Is it possible to collect account information with a view to a bank repossession?

Recently, the law offers creditors the possibility to collect information about the banks where their debtors have an account (Article 1447/1 of the Judicial Code, introduced by the Law of 18 June 2018). This is particularly useful for those who want to carry out a seizure on bank accounts. However, for privacy reasons, the conditions are relatively strict.

Creditors who want to take advantage of this opportunity will have to exercise some patience. The entry into force of this new legal provision has been postponed. For the time being, the deadline was set at June 30, 2020.

Master Cedric Haspeslagh recently wrote a contribution in the Rechtskundig Weekblad (RW 2019-20, ep. 12, 442) on the Kafkaian foregoing around the date of entry into force. Below is the text of that contribution.

For questions about this, please contact Van Steenbrugge Advocaten (info@vsadvocaten.be). We have a corporate law department with experience in attachment and recovery law.

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The European Bank garnishment or EAPO Regulation (EU No. 655/2014) contains an important innovation that allows creditors to verify in a cross-border context which bank accounts a debtor owns. For privacy reasons, the conditions are relatively strict, especially if one does not yet have an enforceable title (Article 14 EAPO Regulation; E. DIRIX, “European bank repossession is coming”, RW 2015-16, ep. 21, 802; K. BROECKX, “The European Bank Repossession Regulation” in P. TAELMAN and B. ALLEMEERSCH (eds.), The civil process reformed again, Antwerp, Intersentia, 2019, 192-198, no. 38-48).
This information option was also introduced for purely Belgian attachment procedures
(Artt. 1447/1 – 1447/2 Ger.W.) Creditors who want to use this option, however, will have to search for the exact entry into force of these articles of law. This search goes through various sources of law and testifies to a less transparent legislative technique, which was acknowledged to a certain extent by the Minister of Justice (Report of the Second Lecture, Parl.St. Kamer 2018-2019, no. 54-3303/11, 32-33).
Initially, the entry into force was planned on January 1, 2019. This was postponed to at the last minute “the date of commissioning of the CAP2” (art. 201 of the law of June 18, 2018, BS 2 July 2018, as amended by art. 192 of the law of December 21, 2018, BS 31 December 2018).
An amendment clarifies what this means. Within the National Bank of Belgium (hereinafter: “NBB”) consists of a central contact point for accounts and financial contracts (hereinafter: “CAP1”). The intended account information can be requested via this system, which can be supplemented if necessary by a direct query of the bank(s) concerned. This information can only be requested by the Management Committee of the National Chamber of Bailiffs, at the request of the attachment judge (art. 555/1, §1, 25° and §2 Judiciary).
However, the CAP1 is not automated and somewhat cumbersome. The data is only updated once a year and requests for information are made in writing. The NBB is currently working on an automated and permanently updated version that will contain real-time information (CAP2). This will make it possible to provide account information quickly. Pending the new system, and in order to avoid being overwhelmed by the CAP1 and the Belgian banks, its entry into force was linked to the commissioning of the CAP2 (Amendment No 64 (S. BECQ), Parl.St. Kamer 2018-2019). , no. 54-3303/2).
The question remains when the CAP2 will go into production. The aforementioned sources do not clarify this. Neither does the NBB's website. The answer can be found in the report to the King in a Royal Decree of 23 June 2019 (in implementation of Article 322, § 3, first paragraph of the ITC 1992, Belgian Official Gazette 5 July 2019). This shows that the NBB has provisionally selected 30 June 2020 as the date on which the CAP2 will go into production. However, the report warns that it is difficult to determine the exact date. After all, there may be disorders that can delay the start of production, such as “the unexpected unavailability of certain key persons indispensable to the development, conception or programming errors that only come to light during the ultimate testing phase, etc.” For reasons of legal certainty, the Council of State did not consider it a good thing to have a law enter into force on the basis of factual elements of which the persons concerned will not necessarily be aware. In order to meet this requirement, the NBB has undertaken to inform the various centralizing organizations or, failing that, the concerned information rights holders in good time of the precise date on which the CAP2 will go into production.
Barring setbacks, the possibility of obtaining account information may therefore be expected in the relatively short term. The experiences with the long wait for the entry into force of the Central File of Seizure Messages and the Pledge Register do indeed prompt a controlled enthusiasm. For the time being, creditors remain dependent on existing sources of capital (see, for example, E. DIRIX, Seizure in APR, Mechelen, Kluwer, 2018, 105, no. 126).

C. HASPESLAGH, “Can one already submit a request for account information for a bank attachment (art. 1447/1 Judicial Code)? Please be patient, at least until June 30, 2020”, RW 2019-20, ep. 12, 442

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