Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment concerning the EAPO Regulation rendered by the District Court of Žilina (Okresný súd Žilina), Slovakia.

Can insolvency practitioners apply for a European Account Preservation Order (“EAPO”) against insolvent debtors to freeze their bank accounts? The District Court of Žilina (Okresný súd Žilina) in Slovakia confronted this issue in an EAPO application it received on January 2022. The EAPO Regulation expressly excludes the use of the EAPO Regulation for “claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened” (Art. 2(2)(c) EAPO Regulation). This is the same exclusion that can be found in Art. 1(2)(b) the Brussels I bis Regulation. Recital 8 of the EAPO Regulation reiterates that the Regulation “should not apply to claims against a debtor in insolvency proceedings” remarking that the EAPO “can be issued against the debtor once insolvency proceedings as defined in Council Regulation (EC) No 1346/2000 (now Regulation No 2015/848)”. At the same time, Recital 18 states that that exclusion should not prevent the use of an EAPO “to secure the recovery of detrimental payments made by such a debtor to third parties”.

In the instant Slovakian case, an insolvency practitioner requested an EAPO application against an insolvent debtor. The objective was to integrate the funds recovered through the EAPO into the insolvency estate. The insolvency practitioner applied for the EAPO once no assets were found in Slovakia. The EAPO application included a request to investigate the debtors’ bank accounts in Austria. One of the creditors suspected the debtor “had misappropriated funds and stashed them in offshore accounts”. The District Court of Žilina (Okresný súd Žilina) considered that, since the EAPO was requested against the debtor, such a request fell within the insolvency exclusion. Thus, the EAPO Regulation was not applicable. This court embraced the most literal sense of the insolvency exclusion. However, from a teleological perspective, the insolvency exclusion aims at preventing individual creditors from using the EAPO to undermine an insolvency estate during bankruptcy proceedings. In this case, the EAPO was used in favour of the insolvency estate. Had the EAPO been successful, it would have served to increase it.

The present case serves as an example to show that the boundaries of the EAPO insolvency exclusion are blurred. Perhaps, in the future, a similar case might reach the CJEU and help cast further light on the EAPO’s insolvency exclusion.

The 9th Journal of Private International Law conference will be hosted by the Yong Pung School of Law, Singapore Management University on 3rd to 5th August 2023. A reminder that the deadline to submit abstracts is Friday 16 December 2022. The Call for Papers can be found here and the conference website is available here. The conference organisers look forward to welcoming you to Singapore next year.

On 2 December 2022, from 4 pm to 5.30 pm (MET), the European Association of Private International Law (EAPIL) will hold a joint Seminar with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation and will, in this context, shed light on the Study that was prepared in 2021 by BIICL and Civic Consulting to support the preparation of the Commission report on the Regulation’s application. The seminar will focus on general issues as well as a selection of specific subjects.

Programme

4.00 pm: Introduction – Overview of the Study

       Constance Bonzé, BIICL (UK) and Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)

4.15 pm: Focus I – Financial Loss

       Xandra Kramer, University of Rotterdam (Netherlands)

4.25 pm: Focus II – Artificial Intelligence

       Martin Ebers, University of Tartu (Estonia)

4.35 pm: A View from Practice

       Marie Louise Kinsler, KC, 2 Temple Gardens, London (UK)

4.45 pm: Discussion

Participation and Registration

The Seminar will take place via Zoom. Registration is possible via this link. Registered participants will receive all necessary information one day prior to the event (i.e. on 1 December 2022).

Background

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

The first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention will be held today in The Hague and will last until 11 November 2022. This event is remarkable given that this is the first time that the practical operation of this Convention is assessed since its entry into force on 1 January 2009.

A few topics of the agenda are worthy of note. I would like to highlight two:

The first topic deals with the tools to assist with the implementation of the 2000 Convention and is broken down as follows:

• Improving accessibility to the existing model forms
• Direct judicial communications and a possible network of judges under the 2000 Protection of Adults Convention. See here.
• Finalisation and adoption of the Practical Handbook on the Operation of the 2000 Protection of Adults Convention
• Finalisation and adoption of the Implementation Checklist under the 2000 Protection of Adults Convention
• Finalisation and adoption of the 2000 Protection of Adults Convention Country Profile

The second topic and undoubtedly fascinating to any international lawyer – if only with regard to treaty law – is the agenda item: Possible amendments to the 2000 Convention. For more information, click here. This agenda item contains the following sub-items:

• Interest in deleting the terms “guardianship” and “curatorship” (Art. 3(c))
• Interest in adding a new conflict rule for “ex lege representation”
• Interest in adding a provision on “instructions given and wishes made by the adult e.g. advance directives”
• Interest in adding final clauses allowing Regional Economic Integration Organisation to join the 2000 Convention
• Possible mechanisms to amend the 2000 Convention