1.

The present request for a preliminary ruling, made by the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria), belongs to a series of cases ( 2 ) concerning online games of chance offered by companies established in Malta. Usually, the websites they operate are not only accessible from, but also directed (through the names of those websites, language used therein, advertising, and so on) to, other Member States (in this case, Austria). Those companies provide their services on the basis of gaming licences issued by the Maltese Gaming Authority, under Maltese law. However, they are not always licensed by the authorities of the target Member States to offer such games on their territory, as required under the rules on gambling of those States.

2.

A significant number of consumers in those target Member States participate in such online games of chance, and many of them lose considerable amounts of money. In recent years, players have sought to recover their losses by bringing civil proceedings before their local courts ( 3 ) against Maltese gambling companies. Typically, the claim is that (i) the consumer wagered and lost stakes in games of chance under a gambling contract concluded with one of those companies; (ii) since the company in question was not licensed by the authorities of the target Member State, the games of chance offered were illegal and, consequently, that contract was null and void under the local contract law; (iii) accordingly, that company is required to refund those stakes under the rules on unjust enrichment. Apparently, thousands of such claims have been handled or are currently pending in Austria and Germany. It also appears that, so far, in the majority of cases, the courts in those Member States have upheld the claims.

3.

Unsurprisingly, Maltese gambling companies dispute such claims for restitution. Apparently, they also refuse to comply with judgments issued against them by the consumers’ local courts, regarding those decisions as manifestly wrong. Those companies contend that, in so far as their services are provided pursuant to Maltese gaming licences – which frequently authorise the offering of games of chance both within Malta and from Malta – they are entitled to offer such services throughout the European Union in accordance with the freedom enshrined in Article 56 TFEU.

4.

According to those companies, when the target Member States enforce their gambling rules and license requirements against them, on grounds of player protection (such as preventing fraud, addiction and related concerns), those States unjustifiably and/or disproportionately restrict their freedom to provide services. The same companies argue that the Maltese gambling rules and the supervision exercised by the Maltese Gaming Authority provide adequate protection for players – an important consideration that the local courts fail to acknowledge.

5.

Maltese gambling companies have received support from the Maltese legislature in that regard. Taking the view that the target Member States hinder those companies’ freedom to provide services under Article 56 TFEU and that it has been the ‘longstanding public policy of Malta [to] encourage[e] the establishment of gaming operators in Malta who offer the local and cross-border supply of their services in a manner compliant with local legislation, in an effort to encourage private enterprise in line with Article 18 of the Constitution of Malta’, ( 4 ) on 12 June 2023 the legislature enacted Bill 55, which introduced a new Article 56A into the Maltese Gaming Act. ( 5 ) That article establishes, in essence, that any action questioning the legality of the services provided by Maltese companies pursuant to a Maltese gaming licence is to be deemed inadmissible by the Maltese courts. Furthermore, it stipulates that any foreign judgment upholding such an action shall neither be recognised nor enforced in Malta.

6.

Against that background, the present request concerns the specific issue of whether a player asserting such a claim for restitution against a Maltese gambling company may secure its future enforcement pursuant to a European Account Preservation Order (‘Preservation Order’ or ‘Order’) under Regulation (EU) No 655/2014. ( 6 ) This provisional measure targets funds allegedly held by the company in bank accounts across multiple Member States.

7.

In that respect, the referring court seeks clarification of one of the conditions for issuing a Preservation Order (laid down in Article 7 of the EAPO Regulation), namely the requirement for the claimant to show the ‘urgent need’ for such a measure (a condition commonly referred to as ‘periculum in mora’ that the Court has, so far, never explored). The referring court wonders about the kind of evidence that a creditor, requesting such a measure, must adduce in that respect. Among other issues, the referring court requests clarification as to whether the requisites for granting a Preservation Order must be confined exclusively to evidentiary elements demonstrating the debtor’s subjective intent to frustrate the enforcement of the claim – such as acts of dissipation, concealment, or disposal of assets – or whether objective factors, including interventions by national legislature as exemplified in the present case, may also be taken into account in that evaluation.

8.

The Preservation Order is a protective ‘freezing’ measure. More specifically, pursuant to Articles 2 and 5 of the EAPO Regulation, such a measure may be sought, in ‘cross-border cases’, by a person (designated as ‘the creditor’ in the EAPO Regulation) who asserts a ‘pecuniary claim’ in ‘civil and commercial matters’ against another person (designated therein as ‘the debtor’), either before initiating proceedings on the substance of the matter, during such proceedings, or after obtaining a judgment (or a court settlement or authentic instrument) requiring the debtor to pay. The Order may be issued by the court with jurisdiction over the substance or by the court that issued the judgment on the merits. ( 7 ) Upon issuance, the Order imposes a binding obligation on the relevant financial institution(s) to ‘preserve’ the funds held in one or more bank accounts situated within the territory of another Member State, thereby prohibiting the debtor – or any authorised agent thereof – from disposing of, transferring, or otherwise encumbering such assets, with the objective of securing their availability for the creditor’s enforcement of the underlying claim at a later stage. ( 8 ) To guarantee its swift implementation, a Preservation Order is automatically (and without exception) enforceable in the Member State where the targeted account(s) is (or are) maintained. ( 9 ) That EU law remedy is designed to improve the efficiency of the cross-border enforcement of judgments, thus fostering the functioning of the internal market and ensuring creditors an ‘effective access to justice’ in the European Union. ( 10 )

9.

The EAPO Regulation lays down uniform rules governing the various issues pertaining to the ‘birth’, ‘life’ and ‘death’ of such a Preservation Order. ( 11 ) In particular, Article 7 of that regulation provides for substantive conditions for the issuance of such an order. It stipulates, in paragraph 1 thereof, that ‘the court shall issue the Preservation Order when the creditor has submitted sufficient evidence to satisfy the court that 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.’

10.

Mr Green Limited (‘Mr Green’) offers online games of chance through the website www.mrgreen.com in (inter alia) Austria from its registered office in Malta. That company holds a gaming licence issued by the Maltese Gaming Authority under Maltese law. However, it does not have a licence under the Austrian Glücksspielgesetz (Law on games of chance).

11.

Between 3 January 2017 and 25 April 2019, TQ, a consumer habitually residing in Vienna (Austria), participated in games of chance on Mr Green’s website. During that period he wagered and ultimately lost a total of EUR 62878.

12.

Subsequently, TQ brought a claim for restitution against Mr Green before the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna). TQ argued that, since Mr Green did not hold a licence under the Law on games of chance, the underlying gambling contract was null and void, which entailed the duty, for that company, to refund the stakes he had lost.

13.

By judgment of 2 December 2021, the Austrian court upheld the claim and, accordingly, ordered Mr Green to refund EUR 62878 as well as pay interest and costs. By judgment of 21 February 2022, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) dismissed the appeal lodged by that company. Both judgments became final and enforceable on 13 April 2022.

14.

On 13 February 2024, TQ lodged an application for a Preservation Order before the Bezirksgericht Innere Stadt Wien (Inner City District Court, Vienna, Austria) in respect of the claim upheld in those judgments, targeting bank accounts allegedly held by Mr Green in Ireland, Luxembourg, Malta and Sweden.

15.

With respect to the ‘periculum in mora’ requirement set out in Article 7(1) of the EAPO Regulation, TQ argued, in essence, that (i) Mr Green sought to frustrate enforcement proceedings in Austria by transferring assets out of that jurisdiction, specifically by terminating – on an unspecified date prior to 16 February 2021 – the contractual relationship it maintained with Dimoco Europe GmbH, a payment service provider with which Mr Green had a credit balance and which, acting as a third-party debtor, had continued to satisfy claims against Mr Green until early February 2021; there was a ‘real risk’ (within the meaning of that provision) that Mr Green would take similar steps in other Member States and transfer all its assets to Malta. Should this happen, the recovery of TQ’s claim would be ‘impeded or made substantially more difficult’, within the meaning of that provision, since (ii) the recently introduced Article 56A of the Maltese Gaming Act made the enforcement of such claims against a Maltese gaming company virtually impossible in Malta.

16.

By order of 15 February 2024, the Bezirksgericht Innere Stadt Wien (Inner City District Court, Vienna) rejected TQ’s application on the ground that the ‘periculum in mora’ condition laid down in Article 7(1) of the EAPO Regulation was not met. Specifically, that court considered that there was no ‘urgent need’ for such a measure as TQ had delayed his application for a period of two years following the date on which the judgments he sought to preserve had become enforceable; in any event (i) actions taken by Mr Green in 2021 were not sufficient to demonstrate that there was a ‘real risk’ that, without such an order, the enforcement of TQ’s claim would be ‘impeded or made substantially more difficult’ in 2024; and (ii) while the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta) did refuse enforcement of Austrian judgments based on Article 56A of the Maltese Gaming Act, it was unclear whether higher courts in Malta had ruled, or would rule, in the same way.

17.

TQ brought an appeal against that order before the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna). Observing that the outcome of that appeal depended on the proper construction of Article 7(1) of the EAPO Regulation, that court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 7(1) of [the EAPO Regulation] to be interpreted as meaning that action taken by the debtor three years or more previously and/or obstacles to enforcement of the judgment in the Member State of the debtor are not to be taken into account?’

18.

Written observations have been submitted by TQ, Mr Green, the Belgian and Maltese Governments and the European Commission. The same interested parties were represented at the hearing that took place on 19 June 2025.

19.

An application for a Preservation Order such as the one that TQ brought before the Austrian courts is clearly admissible. Notably, the situation falls within the scope of the EAPO Regulation. Indeed, TQ seeks, with his application, to safeguard the enforcement of a ‘pecuniary [claim] in civil and commercial matters’ ( 12 ) in a ‘cross-border [case]’. ( 13 )

20.

The referring court doubts, by contrast, whether such an application may be regarded as founded in circumstances such as in the present case. As indicated in the introduction, this turns on whether the conditions for issuing a Preservation Order (laid down in Article 7 of the EAPO Regulation) are met. I will tackle, in Section B, the question of that court in that regard. Before proceeding, however, I shall address, in Section A, a preliminary issue debated before the Court regarding the optimal manner of reconciling the preliminary ruling procedure with the EAPO procedure.

21.

In order for ‘freezing’ measures to be effective, they must incorporate an element of surprise. Funds held in bank accounts constitute highly volatile assets. A recalcitrant debtor could, upon receiving prior notice that his or her account is subject to such a measure, promptly deplete the funds concerned through a simple electronic banking transaction before the measure can be enforced.

22.

To guarantee that element of surprise and, thus, prevent the risk described above from materialising, the EU legislature considered it essential that applications for a Preservation Order be adjudicated (and, as the case may be, issued) by national courts in ex parte proceedings, on the sole basis of the information and evidence provided by the creditor. With respect to this first stage of the EAPO procedure (‘the issuing stage’), Article 11 of the EAPO Regulation provides that ‘the debtor shall not be notified of the application … or be heard prior to the issuing of the Order’. In fact, pursuant to Article 24, Article 25 and Article 28(1) of the regulation, the debtor is to be notified only after the Order has been implemented by the bank concerned. The debtor then has the right, under Article 33 of that regulation, to apply for revocation of the Order before the issuing court, and will be heard at this second stage of the EAPO Procedure (‘the revision stage’).

23.

Nonetheless, challenges arise within this otherwise well-conceived framework when national courts – such as the Landesgericht für Zivilrechtssachen Wien (Regional Court of Civil Matters, Vienna) – are seised with applications for a Preservation Order but remain uncertain as to the interpretation of the requirements set forth in the EAPO Regulation, including the conditions stipulated in Article 7 thereof, and wish to obtain clarifications on the matter from the Court of Justice through the preliminary ruling procedure laid down in Article 267 TFEU.

24.

It seems only logical that national courts should wish, like the referring court here, to obtain such clarifications at the issuing stage, before taking a decision on the granting of the Preservation Order (especially since they have the duty, under Article 17(1) of the EAPO Regulation, to examine whether those requirements are met at that juncture). Besides, those courts are perfectly entitled to request a preliminary ruling at such a stage. ( 14 ) The problem, however, is that initiating a preliminary ruling at this stage may undermine the necessary confidentiality of the pending application for a Preservation Order, as an unintended consequence of the procedural rules governing the preliminary ruling process before this Court.

25.

More specifically, I recall that, pursuant to the first paragraph of Article 23 of the Statute of the Court of Justice of the European Union, when a request for a preliminary ruling is submitted by a national court, the ‘parties to the main proceedings’ are notified of the order for reference by the Registry of the Court. Furthermore, under the second paragraph of Article 23 of the Statute and Article 96(1)(a) of the Rules of Procedure of the Court of Justice, those same ‘parties’ are entitled to submit observations to the Court. With regard to national proceedings concerning the Preservation Order under the EAPO Regulation, the term ‘parties to the main proceedings’ clearly encompasses the debtor.

26.

On that last point, I am aware that, with respect to proceedings at national level, the identity of the ‘parties to the main proceedings’ is usually determined in the light of the applicable, national rules of procedure and, logically (since it is an issue of national law), by the referring court (as Article 97(1) of the Rules of Procedure provides). ( 15 ) Nevertheless, proceedings concerning the Preservation Order are characterised by the peculiarity of being governed primarily by the uniform procedural rules established under EU law in the EAPO Regulation. Consequently, the identification of those ‘parties’ must be determined in accordance with the latter rules. Given that those rules form part of EU law, it is incumbent upon the Court to provide a uniform interpretation to ensure consistency across Member States. ( 16 )

27.

It follows from a systematic reading of the rules in question that the debtor is, quite simply, the defendant in such proceedings, for he or she is, according to the definition laid down in Article 4(7) of the EAPO Regulation, the person ‘against whom or which’ the creditor seeks to obtain a Preservation Order. The fact that the debtor is not to be informed of (or heard during) the issuance stage or that he or she will only be allowed to defend him or herself at the revision stage does not alter that. Indeed, those two stages must be regarded as integral parts of a single procedural framework, that is to say, the EAPO procedure, which fundamentally involves an adversarial relationship between creditor and debtor concerning the issuance of a protective measure. ( 17 )

28.

In sum, when a request for a preliminary ruling is submitted by a national court at the issuing stage, the debtor must normally be informed by the Court of Justice of that request and allowed to participate to the preliminary ruling procedure. That necessarily entails the untimely discovery, by the debtor, of the application for a Preservation Order targeting his or her account(s) pending before the national court. In fact, that is what happened with respect to Mr Green in the present case.

29.

This, in my view, constitutes an unfortunate state of affairs, as it reintroduces the very risk that the legislature has sought to mitigate with Article 11 of the EAPO Regulation – namely, the risk of the debtor concealing or dissipating the targeted assets prior to the enforcement of the Order. The creditor who lodged the application could suffer irreparable harm as a result, contrary to his or her right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union. The effectiveness of the system established under Article 267 TFEU is also impaired. ( 18 ) Indeed, the preliminary ruling issued by the Court may ultimately prove of limited utility to the national court in the case concerned, particularly if the issuance of a Preservation Order is deemed to be legitimate in the light of that ruling, but the debtor has, in the interim, concealed or dissipated his or her assets, thereby rendering the application ineffective.

30.

Such a state of affairs ought not to recur in future cases. A pragmatic solution must be found that (i) safeguards the right of national courts to submit requests for a preliminary ruling on the requirements laid down in the EAPO Regulation (something which is also essential to ensure the uniform application of that instrument throughout the European Union) and, at the same time, (ii) preserves the effectiveness of the EAPO Regulation and the creditor’s interests.

31.

One possible solution could involve the Court (re)interpreting Article 23 of the Statute and Article 96(1)(a) of the Rules of Procedure to the effect that, when a national court submits a request for a preliminary ruling concerning the EAPO Regulation during the issuance stage, the debtor – although formally a ‘party to the main proceedings’ – should neither be notified of that request nor, a fortiori, be entitled to submit observations to the Court. This approach possesses a ‘symmetrical’ logic to it, which is appealing at first sight: ‘parties’ (such as the debtor) could participate in the preliminary ruling procedure if, and to the extent that, they may do so in the main proceedings. Nevertheless, I do not think that such a solution is either feasible or appropriate.

32.

Plainly, it goes against the wording of Article 23 of the Statute and Article 96(1)(a) of the Rules of Procedure, which gives all of the ‘parties’ to national proceedings a right to be notified of a request for a preliminary ruling made in the course of those proceedings as well as to submit observations to the Court. No derogation is provided for those that are not informed of the main proceedings and/or have no right to appear before the referring court. ( 19 )

33.

Furthermore, I recall that the drafters of Article 23 of the Statute and Article 96(1)(a) of the Rules of Procedure allowed the ‘parties to the main proceedings’ to participate in the preliminary ruling procedure to safeguard their right to be heard, as part of their fundamental right to a fair trial (protected under Article 47 of the Charter). Indeed, the interpretation of EU law provided by the Court in reply to a request for a preliminary ruling usually has an important, if not decisive, impact on the outcome of the national proceedings. An exception for ‘parties’ in the position of the debtor during the issuing stage would be questionable in the light of that objective.

34.

Specifically, in the context of proceedings at national level concerning the Preservation Order, the debtor’s right to be heard is only delayed (until after implementation of the Order). The debtor will eventually have (at the revision stage) the opportunity to convince the national court that the requirements for issuing the Order were not in fact met.

35.

By contrast, if a national court makes a request for a preliminary ruling during the issuing stage and the debtor is neither notified of that request nor allowed to submit observations to the Court, then the latter will give a binding interpretation of the EAPO Regulation which will very likely determine the legality of the requested Preservation Order once and for all, without the debtor having any opportunity to present his or her views on the matter. That interpretation will bind the national court for the remainder of the EAPO procedure. If that interpretation is detrimental to the debtor’s interests, he or she will not have a genuine opportunity to argue for a different interpretation before the national court or the Court of Justice at the revision stage (save for the unlikely scenario where he or she convinces the national judge to make, at that stage, a new reference on the same point(s) of EU law). In that respect, the debtor’s right to be heard will be denied.

36.

In my view, a preferable approach for national courts would be to refrain from submitting requests for a preliminary ruling at the issuance stage, and instead to do so, if necessary, only subsequent to the potential implementation of the Preservation Order. ( 20 )

37.

At the issuing stage, a national court is not required to possess absolute certainty that the conditions set forth in the EAPO Regulation for granting a Preservation Order are fully satisfied. With regard to the condition laid down in Article 7(1) thereof, for instance, as will be elaborated in the following section, the national court should grant the Order where the creditor has submitted sufficient evidence demonstrating a real risk to the enforcement of their claim. Full proof is not required at that juncture, and some degree of uncertainty may persist. The same principle applies to the interpretation of that condition: where, in the light of the Court’s case-law on Article 7(1), the interpretation put forward by the creditor appears well founded, and the condition is, on balance, met, any residual doubts held by the national court as to its precise meaning should be reserved for later consideration, and the Preservation Order should be issued. ( 21 )

38.

Indeed, the decision taken by the national court at the issuing stage is, effectively, ‘provisional’ only. In fact, the legality of the Preservation Order issued will be re-examined by the same national court at the revision stage. At that stage, an in-depth, inter partes debate about those requirements will take place. If that debate confirms the doubts that the national court harboured, it will have the opportunity to submit a request for a preliminary ruling on the matter in order to obtain the definitive interpretation of those requirements. Only thereafter will the national court adopt a final, comprehensive decision on the legality of the Preservation Order, where appropriate, in the light of the interpretation provided by the Court.

39.

A counterargument could be that the revision stage of the Preservation Order is not automatic, but only takes place if the debtor seeks revocation of that measure under Article 33 of the EAPO Regulation. A national court – particularly one falling within the scope of the third paragraph of Article 267 TFEU, and thus under an obligation to refer questions of EU law – may legitimately be concerned that, by refraining from submitting a request for a preliminary ruling at the issuing stage, it risks being deprived of a subsequent opportunity to do so, should the debtor fail to contest the Preservation Order.

40.

Nevertheless, it should be noted, first, that the likelihood of a debtor failing to seek revocation of the Order is relatively low. The freezing of one’s bank account is not, as a rule, a measure that debtors tend to ignore. Besides, when a Preservation Order is issued, the decision communicated to the debtor expressly draws his or her attention to the fact that he or she can apply for revocation. Moreover, that instrument makes it particularly easy for the debtor to do so. Revocation may be sought at any time, using a simple, standard form. ( 22 )

41.

Secondly, in the unlikely event that a national court harbours genuine concerns regarding the debtor’s potential passivity, a careful and creative application of the provisions of the EAPO Regulation may offer an effective procedural remedy. Notably, Article 35(2) of that regulation permits the issuing court, where allowed by its national procedural law, to revoke the Preservation Order ex officio on the basis of ‘changed circumstances’. This concept is neither defined nor limited in the EAPO Regulation and, in my view, is sufficiently broad to encompass situations in which the Court of Justice, subsequent to the issuance of the Order, delivers an interpretation of that regulation that has a bearing on the legality of the measure adopted. Accordingly, the national court could (i) issue a Preservation Order then (ii) make a request for a preliminary ruling, for the purposes of reviewing the legality of the Order of its own motion under Article 35(2) and (iii) revoke or confirm that measure in the light of the answer of the Court.

42.

Admittedly, the solution I propose may result in the debtor having to endure a prolonged period – corresponding to the duration of the preliminary ruling procedure – during which his or her account remains frozen pursuant to a Preservation Order that may be based on an interpretation of EU law ultimately found to be incorrect. Nevertheless, the Court could take the precarious position of the debtor into account and give priority to requests for a preliminary ruling concerning the EAPO Regulation. Moreover, in the exceptional case where a Preservation Order would seriously endanger the debtor’s ability to meet basic subsistence needs, the Court could use the urgent preliminary ruling procedure (PPU) or, at least, the expedited preliminary ruling procedure (PPA) which, through various means, reduce to just a few weeks the duration of the procedure before the Court.

43.

Article 7 of the EAPO Regulation contains substantive conditions for issuing a Preservation Order. Those vary depending on whether the creditor had obtained, by the time of lodging his or her application, an enforceable title requiring the debtor to pay the underlying claim.

44.

Where, like in the case of TQ, the creditor had already obtained such a title, only Article 7(1) applies. Under that provision, the court seised ‘shall issue’ the Preservation Order if ‘the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for [such] a protective measure … 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’.

45.

By its question, the referring court is asking whether ‘action taken by the debtor three years or more previously’ and ‘obstacles to enforcement of the judgment in the Member State of the debtor’ may be taken into account in that context. That somewhat specific inquiry reflects the circumstances cited by TQ in support of his application for a Preservation Order, as summarised in point 15 above, namely: (i) the termination, by Mr Green in 2021, of a contract with an Austrian payment service provider (Dimoco Europe) and (ii) the adoption, by the Maltese legislature, of Article 56A of the Maltese Gaming Act.

46.

Rather than providing an answer tailored to such a specific set of facts, it is my view that the Court should approach the present question in a more general manner, particularly given that it has not previously interpreted Article 7(1) of the EAPO Regulation. Accordingly, as outlined in the following sections, I believe the Court should offer general clarifications regarding (1) the meaning of the condition set forth in that provision and (2) the types of evidence a creditor may present to demonstrate that the condition is met. In that context, the potential relevance of the circumstances referenced by the referring court in its question should also be addressed. Providing such a response will not only assist the referring court but will also reduce the likelihood in future cases of other courts submitting requests for a preliminary ruling referring to Article 7(1).

47.

I will start with the obvious. Since Article 7(1) of the EAPO Regulation does not refer to the national laws of the Member States, that provision must be given an autonomous interpretation, ensuring its uniform application throughout the European Union.

48.

Having clarified that, it appears to me, in the light of the explanation provided in the order for reference and the debate before the Court, that two interrelated issues – crucial to the effective operation of the system established by the EAPO Regulation – must be addressed concerning the interpretation of Article 7(1) of that instrument.

49.

First, contrary to the assumption of the referring court and the submissions of Mr Green and the Maltese Government, Article 7(1) does not impose two separate requirements – namely, an ‘urgent need’ for a Preservation Order and a ‘real risk’ that, absent such a measure, the subsequent enforcement of the creditor’s claim will be impeded or rendered substantially more difficult. Rather, it follows unambiguously from the wording of that provision that those concepts constitute two inseparable aspects of a single condition: the creditor must demonstrate that there is an ‘urgent need’ for the measure ‘because’ (that is to say, as a consequence) of a ‘real risk’ to the subsequent enforcement of their claim. Essentially, this reflects the ‘periculum in mora’ (‘danger in delay’ or ‘urgency’) requirement common to many remedies. ( 23 )

50.

Secondly, as the referring court correctly assumes this time, and as the interested parties which submitted observations before the Court have likewise maintained (except for the Belgian Government), the ‘real risk’ referred to in Article 7(1) of the EAPO Regulation must be understood as relating, in essence, to the risk that the debtor may take measures – such as the dissipation, concealment or destruction of assets or their disposal at an undervalue – to evade payment of the debt.

51.

Admittedly, the wording of Article 7(1) of the EAPO Regulation is ambiguous on the matter. As stated above, it refers only to a ‘real risk’ that the subsequent enforcement of the creditor’s claim may ‘be impeded or made substantially more difficult’. Seen in isolation, such vague terms could cover not only the risk of a (recalcitrant) debtor taking measures to evade payment, but also (as the Belgium Government argues) any other ‘real’ threats for the recovery of the claim, such as the risk of a (benevolent) debtor becoming insolvent before enforcement due to poor or deteriorating financial circumstances in the normal course of business or to the fact that the debtor has multiple creditors to satisfy.

52.

Nevertheless, recital 14 of the EAPO Regulation clarifies that the narrower interpretation set out in point 50 above reflects the legislature’s intention. Specifically, the third paragraph of that recital stipulates that a Preservation Order is warranted only where, failing such a measure, the subsequent enforcement or recovery of the creditor’s claim may be impeded or rendered significantly more difficult ‘because there is a real risk that, by the time the creditor is able to have the existing or a future judgment enforced, the debtor may have dissipated, concealed or destroyed his assets or have disposed of them under value, to an unusual extent or through unusual action’. The fourth paragraph reinforces that approach by making clear that ‘the mere fact that the debtor has more than one creditor’ or ‘the mere fact that the financial circumstances of the debtor are poor or deteriorating’ do not, in themselves, constitute sufficient grounds for the issuing of a Preservation Order.

53.

The travaux préparatoires of the EAPO Regulation confirm the legislature’s intent in that regard. Initially, the then Article 7(1)(b) of the Commission’s proposal for the EAPO Regulation formulated the ‘periculum in mora’ condition in broad terms, providing that ‘the subsequent enforcement … is likely to be impeded or made substantially more difficult, including because there is the real risk that the defendant might remove, dispose of or conceal assets held in the bank account or accounts to be preserved’. During the negotiations at the Council, some delegations expressed support for maintaining this broad approach; the majority of delegations, however, considered that, in view of the potentially ‘draconian’ effects of a Preservation Order on a debtor – in that it severely restricts the debtor’s fundamental right to property and may even paralyse his or her economic activity – an ‘appropriate balance’ had to be struck between the interests of the creditor and those of the debtor. Accordingly, it was agreed that such a measure should be granted only where a ‘real risk’ exists that the debtor may attempt to evade payment. ( 24 ) The ‘periculum in mora’ condition was to be framed accordingly. Following several redrafts of Article 7(1) of the EAPO Regulation, it was ultimately decided that (i) the provision itself would remain concise, referring solely to the existence of a ‘real risk’ to enforcement, while (ii) ‘specific explanatory clarifications’ concerning the nature of that risk would be included in a recital – which ultimately became recital 14. ( 25 )

54.

In the light of the foregoing considerations, it must be concluded that Article 7(1) of the EAPO Regulation lays down a single condition, which corresponds to the traditional notion of periculum in mora. Read in the light of recital 14 thereof, that provision must be understood as meaning that the condition in question is met where the creditor has adduced sufficient evidence to satisfy the court seised that there is an urgent need for a Preservation Order, inasmuch as there exists a real risk that, if that measure is not issued, the debtor may have dissipated, concealed or destroyed his or her assets or disposed of them at an undervalue by the time the creditor is able to enforce an existing or future judgment, thereby impeding or, at least, making substantially more difficult the recovery of the creditor’s claim.

55.

As emphasised in Article 7(1) of the EAPO Regulation, the creditor bears the burden of adducing ‘sufficient evidence’ to demonstrate that there exists, in the case at hand, a ‘real risk’ that, if the requested Preservation Order is not issued, the debtor may have dissipated, concealed or destroyed his or her assets or have disposed of them at an undervalue by the time he or she is able to enforce an existing or future judgment.

56.

The evidentiary burden incumbent upon the creditor should, however, respect the ‘appropriate balance’ referred to in point 53 above. On the one hand, contrary to the submission of the Maltese Government, the creditor cannot be required to furnish full proof that the debtor intends to evade payment or that he or she is currently attempting to do so. Such a requirement would, in practice, often be impossible to meet and significantly undermine the usefulness of the EAPO Regulation. On the other hand, to avoid a Preservation Order being granted against a debtor who has no intention of evading payment, the creditor’s application cannot rest on mere conjecture or general assertions either. In my view, the ‘balanced’ approach is to require the creditor to adduce concrete indications giving rise to a reasonable probability that, if the Order is not issued, the debtor may have dissipated, concealed or destroyed his or her assets or disposed of them at an undervalue by the time enforcement measures may be taken.

57.

The fourth paragraph of recital 14 of the EAPO Regulation sets out a list of circumstances which may constitute such indications. Logically, that list refers, in particular, to acts of the debtor concerning his or her assets which appear ‘unusual’, that is say, devoid of economic or commercial justification – for example, ‘withdrawals from accounts and instances of expenditure’ by the debtor which do not seem necessary ‘to sustain the normal course of his [or her] business or recurrent family expenses’. Such conduct may give rise to a reasonable suspicion that the debtor is, in fact, taking steps to conceal or deplete his or her assets. That list will be examined in detail below. For now, it is sufficient to note that, as the expression ‘for instance’ used in that paragraph indicates, the list in question is not exhaustive, but merely illustrative. As the Commission rightly observes, any element which, either taken individually or in conjunction with others, is capable of indicating a ‘real risk’ that the debtor may attempt to evade payment may constitute relevant evidence. As the same paragraph of that recital further makes clear, nationals courts are required to make, on a case-by-case basis, an ‘overall assessment’ of all the circumstances relied upon by creditors in that respect.

58.

In the case in the main proceedings, is not for the Court, but for the referring court, to undertake such an ‘overall assessment’, on the basis of the evidence adduced by TQ in support of his application. Nevertheless, since the present case is the first one concerning Article 7(1) of the EAPO Regulation, it is appropriate to provide the referring court with all the elements of interpretation of EU law that might assist in that assessment.

59.

I will begin with the most striking circumstance relied upon by TQ, namely the adoption by the Maltese legislature of Article 56A of the Maltese Gaming Act – what the referring court calls in its question ‘obstacles to enforcement of the judgment in the Member State of the debtor’. Contrary to the submissions of Mr Green and the Maltese Government, that element is, in my view, plainly relevant in the ‘overall assessment’ to be undertaken by the national court.

60.

As a general rule, the mere fact that the debtor holds assets in a Member State other than that of the court that issued the creditor’s title, or that the debtor transferred – or is in the process of transferring – his or her assets from one Member State to another, does not itself suffice to establish the existence of a ‘real risk’ for the recovery of the creditor’s claim. Indeed, irrespective of the debtor’s intentions in that regard, he or she cannot usually evade payment of his or her debts that way. Indeed, the creditor may, as a rule, enforce that title in that other Member State, almost as readily as it could have in the Member State of origin, by virtue of the mechanisms provided for in the Brussels I bis Regulation. ( 26 ) Under the rules laid down in that regulation, and in accordance with the principle of mutual trust on which they are founded, a judgment or authentic instrument issued in a Member State is, as a rule, automatically enforceable in all the other Member States.

61.

However, as the Belgian Government and the Commission submit, things are different where a Member State adopts a piece of legislation (here, Article 56A of the Maltese Gaming Act) which mandates its courts to deny the enforceability, on its territory, of foreign judgments such as the one upholding the creditor’s claim.

62.

Whether Article 56A of the Maltese Gaming Act is compatible with the Brussels I bis Regulation – a question which has given rise to considerable debate before the Court – is beside the point for the purposes of the present analysis. ( 27 ) What is relevant is that, at present, the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court) appears to abide by that provision. Appeals against that court’s judgments are reported to be pending before the Qorti tal-Appell (Court of Appeal, Malta), which may, in due course, adopt a different view. Nevertheless, the fact remains that, by virtue of that law, there exists a reasonable probability at least that the enforcement of TQ’s claim would prove to be impossible in Malta.

63.

Since no enforcement measures may be taken against the debtor on the territory of the Member State concerned, the assets he or she holds therein (which, with respect to gambling companies established and operating from that Member State, probably means most of them) are effectively ‘concealed’ from the creditor. Furthermore, while, as the Maltese Government argues, a piece of legislation such as Article 56A of the Maltese Gaming Act does not affect the possibility for the creditor to have his or her judgment enforced in other Member States, it also creates, as TQ submits, an incentive for the debtor to transfer the potential assets he or she may hold in those other Member States to the Member State concerned, thus ‘concealing’ his or her patrimoine entirely from the creditor.

64.

Contrary to the submission of Mr Green and the Maltese Government, taking into account such an element does not call into question the ‘appropriate balance’ between the interests of the creditor and those of the debtor that the legislature sought to achieve. While, as stated before, the EAPO Regulation is intended to protect the creditor against not just any risk to the recovery of his or her claim, but the risk that the debtor evades payment, it does not follow that only past or current actions of the debtor may be taken into account in the assessment of that risk. While the elements indicated in the fourth paragraph of recital 14 of the EAPO Regulation are predicated, for the most part, ( 28 ) logically on the debtor’s behaviour, it is merely illustrative, as noted above. In order for the Preservation Order to fulfil its purpose, the risk that the debtor may evade payment must be assessed in a realistic manner. Accordingly, any indicators tending to show such a risk should be taken into account. ( 29 )

65.

That being so, as the Commission observes, such a circumstance cannot, by itself, suffice to demonstrate that the ‘periculum in mora’ condition laid down in Article 7(1) of the EAPO Regulation is satisfied. Indeed, here, it cannot reasonably be assumed, in an abstract manner, that each and every Maltese gambling company will take advantage of the opportunity afforded by Article 56A of the Maltese Gaming Act and ‘conceal’ all its assets in Malta to evade payment of players’ claims for restitution – such as the one held by TQ. In my view, this depends on an ‘overall assessment’, on a case-by-case basis, of other elements indicating a reasonable probability that, if the Preservation Order is not issued, the company concerned may do so (which would, in turn, justify ‘freezing’ the potential funds that that company holds in other Member States to counter that risk). This consideration brings me to the other circumstances of the case in the main proceedings.

66.

First, as suggested in the fourth paragraph of recital 14 of the EAPO Regulation, ‘the debtor’s conduct in respect of the creditor’s claim’ is relevant in that regard. Here, Mr Green expressly refuses to comply with the final judgments issued by the Austrian courts in TQ’s favour and there is every reason to believe – not least because Mr Green has stated so before the Court – that that company will rely on Article 56A of the Maltese Gaming Act to oppose enforcement of those judgments in Malta. As the Belgian Government rightly points out, such elements may, in the context of the ‘overall assessment’, contribute to demonstrating the existence of the requisite ‘real risk’.

67.

Secondly, as indicated by the fourth paragraph of that recital, ‘the nature of the debtor’s assets’ and ‘any recent action taken by the debtor with regard to his [or her] assets’ are also relevant. Companies who, for instance, hold immovable property in several Member States would not necessarily be able to easily dispose of it and, thus, fully ‘conceal’ their assets in their Member State of establishment. By contrast, that is more likely to happen where the creditor’s claim concerns a company operating online, from the Member State in question, with limited or no assets elsewhere. In that context, steps taken by that company with regard to those potential assets, such as the transfer of funds from bank accounts that the company may hold in other Member States, or the closure of such bank accounts, may be indicators of such a risk of ‘concealment’, to the extent that those steps appear to be ‘unusual’, that is to say, devoid of economic or commercial justification.

68.

Likewise, here, the termination, by Mr Green, of the business relationship it had with a payment service provider (Dimoco Europe) in Austria, resulting in the transfer of the credit balance that that company had with that service provider, is also relevant. Particularly with respect to companies operating online, with limited or no physical assets in the targeted Member States, credit balance with such a payment operator may be one of the few assets they hold outside their Member State of establishment. To the extent that it appears ‘unusual’, as the Commission submits, such a termination may indicate a broader strategy of the debtor to ‘conceal’ all of its assets in Malta. Nevertheless, there needs to be a temporal link between the two. That is why recital 14 of the EAPO Regulation refers to any ‘recent action’ of the debtor concerning his or her assets. An action that is too remote in time may no longer indicate that the risk persists at the moment when the application for a Preservation Order is assessed. Nevertheless, this must be determined in the light of the other circumstances taken into account in the ‘overall assessment’. That will be for the referring court to verify here.

69.

Before concluding, I wish to address one last point, which has generated a lot of debate before the Court, namely that of the timing of TQ’s application for a Preservation Order. His claim arguably originated in 2019 (when he participated in the games of chance offered by Mr Green); Mr Green terminated the contract with Dimoco Europe in February 2021; the judgments of the Austrian courts upholding TQ’s claim became final and enforceable on 13 April 2022; and Article 56A of the Maltese Gaming Act was adopted on 12 June 2023. Yet TQ lodged the application on 13 February 2024. Mr Green and the Maltese Government submit that this delay, in itself, justifies not granting the requested Preservation Order. ( 30 )

70.

Nevertheless, nothing in the EAPO Regulation imposes on a creditor an obligation to lodge his application at the very moment that a ‘real risk’ to the enforcement of his or her claim arises. The only relevant consideration is whether that ‘risk’ persists at the moment the creditor does so. Whether he or she could have lodged his or her application sooner is not, per se, material. Admittedly, as hinted above, the fact that certain elements date back several years may, depending on the circumstances, indicate that the relevant risk no longer exists – either because nothing suggests that the debtor will continue to take measures to evade enforcement, or because the debtor has already taken such measures and it is now too late for a Preservation Order to be effective. Nevertheless, this would be for the referring court to determine in the present case.

71.

In the light of all the foregoing considerations, I propose that the Court of Justice should answer the question referred by the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria) as follows:

Article 7(1) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters

must be interpreted as meaning that the condition laid down in that provision is satisfied where the creditor has adduced sufficient evidence to satisfy the court seised that there is an urgent need for a Preservation Order, inasmuch as there exists a real risk that, if that measure is not issued, the debtor may have dissipated, concealed or destroyed his or her assets or disposed of them at an undervalue by the time the creditor is able to enforce an existing or future judgment, thereby impeding or, at least, making substantially more difficult the recovery of the creditor’s claim.