Green Ltd: A View from Antwerp

This post was written by Emilia Sandri, who is a doctoral candidate at the University of Antwerp. This is the second contribution to the online symposium on Mr Green LTD.

On 21 May 2026, the ECJ delivered its ruling in Mr Green, providing the first authoritative guidance on the conditions for issuing a preservation order under Article 7(1) of the European Account Preservation Order Regulation. The judgment forms part of a growing series of legal battles surrounding Article 56A of the Maltese Gaming Act, an amendment introduced in 2023 requiring Maltese courts to refuse recognition and enforcement of foreign judgments against Malta-licensed gaming companies. This post analyses the ruling and engages with the conclusions of a previous post on the same case.

Background

A consumer (TQ) lost over EUR 60 000 gambling online from Austria on Mr Green’s platform, a company registered in Malta and operating in Austria without a local licence. In 2021, TQ obtained a judgment ordering repayment from an Austrian court and, in 2024, he applied for an EAPO targeting Mr Green’s bank accounts in several Member States, relying on (i) Mr Green’s termination of its contract with an Austrian payment service provider, and (ii)  Article 56A of the Maltese Gaming Act, which would make enforcement in Malta impossible. The EAPO was refused on the grounds that TQ had waited three years to apply and had not shown that enforcement had been made substantially more difficult. On appeal, the higher Austrian court asked the ECJ whether delays in applying and enforcement obstacles should be considered in the EAPO’s issuance.

The hidden cost of intentionality  

The Court held that a “real risk” justifying the EAPO’s issuance under Article 7(1) must originate in the debtor’s intentional conduct to evade payment, with the Maltese law forming merely a contextual element. This reading risks impairing the Regulation’s objective of balancing the parties’ interests, favouring the debtor.

To obtain an EAPO, the creditor must show an imminent risk that the debtor may dissipate, conceal, destroy or undervalue assets (para 44). The Court identified in Recital 14 a series of circumstances that may demonstrate the debtor’s intentional conduct, including past actions in relation to the claim, credit history, recent movement of the assets (para 51). The termination of Mr Green’s contract with its Austrian payment provider was particularly relevant, as a credit balance with a payment operator may be one of the few enforceable assets of an online company (para 58). The previous post questioned why the closure of a bank account – not unlawful in itself – should trigger the real risk assessment. That observation does not undermine the ECJ’s reasoning: none of the circumstances listed in Recital 14 is unlawful per se. What matters is the picture that emerges from all of them taken together. The issuing court must carry out an overall assessment (para 55), and the creditor cannot be required to prove direct intention to evade payment, since that would be practically impossible (para 52). Closing a payment account is relevant not because it is wrongful, but because it may form part of a pattern indicating intentional evasion, as the Court’s contextual reasoning demonstrates (para 58).

Moreover, the ECJ held that the court issuing an EAPO may consider the debtor’s past conduct, irrespective of when it took place (para 57). The previous post criticised this as vague, penalising the debtor. However, the absence of a fixed temporal limit is a deliberate feature of a risk-based assessment: Article 7(1) does not ask when the debtor acted, but whether the risk of enforcement being impeded persists at the time of application (paras 54, 57). Conduct from three years before that has produced a continuing state of affairs, such as the permanent removal of the only enforceable asset in a jurisdiction, remains relevant precisely because its effects have not dissipated. Otherwise, debtors would be rewarded by moving their assets early, waiting out a limitation period before the creditor can act. The Court’s refusal to impose a time limit should be read as flexibility calibrated to the nature of the risk.

The ECJ further ruled that the mere reliance on Article 56A of the Maltese Gaming Act does not satisfy the requirements of Article 7(1) – all the more so for accounts held outside of Malta – though a national court may contextually consider it as it indicates the debtor’s intention to evade payment (paras 60, 61). The previous post treated this as debatable, questioning whether national legislation can bear on the real risk assessment given that it does not reflect the debtor’s own intention. That tension is real, but it points toward a difficulty the Court underexplored rather than resolved: treating Article 56A as simply circumstantial increases the creditor’s burden precisely where the enforcement environment is most dysfunctional.

All the factors listed in Recital 14 presuppose something observable but not irremediable. However, where the debtor is established in a jurisdiction whose law permanently eradicates the creditor’s enforcement prospects, that supposition breaks down. Article 56A may not guarantee that Mr Green will transfer its assets to Malta, but the real risk that it will is precisely what the EAPO is designed to address preventively – and were Mr Green to do so before displaying any observable evasive conduct, the damage would already be done. As AG Emiliou noted, Mr Green has every incentive to move its assets to Malta, and has already made clear its intention to rely on Article 56A (paras 63, 66 of the Opinion). This exemplifies the creditor’s paradox created by the judgment: Mr Green can rely on Maltese law to achieve the same result as intentionally evading payment, making it impossible to prove that enforcement difficulties stem from intentional conduct. The absence of observable evasive conduct thus does not mean that no risk exists, but that structural protection renders evasion unnecessary. At that point, the distinction between the debtor’s intention and its reliance on the available legal framework collapses. This is precisely why third-party conduct – here, a national law capable of rendering enforcement impossible at any moment – cannot be dismissed as contextual to the real risk assessment. Tying the risk exclusively to intentional conduct is a definition the present case exposes as insufficient.

Mutual trust and structural enforcement obstacles

The previous post identified the tension between the Regulation’s requirement that the risk stem from the debtor’s intentional conduct and the role that national legislation may play in that assessment, but framed it as a question of the Regulation’s interpretive scope. The difficulty, however, runs deeper: it is a problem of Member State compliance with EU law that the EAPO was not designed to resolve. Like all instruments built on mutual trust, the Regulation rests on the premise that Member States comply with EU law and that judgments are recognised and enforced across borders. The intentionality requirement reflects that premise: it targets the recalcitrant debtor, not the recalcitrant Member State. Where the enforcement environment is assumed to function, requiring conscious steps to evade payment is a reasonable safeguard against abusive applications. The present case exposes the limits of that premise.

While unaddressed by the Court and slightly hinted at by the AG (para 62 of the Opinion), Article 56A might not be compatible with EU law. As already noted, by instructing Maltese courts to refuse recognition and enforcement of foreign judgments against Malta-licensed gaming operators, the provision appears at odds with the mutual recognition framework of the Brussels Ibis Regulation, under which judgments from other Member States must in principle be recognised and enforced, subject only to the narrow exceptions of Articles 45–46. A blanket legislative instruction to withhold recognition from a defined class of foreign creditors would then sit uneasily with that obligation. The scale of this problem is substantial: thousands of such claims are pending or have been handled in Austria and Germany alone, with courts largely upholding them (para 2 of the Opinion). Moreover, as already reported, the Commission has opened infringement proceedings against Malta.

When a Member State openly legislates in defiance of EU law, the premise on which the intentionality requirement rests – that the enforcement environment functions normally – collapses. By treating Article 56A as incapable of significantly grounding the real risk required for an EAPO, the ECJ potentially left creditors to bear the cost of a Member State’s non-compliance. While the legitimacy of the Maltese law will be addressed through infringement proceedings, the Court’s failure to engage with that dimension leaves creditors without effective recourse in the meantime. The Regulation, calibrated for the paradigmatic case of a recalcitrant debtor, displays all the shortcomings of a system where it is the Member State’s legal architecture that does the hiding instead.

Conclusion

The judgment provides the first authoritative guidance on the conditions for issuing an EAPO under Article 7(1), confirming that the real risk requirement is tied to intentional debtor conduct. Where a Member State has legislated its way out of the EU’s cross-border enforcement framework, however, that requirement shows its shortcomings. Until the compatibility of Article 56A with EU law is resolved, the EAPO Regulation risks leaving thousands of creditors without effective recourse, exposing them precisely where enforcement risks are irreversible. As infringement proceedings progress, the present case demonstrates the structural limits of instruments built on the premise that Member States comply with EU law, when one has enacted legislation to the contrary.