Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 20 October 2022 (1)

Case C‑291/21

Starkinvest SRL

(Request for a preliminary ruling from the tribunal de première instance de Liège (Court of First Instance, Liège, Belgium))

(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 – Concept of ‘judgment’ and of ‘judgment requiring the debtor to pay the claim’ – Judgment ordering a party to make a penalty payment for breach of a prohibitory order)

I.      Introduction

1.        This reference for a preliminary ruling arises from proceedings in which the Belgian company Starkinvest SRL is seeking authorisation to preserve any sums that may be held in the French bank account of an Irish company, under a European Account Preservation Order.

2.        The applicant in the main proceedings is seeking thereby to secure payment of a claim over penalty payments allegedly owed by that Irish company under a judgment delivered in Belgium ordering it to cease certain conduct subject to a penalty payment of EUR 2 500 per breach.

3.        As the Court has indicated, Regulation (EU) No 655/2014 (2) establishes different conditions for issuing a European Account Preservation Order (‘preservation order’) depending on whether the creditor has or has not already obtained an instrument requiring the debtor to pay the claim in the Member State of origin. 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 the creditor must also satisfy the court that the claim is likely to succeed on the substance. (3)

4.        The present case concerns whether the creditor, which has obtained a judgment ordering the debtor to make a penalty payment in the event that it breaches a prohibitory order imposed by that judgment, holds an instrument satisfying the requirements under Regulation No 655/2014 and is, accordingly, relieved of the obligation that exists in the second scenario.

II.    Legal context

A.      European Union law

5.        According to Article 4(5) and (8) of Regulation No 655/2014:

‘(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; ’

6.        Article 5 of that regulation, entitled ‘Availability’ states:

‘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.’

7.        Article 7 of that regulation, which sets out the 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.’

8.        Regulation (EU) No 1215/2012 (4) provides in Article 55 that ‘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.’

B.      Belgian law

9.        Under Belgian law, penalty payments are governed by Articles 1385bis to 1385nonies of the code judiciaire (Judicial Code). (5) Those provisions are derived from the convention Benelux de 1973 portant loi uniforme relative à l’astreinte (1973 Benelux Convention providing a uniform law on penalty payments). (6)

10.      According to Article 1385bis of that 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. …’

11.      According to Article 1385ter of the code:

‘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.’

12.      Under Article 1385quater of the Judicial Code, the enforceable instrument on the basis of which the penalty payment may be recovered is the judgment imposing the penalty and the beneficiary does not need to have the penalty payment finally determined prior to enforcement.

13.      The beneficiary of the penalty payment has the burden of proving that the conditions under which it falls due have been met. In the event of a challenge by the debtor, the beneficiary must produce evidence to establish the breaches alleged. It will then be for the enforcement court to decide whether the conditions under which the penalty payment falls due have been met.

III. The dispute in the main proceedings, the questions referred and the procedure before the Court of Justice

14.      By judgment of 3 September 2013 of the tribunal de commerce de Liège (Commercial Court, Liège, Belgium) in proceedings between Starkinvest and two companies (judgment of 3 September 2013), which was then confirmed by a judgment of the cour d’appel de Liège (Court of Appeal, Liège, Belgium) of 6 January 2015 (judgment of 6 January 2015), (7) those two companies were ordered, subject to a penalty payment of EUR 2 500 per breach, (8) to cease all sales of their products and services under the word mark SOFT PARIS in the Benelux countries.

15.      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.

16.      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 applied for authorisation to preserve, under a European Account Preservation Order, any sums up to EUR 85 000 that may be held in the French bank accounts of one of the companies involved in the proceedings, whose registered office is in Ireland.

17.      The referring court notes that a judgment ordering penalty payments in the event of breach of a prohibitory order does not indicate the exact amount of those penalties. That amount is therefore, by definition, unknown at the time that judgment is issued.

18.      Moreover, under Belgian law it is not necessary that the amount of the penalty payments be finally determined before the funds are preserved. As can be seen from the information provided by the persons concerned, breaches of prohibitory orders are declared only by a court officer (huissier). According to Belgian law, therefore, if the judgment imposing an order is enforceable and has been served, it is only in the context of a contested preservation procedure that a court rules, inter alia, on whether the penalty payments are due according to the obligations imposed.

19.      The referring court, hearing an application for a preservation order, must examine whether the conditions and requirements laid down by Regulation No 655/2014 are satisfied.

20.      The referring court acknowledges that, under Regulation No 655/2014, (9) a creditor holding a decision or instrument relating to a claim whose payment the creditor is seeking to secure, such as a judgment, court settlement or authentic instrument, is in a very different position from a creditor who holds no such decision or instrument.

21.      In that context, the referring court expresses doubts as to the interpretation of Regulation No 655/2014.

22.      Specifically, first, since ‘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’, the referring court is uncertain whether the penalty payment, whose principle and basic amount have been set in a judgment but where the amount payable varies depending on possible future breaches by the debtor, can be regarded as a ‘claim’ within the meaning of that provision.

23.      The referring court is of the view that, if a penalty payment can be regarded as a claim, the judgment imposing it could be regarded as a judgment ‘requiring the debtor to pay [the] claim’, within the meaning of Article 7(2) of Regulation No 655/2014. It notes that, were that so, the enforcement judge called upon to issue a European Account Preservation Order would have no power to review whether the claim concerned has any likelihood of success. According to the referring court, that review enables the court hearing the matter to verify that the penalty payment claimed is in fact due, that it is not time-barred and that all procedural rules have been complied with.

24.      Secondly, citing Article 55 of Regulation No 1215/2012, the referring court seems to be trying to draw the Court’s attention to the fact that, under that regulation, although a decision imposing a penalty payment is enforceable in the Member State of origin, it is only enforceable in the Member State addressed if the amount of the penalty has been finally determined by the court of origin. (10) The referring court is uncertain whether the same is true of Regulation No 655/2014, with the effect that the penalty payment must be quantified in order for a decision imposing a penalty payment to be classified as a ‘judgment’ within the meaning of Article 4(8) of that regulation.

25.      In those circumstances, by decision of 6 May 2021, received by the Court on 7 May 2021, the tribunal de première instance de Liège (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 1215/12]?’

26.      Starkinvest, the Belgian and Netherlands Governments and the Commission filed written observations. Starkinvest, the Belgian Government and the Commission were represented at the hearing on 16 June 2022.

IV.    Analysis

27.      The questions referred concern, as regards the first question, whether a judgment ordering a party to make a penalty payment in the event of breach of a prohibitory order constitutes a ‘judgment requiring the debtor to pay [the] claim’ within the meaning of Article 7(2) of Regulation No 655/2014 and, as regards the second, whether that judgment satisfies the definition of a ‘judgment’ as defined in Article 4(8) of that regulation.

28.      It would seem preferable either to reverse the questions referred, as the Belgian Government suggests, or to examine them together, as the Netherlands Government suggests. I favour the second suggestion.

29.      The Court’s answer to the questions referred will enable the referring court to determine the scope of the examination it needs to carry out in order to issue a preservation order.

30.      It can be seen from Article 17(1) of Regulation No 655/2014 that a court seised of an application for a preservation order must examine whether the conditions and requirements set out in that regulation are met. It should be emphasised in that context that both the questions referred concern the same aspect of that examination, that is to say, whether a national court hearing an application for a preservation order may review, inter alia, the existence and amount of the claim whose enforcement the creditor is seeking to secure by means of the protective measure.

31.      Furthermore, under Regulation No 655/2014, in relation to that aspect of the examination conducted by a court hearing such a matter, the fact that a creditor holds a ‘judgment’ within the meaning of Article 4(8) of that regulation, which is the scenario envisaged in the second question referred, does not make that creditor’s situation substantially different from that of a creditor which is not in possession of any judgment. According to Article 7(2) of that regulation, the creditor’s situation is only different where he or she has obtained a ‘judgment requiring the debtor to pay the creditor’s claim’, which is the scenario envisaged in the first question referred.

32.      There is therefore reason to find that, by the two questions it has referred, which can appropriately be examined together, the referring court is enquiring, in essence, whether Article 7(2) of Regulation No 655/2014 must be interpreted as meaning that a judgment which has been served, ordering the debtor to make a penalty payment in the event of breach of a prohibitory order, constitutes a ‘judgment requiring the debtor to pay [the] claim’ within the meaning of that provision, with the effect that the court hearing an application for a preservation order sought by a creditor in order to secure payment of the claim relating to that penalty payment is unable to verify the existence and amount of that claim.

A.      Positions of the persons concerned

33.      Only Starkinvest submits that both the questions referred should be answered in the affirmative.

34.      It can be seen from its written observations on the first question referred that, according to Starkinvest, the claim comprising the penalty payment is a ‘claim’ within the meaning of Article 4(5) of Regulation No 655/2014. It asserts that the amount of the penalty payment is clearly determinable and arises from an event that has already occurred, namely breach of the prohibitory order for a particular period, and that the amount of the payment became determinable as a result of the judgment of 6 January 2015.

35.      On the second question referred, Starkinvest asserts, first, that a preservation order is not an enforcement measure but a protective measure applied for in order to secure effective subsequent enforcement of the national judgment. In its view, Regulation No 655/2014 applies to a phase prior to enforcement and cannot be interpreted in the light of Regulation No 1215/2012.

36.      Secondly, Starkinvest argues that it is impossible in practical terms to apply Article 55 of Regulation No 1215/2012 in the protective measures phase because under Belgian law there is no action or remedy by means of which a creditor can have a penalty payment finally determined.

37.      The Netherlands Government observes that, according to Article 48(b) of Regulation No 655/2014, Regulation No 655/2014 is without prejudice to Regulation No 1215/2012. That government argues that European Account Preservation Orders also fall within the scope of Regulation No 1215/2012, which applies in civil and commercial matters. That government contends accordingly that, since Regulation No 655/2014 refers to a ‘judgment requiring the debtor to pay [the] claim’, that expression must be interpreted having regard to Article 55 of Regulation No 1215/2012. In its view, it is clear from that interpretation that a judgment imposing a penalty payment for possible future breaches of a prohibitory order does not constitute such a ‘judgment requiring the debtor to pay [the] claim’.

38.      In its written observations on the second question referred, the Belgian Government notes that the Court has already stated that in order for a creditor, which holds an instrument to be able to rely on Article 7(2) of Regulation No 655/2014, the instrument must be enforceable in the Member State of origin. (11) In its view, that statement must be read in conjunction with Articles 39 and 55 of Regulation No 1215/2012. According to the Belgian Government, a judgment ordering a party to make a penalty payment in the event of breach of the principal obligation, where the amount of that penalty has not been finally determined, does not constitute a ‘judgment’ within the meaning of Article 4(8) of Regulation No 655/2014.

39.      In respect of the first question referred, the Belgian Government notes, in addition, that a penalty payment is ancillary to an order imposing a principal obligation to act or refrain from acting and is intended to secure enforcement of that principal obligation. Failure to comply with that principal obligation is however, by definition, an event which has not taken place at the time the judgment ordering a party to make a penalty payment in the event of breach of the principal obligation is delivered.

40.      Furthermore, according to the Belgian Government, a judgment ordering a party to make a penalty payment in the event of breach of a prohibitory order does not constitute a judgment requiring the debtor to pay the claim because the procedure that led to that judgment cannot be regarded as ‘proceedings aimed at obtaining an enforceable title on the underlying claim’ within the meaning of recital 13 of Regulation No 655/2014. That government contends that the primary purpose of an order accompanied by a penalty payment is not the claim relating to the penalty payment itself but rather the obligation to act or refrain from acting.

41.      While not suggesting that the order of the questions referred should be reversed, the Commission states that, although a judgment ordering a debtor to make a penalty payment if the principal obligation laid down in the judgment has not been performed is a ‘judgment’ within the meaning of Article 4(8) of Regulation No 655/2014 (second question referred), such a judgment does not however constitute a ‘judgment requiring the debtor to pay [the] claim’ within the meaning of Article 7(2) of that regulation (first question referred).

B.      Assessment

1.      Preliminary remarks

42.      According to Article 7(2) of Regulation No 655/2014, in order for the creditor to be relieved of the obligation to satisfy the court hearing an application for a preservation order that the claim has a likelihood of success, the creditor must have ‘a judgment, … requiring the debtor to pay the creditor’s claim’. Article 5(b) of that regulation uses the same terms.

43.      In order to provide a response of use to the questions referred, it is therefore necessary to determine whether the creditor has a judgment requiring the debtor to pay the creditor’s ‘claim’ where it is in possession of a judgment that determines the basic amount of the penalty payable for each breach of a prohibitory order imposed by that judgment.

44.      The definition of ‘claim’ in Article 4(5) of Regulation No 655/2014 seems to be the cause of the referring court’s uncertainty. (12)

45.      That definition is made up of two parts, each relating to a different scenario: that of ‘a claim for payment of a specific amount of money that has fallen due’ (first part of the definition), and that of ‘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’ (second part of the definition).

46.      First, in so far as concerns the first part of that definition, it is necessary to determine whether a judgment setting the basic amount of a penalty payment for each breach of a prohibitory order imposed by that judgment constitutes a judgment requiring the debtor to pay a specific amount of money that has fallen due.

47.      My view is that it does not constitute such a decision in the present case.

48.      A judgment which determines the basic amount of a penalty payment, such as the judgments of 3 September 2013 and 6 January 2015, does not determine the amount payable by the debtor to the creditor. The amount payable is not even known at the time the court issues its judgment and is contingent on events subsequent to the judgment. Under Belgian law, that amount is instead determined on the basis of declarations made by a court official, (13) after any judgment is issued.

49.      Secondly, in so far as concerns the second part of that definition, it is necessary to determine whether, in order to find that the creditor has a judgment requiring the debtor to pay the creditor’s claim, the amount whose payment the creditor is seeking to secure by means of a preservation order only needs to be ‘determinable’ within the meaning of the second part of the definition given in Article 4(5) of Regulation No 655/2014.

50.      The starting point is whether the term ‘claim’ used in the expression ‘judgment requiring the debtor to pay [the] claim’ must also be understood within the meaning of the second part of that definition, according to which it is ‘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’.

51.      Examined on that point at the hearing, Starkinvest and the Commission asserted that this term must be construed with the meaning in the second part of the definition given in Article 4(5) of Regulation No 655/2014, (14) while the Belgian Government contended that the term must be understood only with the meaning in the first part of the definition.

52.      It is worth noting that the term ‘claim’ is used several times in Regulation No 655/2014 in different contexts.

53.      In principle, a concept must have the same meaning throughout a legislative text, irrespective of the context in which it appears in that text. According to that reasoning, identical terms used in the same EU act may be presumed to have the same meaning. (15)

54.      On the one hand, as can be seen from Article 1(1) of Regulation No 655/2014, a preservation order prevents the subsequent enforcement of a ‘claim’ from being jeopardised. (16) A preservation order must therefore always relate to a ‘claim’ within the meaning of Article 4(5) of that regulation and both parts of the definition of that concept are fully applicable in this context.

55.      On the other hand, however, in view of the characteristics of a ‘claim’ as defined in the second part of the definition of that concept, it is questionable whether the second part of the definition is relevant where the creditor is seeking to rely on a decision that determines the basic amount of a penalty payment in order to be relieved of the obligation to satisfy the court hearing an application for a preservation order that the claim has a likelihood of success.

56.      It is therefore necessary to examine those characteristics in the light of the requirements that Regulation No 655/2014 sets out in order for a creditor to be relieved of the obligation to satisfy the court that the claim has a likelihood of success. Those requirements concern, first, the fact that the judgment obtained by the creditor must specify the amount of the claim that the creditor is seeking to secure by means of a preservation order and, secondly, the need for that judgment to be obtained in the context of proceedings relating to that claim.

2.      The amount of the claim that the creditor is seeking to secure by means of a preservation order must be specified

57.      In order for a claim for payment to possess the characteristics in the second part of the definition of a ‘claim’ in Article 4(5) of Regulation No 655/2014, the claim merely needs to relate to the payment of a ‘determinable’ amount of money.

58.      As the Belgian Government argued at the hearing, the expression ‘a judgment requir[ing] the debtor to pay [the] claim’, which appears in both Article 5(b) and Article 7(2) of Regulation No 655/2014, must be read in conjunction with Article 8(2)(g)(ii) of that regulation.

59.      Pursuing that line of argument, it is clear from Article 8(2)(g)(ii) of Regulation No 655/2014, (17) read in the light of recital 12 of that regulation, (18) that 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’. Similarly, Article 6(3) of that regulation provides 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 …’. (19)

60.      In the same vein, according to the instructions in the form that must be used (20) to apply for a preservation order, (21) a creditor holding an instrument requiring the debtor to pay the creditor’s claim must indicate, in accordance with Section 8 of that form, in addition to information about the instrument, the amount to be preserved, which is either the amount indicated in the instrument, that is to say, the ‘principal amount awarded in the judgment’, or a lower amount. (22) That form also specifies that ‘the amount [for which a preservation order is sought] should generally be the amount set out in the judgment’.

61.      In the present case, the only amount set out in the judgment invoked by Starkinvest is the basic amount for each breach of the prohibitory order. (23) The amount corresponding to a multiple of the basic amount of a penalty payment for each breach of the prohibitory order, which Starkinvest is seeking to secure by means of a preservation order, is therefore inevitably higher than any amount that can be regarded as having been ‘specified’ by that judgment. Regulation No 655/2014 provides however that a preservation order can be issued in the amount of the principal of the claim, specified in the judgment, or in a lower amount.

62.      Even more importantly, although it is in theory ‘determinable’, the amount corresponding to a multiple of the basic amount of a penalty payment for each breach of the prohibitory order is not specified in the judgment imposing that order. Nor is that amount awarded by that judgment or set out in it.

63.      A judgment on which a creditor intends to rely in order to be relieved, under Article 7(2) of Regulation No 655/2014, of the obligation to satisfy the court hearing an application for a preservation order that the claim has a likelihood of success must therefore relate to an amount of money specified by that judgment rather than to a claim for payment of a determinable amount. That requirement is not satisfied where a judgment orders the debtor to make a penalty payment in the event of a breach of a prohibitory order imposed by that judgment.

3.      The judgment must be obtained in proceedings relating to an underlying claim

64.      Even were it desirable to understand the term ‘claim’ in the expression ‘judgment requiring the debtor to pay [the] claim’ with the meaning set out in the second part of the definition in Article 4(5) of Regulation No 655/2014, it would be necessary to bear in mind that, according to that part of the definition, the claim must arise from a ‘transaction’ or an ‘event that has already occurred’.

65.      The Belgian Government contended at the hearing that the second part of that definition of the term ‘claim’ can refer only to claims resulting from events, such as ‘a transaction’ or ‘an event that has already occurred’, which precede the issuance of the judgment (‘a claim [that] can be brought before a court’) on which the creditor intends to rely in order to be relieved of the obligation to satisfy the court hearing an application for a preservation order that the claim is likely to succeed.

66.      According to academic authorities, the second part of the definition of ‘claim’ should be read as meaning that the term ‘transaction’ refers to contracts or commercial activities capable of giving rise to contractual liability, whereas, according to those authorities, the term ‘event that has already occurred’ refers to torts and delicts giving rise to extra-contractual liability. (24) That interpretation is corroborated by recital 12 of Regulation No 655/2014, according to which ‘the preservation order should 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’. (25)

67.      For those purposes, a penalty payment for breach of a prohibitory order imposed by a judgment does not precede that judgment. Indeed, the prohibitory order itself is imposed by the judgment. That means therefore that the court which delivered the judgment in question did not examine the events in respect of which the penalty payment is due.

68.      I should note in that context that, when it distinguishes between the situation of a creditor which must satisfy the court hearing an application for a preservation order that its substantive claim is well founded and the situation of a creditor in possession of an instrument relieving it of that obligation, Article 5 of Regulation No 655/2014 describes the first situation as being that of a creditor before ‘the creditor initiates proceedings in a Member State against the debtor on the substance of the matter’ and ‘at any stage during such proceedings up until the issuing of the judgment’. (26) In order to be in the second situation, therefore, the creditor must hold an instrument issued in such proceedings on the substance of the matter.

69.      Although the concept of ‘proceedings on the substance of the matter’ is broad in scope, (27) recital 13 of Regulation No 655/2014 nevertheless specifies that in order to be covered by that notion, proceedings must be aimed at obtaining an enforceable title on the underlying claim. (28)

70.      The claim and its validity must therefore have been examined in proceedings on the substance of the matter, that is to say, it must have already been brought before a court. In consequence, it is not sufficient for the claim to be one that can be brought before a court, as provided for in the second part of the definition of ‘claim’ in Article 4(5) of Regulation No 655/2014. That is why, according to the rationale of Article 7(2) of that regulation, where the creditor has already obtained an instrument it is no longer necessary to examine the validity of the claim to which that instrument relates.

71.      In the same vein, academic commentators, referring to the clarification in recital 13 of Regulation No 655/2014, have observed that proceedings that are not aimed at obtaining an enforceable instrument ordering the debtor to pay the monetary claim that the preservation order is intended to protect should not be covered by the concept of ‘proceedings on the substance of the matter’. According to that academic interpretation, ‘provisional and protective measures intended to obtain evidence, asset freezing orders and equivalent national measures, such as the saisie conservatoire in the law of French-speaking countries’, must therefore fall outside that concept. (29)

72.      Similarly, a financial penalty imposed in the event of breach of a prohibitory order does not constitute an underlying claim to which the judgment imposing that order relates.

73.      Where a penalty payment is due as a result of a prohibitory order being breached, the claim does not exist at the time the judgment imposing the penalty is issued. With even more reason, the court that delivered that judgment did not examine whether, and in respect of which breaches, the penalty payment is due. A financial penalty imposed for breach of a prohibitory order therefore does not constitute an underlying claim in the proceedings in which a judgment imposing that penalty was delivered. (30) The creditor therefore cannot rely on that judgment in order to be relieved, under Article 7(2) of Regulation No 655/2014, of the obligation to satisfy the court hearing an application for a preservation order that its claim relating to the penalty payment has a likelihood of success.

74.      That reading of Article 7(2) of Regulation No 655/2014 is corroborated by an interpretation based on the scheme and purpose of that regulation from which it emerges that the regulation seeks to strike a balance between the interests of the creditor and those of the debtor.

4.      Balancing the interests of the creditor and those of the debtor

75.      As recital 14 of Regulation No 655/2014 confirms, the conditions for issuing the preservation order should strike an appropriate balance between the interest of the creditor in obtaining a preservation order and that of the debtor, in preventing abuse of such an order. That balance would be jeopardised were the Court to adopt the interpretation according to which a judgment ordering the debtor to make a penalty payment in the event of breach of a prohibitory order constitutes a ‘judgment requiring the debtor to pay [the] claim’ within the meaning of Article 7(2) of Regulation No 655/2014.

76.      As the referring court notes, upholding that interpretation would mean that the court hearing an application for a preservation order by means of which a creditor seeks to guarantee payment of the claim linked to that penalty payment would be deprived of any power to review the likelihood of success of the claim invoked. If the creditor provides sufficient evidence to satisfy the court hearing the application for a preservation order that a protective measure is needed as a matter of urgency, that court is obliged to issue the preservation order applied for by that creditor.

77.      Furthermore, in such a situation, the debtor is not able to initiate a review of whether the claim invoked is likely to succeed.

78.      Articles 33 and 34 of Regulation No 655/2014 establish remedies against preservation orders and against their enforcement. Those remedies are exhaustive. The debtor therefore cannot initiate revocation of a preservation order either by means of an action based on the national provisions or on grounds other than those established by Regulation No 655/2014.

79.       Where a creditor is seeking to guarantee an amount by means of a preservation order based on a judgment requiring the debtor to pay that debt, Regulation No 655/2014 does not provide any opportunity for a debtor to assert that the amount in question is not due.

80.      Since there is no judgment on the substance of the matter specifying that the creditor is entitled to claim a multiple of the basic amount of the penalty payment, the debtor cannot, in the Member State of origin, initiate the annulment of such a decision in order subsequently to rely on the remedy established in Article 33(1)(g) of Regulation No 655/2014. (31)

81.      Under those circumstances, the requirement that the penalty payment must be finally determined before a preservation order is issued may be justified by the need to strike an appropriate balance between the interests of the creditor and those of the debtor. I would emphasise that the Court followed that line of argument in a different context concerning a regulation which, in common with Regulation No 655/2014, contains no provision equivalent to Article 55 of Regulation No 1215/2012. (32)

82.      For the sake of completeness, I would clarify that the finding that a judgment which has been served ordering the debtor to make a penalty payment in the event of breach of a prohibitory order does not constitute a ‘judgment requiring the debtor to pay [the] claim’ and does not relieve the creditor of the obligation to satisfy the court hearing an application for a preservation order that the claim is likely to succeed does not mean that the judgment in question is meaningless for the creditor.

83.      The creditor can annex that judgment to its application for a preservation order, together with documents provided by a court official in which the court official declares the breaches of the prohibitory order, for the purposes of seeking to satisfy the court hearing the application that the claim relating to the penalty payment is valid.

V.      Conclusion

84.      In the light of the foregoing, I propose that the Court answer the questions referred by the tribunal de première instance de Liège (Court of First Instance, Liège, Belgium) for a preliminary ruling as follows:

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 which has been served, ordering the debtor to make a penalty payment in the event of breach of a prohibitory order, does not constitute a ‘[judgment] requiring the debtor to pay [the] claim’ within the meaning of that provision, with the effect that the court hearing an application for a European Account Preservation Order sought by the creditor in order to secure payment of the claim relating to that penalty payment must verify the existence and amount of that claim.

1      Original language: French.

2      Regulation 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).

3      Judgment of 7 November 2019, K.H.K. (Account preservation) (C‑555/18, EU:C:2019:937, paragraph 40).

4      Regulation 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).

5      Moniteur belge of 31 October 1967.

6      I would point out that the wording of the relevant national provisions is not included in the request for a preliminary ruling. It is, however, included in the written observations of the Belgian Government and of the European Commission.

7      It can be seen from the written observations of the persons concerned that the proceedings in which those judgments were delivered were not brought by Starkinvest. Starkinvest in fact submitted its claims as counterclaims in proceedings brought by the two companies concerned against it and its manager. Those companies asked the first-instance court to find the application to register the marks and other logos to be ‘null and void and in bad faith’ and to find the use of certain marks to be contrary to fair market practice. In their counterclaims, Starkinvest and its manager sought, inter alia, a finding that those exclusive rights and their copyright had been infringed, an order to cease the infringements, subject to a financial penalty, and an award of damages against those companies.

8      Specifically, it can be seen from the annexes submitted by Starkinvest that the first-instance court set a penalty payment of ‘EUR 1 000 per breach and per day of delay’, whereas the second-instance court set a penalty of ‘EUR 2 500 per breach’. In its request for a preliminary ruling, the referring court states that Starkinvest has based its claim on penalty payments under the judgment delivered by the second-instance court.

9      See point 3 of this Opinion.

10      Regulation No 1215/2012 does indeed provide, first, in Article 39, that ‘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’ and, secondly, in Article 55, that ‘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.’

11      Judgment of 7 November 2019, K.H.K. (Account preservation) (C‑555/18, EU:C:2019:937).

12      See point 22 of this Opinion.

13      See point 18 of this Opinion.

14      I should highlight that the first part of the definition relates to claims for payment of sums that have fallen due, and the second part to claims of sums that are not yet due, as recital 12 of Regulation No 655/2014 makes clear. Although Starkinvest submits that the second part of that definition is also relevant, it appears nevertheless not to be arguing that its claim for payment of a multiple of the basic amount of the penalty payment has not yet fallen due.

15      See, to that effect, judgment of 30 January 2019, Planta Tabak (C‑220/17, EU:C:2019:76, paragraph 67).

16      In the same vein, the concept of ‘claim’ is used, with the same meaning, in Article 4(6) and (7) of Regulation No 655/2014 to define ‘creditor’ and ‘debtor’ as, respectively, a person who or which applies for, or has already obtained, a preservation order relating to a claim, and a person against whom or which the creditor seeks to obtain, or has already obtained, such an order relating to a claim.

17      That provision provides that ‘where the creditor has already obtained a judgment, court settlement or authentic instrument, [the application for a preservation order shall contain] 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’. Emphasis added.

18      The third sentence of recital 12 states that ‘a creditor should be able to request that the preservation order be issued in the amount of the principal claim or in a lower amount.’

19      Emphasis added.

20      See Cuniberti, G., Migliorini, S., L’ordonnance européenne de saisie conservatoire des comptes bancaires: commentaire du règlement UE n ^o 655/2014. Belgique, France, Luxembourg, Legitech, 2021, p. 130.

21      Commission Implementing Regulation (EU) 2016/1823 of 10 October 2016 establishing the forms referred to in [Regulation No 655/2014] (OJ 2016 L 283, p. 1).

22      Cuniberti, G., Migliorini, S., op. cit., p. 137.

23      For the sake of completeness I would observe that, under the Belgian legislation, apart from the basic amount, the only other amount that can be determined in such a judgment is the amount above which the order to pay the penalty payment will cease to have effect (see point 11 of this Opinion). In fact the Belgian Government confirmed at the hearing that in practice the national courts had not exercised that power.

24      Villamarín López, M.L., ‘Article 4: Definition’, The European Account Preservation Order. A Commentary on Regulation (EU) No 655/2014, D’Alessandro, E., Gascón Inchausti, F. (eds), 2022, pp. 53 and 54.

25      Emphasis added.

26      Recital 11 of Regulation No 655/2014 describes that first situation as that of a ‘creditor wishing to secure the enforcement of a later judgment on the substance of the matter prior to initiating proceedings on the substance of the matter and at any stage during such proceedings’.

27      See judgment of 7 November 2019, K.H.K. (Account preservation) (C‑555/18, EU:C:2019:937, paragraph 47).

28      The second and third sentences of recital 13 of Regulation No 655/2014 states that ‘for the purposes of this Regulation, the notion of proceedings on the substance of the matter should cover any proceedings aimed at obtaining an enforceable title on the underlying claim including, for instance, summary proceedings concerning orders to pay and proceedings such as the French “procédure de référé”. If the debtor is a consumer domiciled in a Member State, jurisdiction to issue the Order should lie only with the courts of that Member State’.

29      Cuniberti, G., Migliorini, S., op. cit., pp. 151 and 152.

30      It should be noted for the sake of completeness that the proceedings in which the judgments of 3 September 2013 and 6 January 2015 were delivered were aimed at obtaining, inter alia, a prohibitory order and an award of damages. See footnote 7 to this Opinion.

31      Article 33(1)(g) of Regulation No 655/2014 provides that ‘upon application by the debtor to the competent court of the Member State of origin, the preservation order shall be revoked or, where applicable, modified on the ground that … the judgment on the substance of the matter, or the court settlement or authentic instrument, the enforcement of which the creditor was seeking to secure by means of the Order has been set aside or, as the case may be, annulled’.

32      See, to that effect, judgment of 9 September 2015, Bohez (C‑4/14, EU:C:2015:563, paragraph 57), which concerned the enforcement of a penalty payment ordered by a Belgian court in the context of the provisions on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.

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