Green Ltd: A View from Luxembourg

This post was contributed by Carlos Santalo Goris, a postdoctoral researcher at the University of Luxembourg and the author of The Application of the European Account Preservation Order in Germany, Luxembourg and Spain. A Comparative-Empirical Analysis (Nomos, 2025). This is the third contribution to the online symposium on Mr Green Ltd.

The main prerequisite to obtain an EAPO for any creditor

Any creditor who applies for a European Account Preservation Order (‘EAPO’), regardless of whether an enforceable title exists, must prove 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’ (Article 7(1) of the EAPO Regulation). This prerequisite corresponds to the periculum in mora, a classic requirement for civil provisional measures under national law. The interpretation of the EAPO’s periculum in mora is the core question in the case C-198/24, Mr Green.

The case has its roots in a request for an EAPO before the Inner City of Vienna District Court (Bezirksgericht Innere Stadt Wien) made by an Austrian resident, TQ, against Mr Green, a Maltese-registered online gaming provider (for a more detailed overview of the facts of the case, I refer to the first post of this symposium). By the time of the EAPO application, TQ already had an enforceable title, a judgment rendered by an Austrian court. To justify the periculum in mora, the claimant argued that Mr Green had terminated its contract with an Austrian payment service provider. It was also argued that the judgment rendered in Austria against Mr Green could not be enforced in Malta because, since the 2023 Amendment to the Maltese Gaming Act, any action against Maltese-registered online gaming providers is considered contrary to public policy (see Prof. Franzina’s post on the opening of infringement proceedings against Malta for this reform). The Inner City of Vienna District Court rejected the request, and the creditor decided to appeal the decision before the Regional Court for Civil Matters of Vienna (Landesgericht für Zivilrechtssachen Wien). This court decided to ask the CJEU about the interpretation of the EAPO’s periculum in mora. The CJEU adopted an interpretation of this prerequisite that is very much in line with Recital 14 of the Preamble, a position with which this author disagrees.

CJEU’s analysis of the preliminary reference

The CJEU start its reasoning by clarifying that in the definition of Article 7(1)’s periculum in mora, the need of an ‘urgent need’ and of a ‘risk’ that the enforcement might be frustrated are not two separate prerequisites.

Subsequently, the Court proceeded to dissect the content of Recital 14. The CJEU extracts from the text of Recital 14 that the periculum in mora has to be the result of ‘an intentional action by the debtor’ (para. 45). The travaux préparatoires of the EAPO Regulation support this interpretation. In the Commission Proposal of the EAPO Regulation, any source of risk could serve to establish the periculum in mora. As the CJEU indicated, the EU legislator decided to adopt a more restrictive approach, focusing on the debtors’ actions as the source of the risk (para. 46). For the Court, this approach appears to ‘strike an appropriate balance between the interests of the creditor and those of the debtor’ (para. 47).

The Court also acknowledges that Recital 14 distinguishes between two types of circumstances that could justify the periculum in mora: those that can serve alone to establish the periculum in mora, and those that be taken into account when assessing the periculum in mora but are not ‘sufficient to justify the issuing of a Preservation Order’. In the concrete case of C-198/24, Mr Green, the termination of the contract with the Austrian service payment provider ‘may constitute evidence of a broader strategy by the debtor concerned consisting in avoiding payment of its debts in the Member State concerned or, at least, of making enforcement of those debts more difficult’ (para. 58). Interestingly, the Court also clarifies that EAPO Regulation does not require the EAPO to be requested the moment the risk appears, but the risk has to still exist at the moment of the request. In this regard, the Court slightly departs from the wording of Recital 14, which talks about the ‘recent actions’ adopted by debtors concerning their assets. Concerning the Maltese legislation preventing the enforcement of a foreign judgment, this does not itself serve to justify the periculum in mora, though it can be taken into consideration in its overall assessment (para. 61).  Therefore, overall, the CJEU aligned the interpretation of the EAPO’s periculum in mora with the content of Recital 14.

A correct but unfortunate interpretation

With C-198/24, Mr Green, the CJEU has certainly shed light on the periculum in mora. Now, it is clear that the criteria set out in Recital 14 of the Preamble must be followed when interpreting it. It should be recalled that the content of the Preamble is not binding. Furthermore, the CJEU has clarified that ‘urgent need’ and ‘risk’ are not two separate conditions, as some scholars and some courts have considered (e.g. Court d’Appel Versailles, 4e chambre., 13 juill. 2020, n° 18/05040). Last but not least, it has also clarified the temporary dimension of the source of the risk. It can occur years before the EAPO is requested, but the risk of frustration of the enforcement must persist at the time of the request.

The interpretation made by the CJEU of the EAPO’s periculum in mora is fine-tuned to the standards set in Recital 14. Though this might be the most foreseeable solution, it does not mean that it is the most desirable. For the Court, this solution establishes an adequate balance between the debtors’ and creditors’ interests. Nonetheless, while it certainly protects the debtor, it also creates for a creditor with an enforceable title a very difficult standard to meet in practice. Creditors who have already obtained an enforceable title and decide to apply for an EAPO do so because they are already experiencing difficulties in recovering the claim. It is not always possible for creditors to trace their debtors’ assets. Creditors often rely on the EAPO after a frustrated attempt to enforce their title domestically, only to discover that the debtor has no assets in the Member State where the enforceable title was obtained. That scenario should be sufficient to justify the need for an EAPO. For the standards of Recital 14, this would not be enough. While cases in which the CJEU departs from the content of the Preamble of an instrument are rare, they exist. C-198/24, Mr Green could have been among the few.

Had the CJEU adopted the more lenient interpretation I suggest, it would have led to two standards of interpretation of the periculum in mora: a stricter one for creditors with an enforceable title and a more lenient one for creditors without one. A solution that would better reflect the double intrinsic nature of the EAPO: as a provisional measure for creditors before or during the proceedings as to the substance of the matter; and a protective measure at the enforcement stage. This would have aligned with the EAPO Regulation as the Commission envisaged in its proposal, and, in my view, is more logical: exempting creditors with an enforceable title from satisfying the periculum in mora.

Instead, the CJEU opted to interpret the periculum in mora in line with Recital 14. For most domestic courts, this does not change much, since  Recital 14 is widely followed across the EU.  References to Recital 14 are frequent across the domestic case law on the EAPO (see the report on practices in comparative and cross-border perspective of the EU-funded project EFFORTS). Indeed, most of the existing case law on the EAPO Regulation concerns decisions either rejecting EAPO applications because creditors with an enforceable title were unable to satisfy the periculum in mora, or decisions on appeals against those rejections. The fact that there is abundant case law about EAPO rejections because the periculum in mora was not met is slightly symptomatic that the threshold proposed by Recital 14 is quite high. There are exceptions, though. In Spain, I found that practice shows that courts often disregard the periculum in mora for creditors with an enforceable title. The likely reasons are that courts might ignore the Preamble’s content, and that, under Spanish law, the periculum in mora is only a prerequisite for provisional measures requested before or during the proceedings as to the substance of the matter. Perhaps C-198/24, Mr Green might change this, aligning Spanish judges’ approach with that of their European peers.

My dissatisfaction with the CJEU’s judgment in C-198/24, Mr Green, is mitigated by the hope that, in the event of a recast of the EAPO Regulation, this aspect will be revisited. There is still a pending Commission’s report evaluating the performance of this instrument, which has been due since 2022. The report also has to consider introducing changes. Revisiting the periculum in mora for creditors with an enforceable title should be among them.