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Last update: 04-11-2009
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Interim and precautionary measures - General Information

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“You have started an action in the courts, but proceedings are slow and you are feeling rather put off.”

You fear that your debtor will take advantage of the long-drawn-out procedures and the various redress facilities to escape his creditors before judgment is actually given. For example, he might be tempted to organise his own insolvency or to transfer his assets. If so it is in your interests to apply to the court for interim measures.

The court may order interim or precautionary measures against the debtor's assets. The purpose of all these measures is to anticipate the final judgment on the merits for a certain period so as to ensure that it will be possible to enforce it. But several situations have to be distinguished.

1. Precautionary measures

They have been defined by the Court of Justice of the European Communities as measures designed to safeguard rights the recognition of which is applied for in other proceedings in the court hearing the case on the merits and to preserve the status quo in both fact and law. In practice, such measures will enable the creditor to cover himself against the risk of not being paid by using two techniques: either the debtor is prevented from disposing of his assets or charges are registered on them so that if he does dispose of them they can be recovered from subsequent acquirers.

 Examples of precautionary measures:

  • Preventive attachment of movable property or sums of money belonging to the debtor;
  • Court receivership of contested property that must be preserved in its present condition until judgment has been given;
  • Attachment by way of mortgage on real property, business assets and valuable securities. There are rules as to publicity.
Conditions for ordering precautionary measures:
  • When you file your application, the court (which, depending on the Member State, may be the court hearing the case or a special court responsible for interim and precautionary measures) may ask you to provide evidence that your claim has a chance of succeeding and that there is a risk you will not be able to recover the debt from your debtor.
  • The court's order will specify the assets covered by the measure, up to a certain amount in proportion to your claim. There are lists of goods and assets that cannot be attached (clothing, food, certain items of furniture, a portion of wages or salaries) to ensure that the debtor and his family can still enjoy a decent standard of living. The debtor can challenge the measure and apply for the attachment to be lifted. If, after the case has been heard on the merits, you have obtained an enforceable final judgment, you can have the precautionary attachment converted into an execution order.

2. Interim measures

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In other urgent situations, purely precautionary measures will not always be enough. The court may therefore order certain interim measures having similar effects to the expected judgment on the merits. The final judgment may confirm or revoke these interim measures.

Like precautionary measures, interim measures are taken before judgment is given on the merits, which distinguishes them from provisional execution.

3. Provisional execution

You have had judgment given for you but there is still the possibility of an appeal or challenge. You wish to have the judgment enforced immediately as you are afraid that your debtor might appeal simply in order to delay the proceedings. In many such cases the court will order provisional execution of the judgment. Certain requirements may be imposed, depending on the country (urgency, security given by the creditor, principle of adversarial proceedings, claim not open to challenge although the judgment can still be appealed against, etc.).

A comparison of national legislation shows that there is an almost total absence of any definition of interim and precautionary measures and that legal systems differ rather widely. The gap between Member States widens further where the measures are liable to make proceedings on the merits superfluous and assist in circumventing the normal rules of jurisdiction. The powers of courts hearing applications for provisional enforcement are also very different - some Member States refuse to allow any decision that might anticipate the final outcome.

There are quite substantial differences in the conditions for ordering these measures. The urgency requirement is more and more often interpreted in quite broad terms, for instance.

There are also substantial differences in the nature of the goods and assets that can be affected, the type of measures available and the relationship between the court ordering interim or precautionary measures and the court hearing the case on the merits. Formal aspects are also far from uniform. In many Member States provisional measures require the approval of a court, which might be a specialised one in some and a general one in others, whereas in yet others this is not necessary. And the procedure is basically unilateral in many Member States but adversarial in others throughout the procedure, except in the most urgent cases, to avoid sudden surprises.

Clicking on the flag of each Member States will take you to information on the procedures relating to interim and precautionary measures and provisional execution in that Member State.

To find out more about legislation at the level of the European Community, click on the “Community law” icon.

Information on international conventions can be found be clicking on the “international law” icon.

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Last update: 04-11-2009

 
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