that judgment cannot however contain the precise amount of the claim to be recovered, since that amount depends on future events and is therefore not known at the date of delivery of the judgment imposing that penalty payment.

45 The expression ‘judgment requiring the debtor to pay the creditor’s claim’, used in Article 7(2) of Regulation No 655/2014, must be read in its context, taking into account the provisions preceding Article 7(2) and those following it.

46 Thus, Article 6 of Regulation No 655/2014 expressly provides, in paragraph 3, that where the creditor has already obtained a judgment, jurisdiction ‘to issue a Preservation Order for the claim specified in the judgment’ shall lie with the courts of the Member State in which the judgment was issued.

47 Similarly, in accordance with Article 8(2)(g)(ii) of Regulation No 655/2014, the creditor can apply for a preservation order to be issued for ‘the amount of the principal claim as specified in the judgment … or [for] part thereof’.

48 Therefore, in so far as a judgment ordering a party to make a penalty payment in the event of a future breach of a prohibitory order does not contain the precise amount of the claim to be recovered, it cannot amount to a ‘judgment requiring the debtor to pay the creditor’s claim’, within the meaning of Article 7(2) of Regulation No 655/2014, exempting the creditor from the obligation to provide sufficient evidence to satisfy the court before which an application for a preservation order is brought that he or she is likely to succeed on the substance of his or her claim against the debtor.

49 That interpretation is supported by the objectives of Regulation No 655/2014, which is intended to establish an EU-level procedure, as an alternative to preservation measures under national law, enabling the efficient and speedy preservation of funds held in bank accounts by means of binding and directly applicable provisions (see, to that effect, judgment of 7 November 2019, K.H.K. (Account preservation), C‑555/18, EU:C:2019:937, paragraphs 31 and 32).

50 Article 7 of Regulation No 655/2014, read in conjunction with recital 14 thereof, seeks to strike an appropriate balance between the interests of the creditor and those of the debtor in so far as it lays down different conditions for the issue of a preservation order depending on whether the creditor has or has not already obtained, in a Member State, an instrument requiring the debtor to pay the claim. In particular, in the first situation, the creditor is required to establish only that the measure is needed as a matter of urgency on account of imminent risk, whereas in the second situation, he or she must also satisfy the court that he or she is likely to succeed on the substance of his or her claim (see, to that effect, judgment of 7 November 2019, K.H.K. (Account preservation), C‑555/18, EU:C:2019:937, paragraph 40).

51 As the Advocate General stated in point 75 et seq. of his Opinion, an interpretation of Article 7(2) of Regulation No 655/2014 to the effect that an order for a theoretically determinable amount, but the precise amount of which remains uncertain, would constitute a ‘judgment requiring the debtor to pay the creditor’s claim’, within the meaning of that provision, would be liable to jeopardise the balance referred to in paragraph 50 above, consisting in striking a balance between, as is apparent from recital 14 of that regulation, the interest of the creditor in obtaining a preservation order and that of the debtor in preventing abuse of such an order.

52 Consequently, the requirement that the precise amount of the claim to be recovered be established and, therefore, that the penalty payment be quantified prior to service of the preservation order is justified due to the need to strike a fair balance between the interests of the creditor and those of the debtor.

53 In that regard, it should be borne in mind that Belgian law, in so far as it applies provisions on penalty payments adopted following the approval of the Benelux Convention providing a uniform law on penalty payments, signed in The Hague on 26 November 1973, is different from the rules in force in the other Member States.

54 In order to address the difficulties that might have resulted from differences between the laws of the Member States on this point, a specific provision was inserted into Article 43 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), a rule according to which a ‘foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the [Member] State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the [Member] State in which the judgment was given’. That rule was restated in the same terms in Article 49 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and is now found, in essence, in Article 55 of Regulation No 1215/2012 (see, to that effect, judgment of 9 September 2015, Bohez, C‑4/14, EU:C:2015:563, paragraph 56).

55 Although Regulation No 655/2014 does not contain an equivalent rule on penalty payments, it cannot be inferred from this that the intention of the EU legislature was to exclude penalty payments from the scope of that regulation. Article 48(b) of Regulation No 655/2014 provides that that regulation is without prejudice to Regulation No 1215/2012. Moreover, the requirement that the precise amount of the claim to be recovered be established and that the penalty payment be quantified beforehand not only falls within the scope of the objective of effectiveness pursued by Regulation No 655/2014, but is also consistent with the balancing of interests pursued by that regulation (see, by analogy, judgment of 9 September 2015, Bohez, C‑4/14, EU:C:2015:563, paragraphs 46 and 57).

56 In the light of the foregoing considerations, the answer to the questions referred is that Article 7(2) of Regulation No 655/2014 must be interpreted as meaning that a judgment that orders a debtor to make a penalty payment in the event of a future breach of a prohibitory order and that therefore does not definitively set the amount of that penalty payment does not constitute a judgment requiring the debtor to pay the creditor’s claim, within the meaning of that provision, such that the creditor who requests a preservation order is not exempt from the obligation to provide sufficient evidence to satisfy the court before which an application for that order is brought that he or she is likely to succeed on the substance of his or her claim against the debtor.

57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 7(2) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters

must be interpreted as meaning that a judgment that orders a debtor to make a penalty payment in the event of a future breach of a prohibitory order and that therefore does not definitively set the amount of that penalty payment does not constitute a judgment requiring the debtor to pay the creditor’s claim, within the meaning of that provision, such that the creditor who requests a European Account Preservation Order is not exempt from the obligation to provide sufficient evidence to satisfy the court before which an application for that order is brought that he or she is likely to succeed on the substance of his or her claim against the debtor.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Starkinvest (Judicial cooperation in civil matters - European Account Preservation Order procedure - Concept of 'judgment' - Judgment) [2023] EUECJ C-291/21 (20 April 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C29121.html Cite as: EU:C:2023:299, [2023] EUECJ C-291/21, ECLI:EU:C:2023:299

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