The Effective Disclosure of the Debtor’s Assets in Enforcement Proceedings

Hess, Burkhard

doi:10.1007/978-981-16-5609-5_4

Burkhard Hess²⁶

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 91))

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Abstract

Every efficient enforcement system needs to provide for sufficient transparency of the financial situation of the debtor, especially as concerns information about the location of the debtor’s assets. This article assesses latest developments in Germany and in European Union law, especially Regulation (EU) 655/2021 on the European Account Preservation Order.

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Notes

1.
In some instances, the need also arises to locate the debtor’s place of residence. German procedural law addresses this issue in Section 755 ZPO:
1. (1)
  “Where the debtor’s place of residence or his usual place of abode is not known, the court-appointed enforcement officer is permitted to determine the debtor’s place of abode, based on the enforcement instructions and due to his having been physically handed over the enforceable execution copy, by obtaining the current addresses along with information on the debtor’s main residence and secondary residence from the registration authority.
2. (2)
  Should it not be possible to determine the debtor’s place of abode pursuant to subsection (1), the court-appointed enforcement officer is permitted to take the following actions:
  
  1.
  To initially obtain from the Central Register of Foreigners information on the foreigners authority keeping the files on the debtor, along with information on the debtor’s having moved to or from a location, and subsequently to obtain the debtor’s place of abode from the foreigners authority keeping the files on the debtor identified by the inquiry made with the Central Register of Foreigners.
  
  2.
  To obtain from the statutory pension insurance funds the address of the debtor as currently filed there, as well as his current or future place of abode.
  
  3.
  To obtain from the Federal Motor Transport Authority (Kraftfahrt-Bundesamt) the vehicle keeper information pursuant to Section 33 (1), first sentence, no. 2 of the Road Traffic Act (Strassenverkehrsgesetz, StVG)”.
2.
Hess, Rechtspolitische Perspektiven der Zwangsvollstreckung, Juristenzeitung 2009, 662, 664.
3.
Recent reforms of the German enforcement law tried to overcome this situation by reinforcing the role of the bailiff in the enforcement proceedings, see infra at B I..
4.
The principle is stated in Section 804 (1) and (3) ZPO which read as follows: “(1) By the attachment, the creditor acquires a security right to the object so attached. (3) Any security right established by an earlier attachment shall take precedence before a security right established by a subsequent attachment”.
5.
In this regard, it must be added here that public creditors in Germany have additional advantages in enforcement proceedings: They dispose over the most comprehensive information about the financial situation of the debtor and they are even authorized to establish enforceable titles via administrative acts – without any prior intervention of the court.
6.
Information available at: https://www.schufa.de/en/about-us/company/schufa-facts-figures/inhaltsseite_7.jsp (visited on October 27, 2019).
7.
This «privatization» of the access to information on the debtor’s financial situation is a major matter of concern, cf. Hess, Juristenzeitung 2009, 662, 664 et seq.
8.
See infra at 2.2.
9.
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 (EAPO Regulation).
10.
Article 14 reads as follows: (1) Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified.
11.
Regulation 4/2009 of 18 December 2008, OJ 2009 L 7/1 et seq.
12.
Trocker, The Right to Effective Enforcement of Civil Judgments and Orders: Lessons from the Case Law of the European Court of Human Rights, in: Stürner/Kawano (ed.), Comparative Studies on Enforcement and Provisional Measures (2011), p. 21 et seq. referring to the landmark decision of the ECtHR, 19/3/1997, Hornsby v. Greece, para 40.
13.
Hergenröder, Das Vermögensverzeichnis - Auskunftspflichtige und Auskunftspflichten, DGVZ 2018, 221.
14.
Gesetz zur Reform der Sachaufklärung in der Zwangsvollstreckung (ZwVollStrÄndG) vom 29. Juli 2009, in force since 1 January 2013, BGBl. 2009 I 2258.
15.
Stein/Jonas/Würdinger, Vor, Section 802a ZPO (Commentary, 23rd ed. 2017), para 1; Vollkommer, NJW 2012, 3681; Hess, Juristenzeitung 2009, 662, 664.
16.
However, the German lawmaker refrained from transferring the competence for garnishments to the bailiff. Consequently, the decentralized (and fragmented) structure of the German enforcement organs was maintained, critically, Würdinger, Die Sachaufklärung in der Zwangsvollstreckung, Juristenzeitung 2011, 177, 185 seq.; Hess, Die Neuorganisation des Gerichtsvollzieherwesens in Deutschland (2006), p. 58 et seq.
17.
Stein/Jonas/Würdinger, Section 802c ZPO (Commentary, 23rd ed. 2017), para 1 (Systemwechsel); Alfasser, Sachaufklärung in der Zwangsvollstreckung (2018), p. 12 et seq.
18.
This entails that the creditor must explicitly apply for it, cf. Vollkommer, NJW 2012,
19.
Section 802l ZPO reads as follows: “(1) Where the debtor does not comply with his obligation to provide information on his financial circumstances and the assets he owns, or if it is foreseeable that the enforcement against the assets listed therein will not achieve the full satisfaction of the creditor, the court-appointed enforcement officer may.
1. 1.
  Obtain from the statutory pension insurance funds the name, the first names, or the company name of the debtor, as well as the addresses of the current employers in whose services the debtor is working under an employment relationship entailing the obligation to make compulsory social insurance contributions;
2. 2.
  Request that the Federal Central Tax Office (Bundeszentralamt für Steuern) retrieve the data designated in Section 93b (1) of the Fiscal Code (Abgabenordnung, AO) from credit institutions (Section 93 (8) of the Fiscal Code);
3. 3.
  Obtain from the Federal Motor Transport Authority (Kraftfahrtbundesamt) the data on the vehicle and the vehicle keeper pursuant to Section 33 (1) of the Road Traffic Act (Strassenverkehrsgesetz, StVG) for any vehicle regarding which the debtor has been entered as the vehicle keeper.
(2) The court-appointed enforcement officer shall delete or block, without undue delay, any data not required for enforcement purposes. A record is to be prepared of the deletion…”.
20.
The content of the declaration corresponds largely to the former declaration of the debtor (cf. the former sec. 807 ZPO), Alsfasser, Sachaufklärung, p. 28 et seq.
21.
https://justiz.de/onlinedienste/vollstreckungsportal/index.php.
22.
In practice, private service provider collected the information held in the decentralized registers and offered it (against payment) to interested creditors, cf. Hess, Die Neuorganisation des Gerichtsvollzieherwesens in Deutschland (2006), p. 20 et seq.
23.
Alsfasser, Sachaufklärung, p. 48 et seq.
24.
Vollkommer, NJW 2012, 3681, 3684.
25.
Beck-Online Commentary/Fleck, Sec. 802 l ZPO, para 2.
26.
In the practice, the statutory pension fund insurance does not answer to requests for claims below 500 EUR as the Section 74a Sozialgesetzbuch X requires an enforceable claim of more than 500 EUR. Obviously, the German lawmaker was not sufficiently aware of the applicable legal framework, Beck-Online Commentary/Fleck, Section 802l ZPO, para 5.
27.
Vollkommer, NJW 2012, 3681, 3686.
28.
Hess, Europäisches Zivilprozessrecht (2nd ed. 2020), Section 10 III with further references.
29.
See footnote 28.
30.
Hess/Spancken, in: Beaumont et al. (ed.) The Recovery of Maintenance (2015), pp 385–410.
31.
Hess, Europäisches Zivilprozessrecht (2nd ed. 2020), Section 7 IV, with further references.
32.
Cf. Article 61 (2) Regulation 4/2009.
33.
https://www.bundesjustizamt.de/DE/Themen/Gerichte_Behoerden/ZAEK/ZAEK_node.html;jsessionid=982CEA87B557509B1D0EE13C45A52904.2_cid500.
34.
Section 17 Auslandsunterhaltsgesetz, cf. Münchener Kommentar FamFG/Lipp, Article 61 EU-Unterhaltsverordnung (2nd ed. 2018), para 16.
35.
This part of the paper is based on empirical research provided by Carlos Santaló Goris, research fellow at the MPI Luxembourg.
36.
The United Kingdom is not bound by this instrument, creditors located in the United Kingdom are not entitled to make use of the Regulation, see Recital 40.
37.
Article 8 reads as follows: “(1) Applications for a Preservation Order shall be lodged using the form established in accordance with the advisory procedure referred to in Article 52(2). (2) The application shall include the following information: (…).
1. (a)
  a number enabling the identification of the bank, such as the IBAN or BIC and/or the name and address of the bank, with which the debtor holds one or more accounts to be preserved;
2. (b)
  if available, the number of the account or accounts to be preserved and, in such a case, an indication as to whether any other accounts held by the debtor with the same bank should be preserved;
3. (c)
  where none of the information required under point (d) can be provided, a statement that a request is made for the obtaining of account information pursuant to Article 14, where such a request is possible, and a substantiation as to why the creditor believes that the debtor holds one or more accounts with a bank in a specific Member State”.
38.
Commission Implementing Regulation (EU) 2016/1823 of 10 October 2016 establishing the forms referred to in Regulation (EU) No 655/2014, OJ 2016 L 283.
39.
Article 14 (2) EAPO-Regulation: “The creditor shall make the request referred to in paragraph 1 in the application for the Preservation Order. The creditor shall substantiate why he believes that the debtor holds one or more accounts with a bank in the specific Member State and shall provide all relevant information available to him about the debtor and the account or accounts to be preserved”.
40.
ECJ, Case C-555/18, K.H.K. (Saisie conservatoire des comptes bancaires) [2019] ECLI:EU:C:2019:652, Opinion AG Szpunar, para. 7 et seq.
41.
According to Article 50(1)(b), by 17 July 2016, the Member State had to communicate to the Commission “the authority designated as competent to obtain account information.” Until today, all Member States but Romania have appointed their respective national information authorities. On 10 October 2019, the European Commission initiated a sanctions procedure against Romania for failing to appoint an information authority.
42.
Especially France and the Netherlands where the bailiffs (organized as liberal professionals) act as the competent organ for all enforcement proceedings.
43.
European Account Preservation Order. National information and online forms concerning Regulation No. 655/2014. <https://e-justice.europa.eu/content_european_account_preservation_order-379-en.do>, accessed on 26 October 2019.
44.
Requesting a declaration from the debtor may deprive the creditor of the “surprise effect” as the debtor gets a warning about the imminent enforcement proceedings.
45.
This vague term contradicts many time limits found in other provisions of the Regulation.
46.
In Luxembourg, the information authority sends a general request by e-mail to all banking institutions in the country.
47.
This is the case in Belgium Bulgaria, Croatia, France, Germany, Italy, Lithuania, Poland and Spain.
48.
IC2BE, cf. Cross-Border Enforcement in Europe: Civil Justice Framework, National Courts and the Court of Justice of the European Union—(JUST-AG-2016–02), https://www.mpi.lu/research/department-of-european-and-comparative-procedural-law/research-projects/ic2be-project/.
49.
The critic of Weiss, Selbstbezichtigungsfreiheit und vollstreckungsrechtliche Vermögensauskunft, NJW 2014, 503 et seq. is not justified; cf. Alfasser, Sachaufklärung, p. 70 et seq.
50.
Bundesverfassungsgericht, 19 October 1982, NJW 1983, 559.
51.
Vollkommer, NJW 2012, 3681, 3685.
52.
Alternatively, a limitation of the access to the bailiffs might be an option, Alfasser, Sachaufklärung, p. 67 et seq.
53.
This restriction is imposed by data protection.

References

Hess (2009) Rechtspolitische Perspektiven der Zwangsvollstreckung. Juristenzeitung 662, 664
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Trocker (2011) The right to effective enforcement of civil judgments and orders: lessons from the case law of the European Court of Human Rights. In: Stürner/Kawano (ed) Comparative studies on enforcement and provisional measures, p 21
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Max Planck Institute Luxembourg, Luxembourg, Luxembourg
Burkhard Hess

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Faculty of Law, Ritsumeikan University, Kyoto, Japan
Masahisa Deguchi

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Hess, B. (2022). The Effective Disclosure of the Debtor’s Assets in Enforcement Proceedings. In: Deguchi, M. (eds) Effective Enforcement of Creditors’ Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 91. Springer, Singapore. https://doi.org/10.1007/978-981-16-5609-5_4

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DOI: https://doi.org/10.1007/978-981-16-5609-5_4
Published: 28 November 2021
Publisher Name: Springer, Singapore
Print ISBN: 978-981-16-5608-8
Online ISBN: 978-981-16-5609-5
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