Whether orders for penalty payment my constitute a ‘judgment’ is an issue under Brussels Ia (A55, see also below). It is also under the EU account preservation order Regulation 655/2014 (the ‘APO’ Regulation or simply ‘APO’) and it is on the latter that Szpunar AG opined last week in C‑291/21 Starkinvest (no English version is as yet available).
Per A7 APO, confirmed in CJEU C-555/18 H.K., when the applicant for an APO (the creditor) does not (yet) have a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim, creditor must submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor: that is the ‘fumus boni juris’ (literally ‘the smoke of a solid right’) requirement.
Under Belgian civil procedure rules, a creditor need not return to the court to have the final amount of a periodic penalty payment confirmed before being able to seize assets commensurate to the amount due: the judgment itself, which for that reason must clearly detail the parameters for the payment’s calculation, serves as enforceable title; the bailiff seizes following her /his own calculation, and the attachment judge confirms the final amount. The point of the exercise is to guarantee sufficient asset seizure, pending the final confirmation of the amount due.
In essence the question is whether this security also works in an international context. The discussion of course triggered discussion of A55 Brussels Ia and its relationship with APO: ‘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.’
The AG (and with him, the EC and the Member States that intervened) zooms in on the A7(2( APO condition: the debtor must have obtained ‘a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim‘ (emphasis added): not just ‘a judgment’ as defined in A4(8) APO: “‘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”. This focus is then followed by a discussion of the word ‘claim’, for which reference is made to the relevant forms prescribed by Commission Implementing Regulation 2016/1823 . This form refers to an amount ‘awarded’ and an ‘amount set out in’ the judgment.
The AG ends his Opinion with the suggestion that the judgment which imposed the penalty payment, together with confirmation eg by a bailiff that the debtor did not meet with the requirements to escape the payment, form a sound basis for the A7(2) APO route of fumus boni iuris.
It is clear that penalty payments could have done with more specific consideration in APO, and the spirit of the APO Regulation could in my view support a different conclusion. However the textual anchors for the AG’s Opinion would seem strong.