The European Account Preservation Order, a New Provisional Measure for IP Cross-border Disputes
Next January 2017, Regulation (EU) No. 655/2014 establishing a European Account Preservation Order (EAPO) for civil and commercial matters will come into force. The Regulation establishes a uniform procedure applicable in all Member States of the European Union to request interim or precautionary measures consisting on the freezing of one or more bank accounts, for the purpose of preventing the transfer or withdrawal of funds.
In IP litigation, the EAPO appears as particularly appealing in cases where the plaintiff wishes to ensure the effectiveness of a hypothetical ruling awarding an economical compensation for damages and/or legal costs.
However, it should be noted that the EAPO is only applicable in “cross-border cases”, which are understood to be those cases where the EAPO is requested before a Court located in a Member State other than the one where the bank account is situated, or those cases where the creditor is domiciled in a Member State other than the one where the Court and the bank account are located.
The EAPO does not substitute national procedures, but will rather act as a supplement for the granting of this type of actions in the Member States. Therefore, the plaintiff can choose between one or the other.
The procedure starts with a written application, which will be lodged using the form annexed to the Regulation. It must be accompanied with sufficient evidence to convince the judge of the urgent need to grant the measure.
The EAPO must be requested before the courts with jurisdiction to hear the substance of the dispute in accordance with Regulation 1215/2012 (Brussels I Regulation). In the case where the EAPO is requested to ensure the enforcement of an existing judgment, the jurisdiction correspond to the courts of the Member State where the judgement was adopted.
The EAPO can be applied before the main proceeding is started but in such a case, the complaint must be filed within 30 days, a term that can be prolonged in certain cases.
The procedure is carried out without the defendant being notified (ex parte procedure). If needed, the judge can asked provide further evidence and an audience of videoconference with the applicant.
The granting of the EAPO is subject to the provision by the plaintiff of a security for an amount sufficient to prevent abuse of the procedure provided for by this Regulation and to ensure compensation for any damage suffered by the debtor.
The plaintiff might be exempted for providing the security when the EAPO is requested to ensure the enforcement of an existing judgment.
The Regulation includes an exhaustive regulation of the liability of the plaintiff for the possible harm the defendant may suffer as a consequence of the Preservation Order due to fault on the plaintiff’s part.
Once granted, the EAPO shall be enforceable in the other Member States without the need for a declaration of enforceability. The measure shall be enforced in accordance with the procedures applicable to the enforcement of equivalent national orders in the Member State of enforcement.
The defendant can only ask for the revocation or modification of the EAPO before the court that adopted it in accordance with one of the grounds established in Arts. 33-35. For so doing, the defendant must follow the procedure established in Arts. 36 and following.
Related Posts:
- On the Different Interpretation of Forum Delicti Commissi in Relation to EU Trademarks and National Trademarks
- The Adoption of Provisional Measures in Cross-border IP Disputes in the Framework of the Brussels I Regulation
- AG Opinion on “Solvay”: cross-border interim measures in patent disputes
- International Jurisdiction in IPR Infringements Committed on the Internet – Revisiting CJUE decisions in “Pinckney” and “Hejduk”