Explanatory Memorandum to COM(2002)159 - European enforcement order for uncontested claims - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)159 - European enforcement order for uncontested claims. |
|---|---|
| source | COM(2002)159  |
| date | 18-04-2002 |
The entry into force of the Treaty of Amsterdam entailed the transfer of judicial cooperation in civil matters from the third pillar (Article K.1 i TEU) to the first pillar. According to Articles 61(c) and 65 of the Treaty establishing the European Community, the Community adopts measures in the field of judicial cooperation in civil matters having cross-border implications and insofar as necessary for the proper functioning of the internal market. These measures include improving and simplifying the recognition and enforcement of decisions in civil and commercial cases.
The Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition of judgements in civil and commercial matters i that enters into force on 1 March 2002 represents a significant progress in streamlining the procedure for obtaining a declaration of enforceability (exequatur) as compared to the 1968 Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters which it will replace. Under that Regulation, the declaration of enforceability is to be granted on completion of certain formalities and can only be contested upon appeal by the other party. In spite of these changes and simplifications, it does not remove all the obstacles to the unhindered movement of judgements within the European Union and leaves intermediate measures that are still too restrictive.
The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition of judgements and other decisions of judicial authorities as the cornerstone of judicial cooperation to be established within the Union. In civil matters the European Council called for a further reduction of the intermediate measures required to enable the recognition and enforcement in one Member State of a judgement delivered in another Member State. It suggested as a first step to introduce the automatic recognition without any intermediate proceedings or grounds for refusal of enforcement for certain specific types of claims, possibly accompanied by the setting of minimum standards on specific aspects of procedural law. The European Council asked the Council and the Commission to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition including the commencement of work on a European Enforcement Order and on those aspects of procedural law on which common minimum standards are considered necessary to facilitate the application of the principle of mutual recognition.
The joint programme of the Commission and the Council of measures for the implementation of the principle of mutual recognition of decisions in civil and commercial matters i adopted by the Council on 30 November 2000 singled out the abolition of exequatur for uncontested claims as one of the Community's priorities. Pointing to a contradiction in terms in the delay of enforcement of judgements concerning claims that have not been challenged by the debtor caused by an exequatur procedure, the programme designated this area as the first one in which exequatur should be abolished as rapid recovery of outstanding debts is an absolute necessity for business and a constant concern for the economic sectors whose interest lies in the proper operation of the internal market.
At the informal meeting of the Ministers of Justice in Stockholm on 8-9 February 2001 the European Enforcement Order for uncontested claims was confirmed as the pilot project for the abolition of exequatur. During the Swedish presidency, the Council Committee on Civil Law Matters discussed the general approach to be taken and made significant headway, in particular with regard to the scope of application of the legislative instrument to be drafted i.
Contents
- 2. GENERAL OBJECTIVE
- 3. ARTICLES
- Article 2 - Scope
- Article 3 - Definitions
- Claim
- Uncontested claims
- Authority of a final decision
- Ordinary appeal
- Authentic instrument
- Article 4 - Abolition of exequatur
- Article 5 - Requirements for certification as a European Enforcement Order
- Article 6 - Partial European Enforcement Order
- Article 7 - Content of the European Enforcement Order certificate
- Article 8 - Appeal
- Article 9 - European Enforcement Order certificate for protective measures
- Article 10 - Scope of application of minimum standards
- Articles 11, 12, 13 and 14 - Methods of service of the document instituting the proceedings and the summons to a court hearing
- Article 15 - Service in sufficient time to arrange for defence
- Articles 16, 17, and 18 - Due information of the debtor
- Article 19 - Cure of non-compliance with minimum standards
- Article 20 - Minimum standards for relief from the effects of the expiration of time
- Article 21 - Enforcement Procedure
- Article 22 - Access to justice during enforcement proceedings
- Article 23- Stay or limitation of enforcement
- Article 24- Information on enforcement procedures
- Article 25 - Court settlements
- Article 26- Authentic instruments
- Article 27 and Article 28 - Determination of the domicile of the debtor
- Article 29 - Transitional provision
- Article 30 - Relationship with Council Regulation (EC) No 44/2001
- Article 31- Relationship with Council Regulation (EC) No 1348/2000
- Articles 32 and 33 - Implementing rules and committee
In accordance with the programme of measures for the implementation of the principle of mutual recognition and the priorities as set out therein and in line with the preparatory work carried out in the Council Committee on Civil Law Matters, the Commission is hereby proposing a Council Regulation on a European Enforcement Order for uncontested pecuniary claims that eliminates all checks on judgements handed down in one Member State as a prerequisite for enforcement in another Member State.
The Commission is aware of the frequent use that has been made of the term European Enforcement Order with reference to a uniform procedure for obtaining a decision which would then be eligible for enforcement without exequatur throughout the Member States. The Commission communication to the Council and the European Parliament - Towards greater efficiency in obtaining and enforcing judgements in the European Union i already took note of this connotation. At the same time, it emphasised, however, that establishing a uniform procedure and abolishing the exequatur procedure are two distinct questions, the solution to one not being an indispensable precondition for the solution to the other. The programme of measures for the implementation of the principle of mutual recognition addresses both these questions and keeps the distinction between them as it states that in some areas the abolition of exequatur might coincide with the establishment of a specific, uniform or harmonised procedure laid down within the Community.
In the area of uncontested claims, the Commission actively pursues both objectives, albeit not simultaneously in one legislative instrument.
* The present Proposal aims at the elimination of intermediate measures as a prerequisite for enforcement in another Member State of all decisions that have been attained in the verifiable absence of any dispute by the debtor over the nature or extent of the debt. In line with the deliberations in the Council Committee on Civil Law Matters its scope is not restricted to enforcement orders which result from specific speedy procedures for the recovery of debts that are expected to remain uncontested. This approach is intended to provide a tangible benefit for creditors who gain access to speedy and efficient enforcement abroad without the involvement of the judiciary of the Member State where enforcement is sought and the ensuing delays and expenses;
* At the same time, the Commission is preparing a Green Paper on the creation of a uniform or harmonised procedure for a European order for payment ('injonction de payer') whose presentation is envisaged for 2002 i. Such proper harmonisation which might affect not only the injonction de payer procedure itself but also the rules concerning the service of judicial documents in general calls for profound research and wide consultations prior to a legislative proposal. The separation of the abolition of exequatur from procedural harmonisation allows rapid progress in the former area whilst enabling the careful preparation of the steps to be taken in the latter.
In order to strengthen the mutual trust between the Member States' legal systems that constitutes a precondition for the abolition of exequatur and to ensure the strict observation of the requirements for a fair trial in keeping with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 47 of the Charter of Fundamental Rights of the European Union, the Commission considers it essential to lay down some common minimum procedural standards. The characteristic feature of the overwhelming majority of decisions on uncontested claims is that they are delivered in default of participation of the debtor in the court proceedings. It is assumed that this passivity follows from a conscious decision in the light of his assessment of the justification of the claim at stake or from a deliberate disregard for the court action. The lack of an explicit reaction by the debtor leaves the correct and timely service of the documents informing about the claim at stake, his procedural rights and obligations and the consequence of non-participation as the only proof that the debtor has been put in a position enabling him to make the conscious choice to abstain from the court proceedings.
It needs to be recalled that the delivery of a judgement by default in spite of the lack of proper service of the document instituting the proceedings in sufficient time and in such a way as to enable the defendant to arrange for his defence makes up the vast majority of cases in which recognition and enforcement has been refused under the 1968 Brussels Convention. Furthermore, the programme for the implementation of the principle of mutual recognition identifies the certainty, efficiency and rapidity of service of legal documents as one of the foundations of mutual trust between national legal systems and envisages giving consideration to the harmonisation of the applicable rules or to the establishment of minimum standards.
Therefore, this proposal contains minimum standards with regard to the service of documents covering the admissible methods of service, the time of service enabling the preparation of a defence and the proper information of the debtor. Only the compliance with these minimum standards justifies the abolition of a control of the observation of the rights of the defence in the Member State where the judgement is to be enforced.
It is the inevitable corollary of the abolition of exequatur that the responsibility for the control of compliance with the requirements of this proposal, in particular with regard to its minimum standards, is vested in the courts of the Member State where the judgement was given. The European Enforcement Order as devised in this proposal is a comprehensive and transparent certificate of the fulfillment of all the conditions for enforcement throughout the Community without intermediate measures.
It is the purpose of this Proposal to offer an additional option of facilitated enforcement both to the Member States and to the creditors without obliging them to utilise it. It is up to the Member States to decide whether or not to adjust their national legislation to the minimum standards of Chapter III in order to ensure the eligibility of the largest possible number of decisions on uncontested claims for certification as a European Enforcement Order. And it is at the creditor's discretion to choose the procedural path towards rendering a judgement enforceable in another Member State by applying either for certification as a European Enforcement Order or for a declaration of enforceability under Council Regulation (EC) No 44/2001.
Article 1 - Subject matter
This Article briefly summarises the general objective of the Proposal as outlined above.
The general scope of application coincides with that of Council Regulation (EC) No 44/2001.
Paragraphs i and i reproduce Article 32 and Article 62 (as far as orders to pay are concerned) of Council Regulation (EC) No 44/2001.
In line with a consensus that emerged during the preparatory works, the applicability of the instrument is limited to pecuniary claims for a specific amount irrespective of the amount at issue.
The different situations that lead to the assessment of a claim as being uncontested can be grouped into two categories. The first category comprises those cases where the debtor has actively participated in judicial or (for authentic instruments) in extra-judicial proceedings and expressly agreed that the claim is justified. This consent may take the form of an admission of the claim in court followed by a judgement based on that admission, the form of the conclusion of a settlement approved by the court or of a document that is drawn up as an authentic instrument. The paragraphs 4(a) and (d) cover all of these scenarios.
The second category is characterised by the fact that the debtor has ignored a court order to react to the claim and can thus be assumed to have no objections. Paragraph (b) requires the complete absence of any opposition to the claim throughout the proceedings, be it in the context of a purely written procedure or of a procedure including a court hearing where the debtor has not appeared or has appeared but not contested the claim. The mere statement of the debtor that he has difficulties to pay and his application for postponed payment or payment by instalments without invoking entitlement to such payment cannot be considered an objection because it does not call into question the justification of a claim by any means. It refers exclusively to a factual inability to pay or, in other words, to the likelihood of successful enforcement. Paragraph (c), on the other hand, deals with the specific situation of the debtor not appearing at a court hearing that he has been summoned to in case of an earlier opposition expressed by the debtor. Such absence at the hearing can justifiably be interpreted as the result of his decision not to contest the claim any longer. Paragraphs (b) and (c) encompass both judgements by default and payment orders obtained in specific speedy procedures that require the lack of objections by the debtor such as the French injonction de payer or the Austrian or German Mahnverfahren.
The authority of a final decision that is necessary for its certification as a European Enforcement Order under Article 5(a) is acquired under the autonomous definition in paragraph i either if no ordinary appeal against this judgement is available from the outset or if the debtor has not made use of the possibility of lodging such an appeal within the time limits for doing so.
Paragraph i essentially reproduces the definition of this term which was given by the European Court of Justice with regard to Articles 30 and 38 of the 1968 Brussels Convention i and appears to be adequate for the purposes of this Proposal as well.
Unlike the 1968 Brussels Convention and Council Regulation (EC) No 44/2001 that do not define an authentic instrument, this Proposal integrates the requirements as set up by the European Court of Justice i into the text in paragraph 7(a) and, for the sake of completeness and coherence, adds the maintenance arrangements specifically recognised as authentic documents in Article 57 i of Council Regulation (EC) No 44/2001 in paragraph 7(b).
This Article sets out the concept and the significance of the European Enforcement Order. The exequatur procedure as necessary under the 1968 Brussels Convention and under Council Regulation (EC) No 44/2001 before enforcement in another Member State is rendered obsolete by the certification of the judgement as a European Enforcement Order (EEO). The EEO certificate enables the creditor to proceed to enforcement measures in all other Member States without any intermediate steps to be taken in the State of enforcement. Instead of the courts in the Member State of enforcement that have to examine in the exequatur procedure if the requirements for a declaration of enforceability are met, it is now the courts of the Member State of origin that are responsible for deciding whether or not a judgement fulfils the conditions for being certified as a European Enforcement Order.
An enforceable judgement on an uncontested claim must be certified as a European Enforcement Order upon application by the creditor if the requirements as listed in Article 5 are met. This Regulation contains no limitations as to when the creditor may apply for certification. It is one of the prime advantages of this Proposal as compared to the exequatur procedure according to Council Regulation (EC) No 44/2001 that certification as a European Enforcement Order is done by the court of origin familiar with the case at issue and the procedural rules that have been applied and that no judicial or other authorities of the Member State of enforcement need to be involved. The attribution of competence for issuing the European Enforcement Order certificate within the court of origin is not regulated in this Proposal and thus left to the legislation of the Member States.
- According to Article 5(a) the judgement must have acquired the authority of a final decision. At first sight, this threshold appears to be higher than that of Article 38 i of Council Regulation (EC) No 44/2001 which only demands the enforceability in the Member State of origin that is conceivable before the judgement has become final (e.g. if the court has allowed provisional enforcement). It needs to be borne in mind, however, that the declaration of enforceability itself can be appealed until one month after service thereof - or two months if the defendant is domiciled outside the Member State of enforcement - under Article 43 i of the said Regulation. Pursuant to Article 47 i, during the time specified for such appeal no measures of enforcement may be taken other than protective measures. This obligatory 'waiting period' for enforcement measures other than protective measures does not exist in the context of this Proposal. Moreover, in the case of a judgement that is provisionally enforceable but not yet final within the meaning of Article 5(a), the creditor can obtain a European Enforcement Order for protective measures under Article 9.
- Article 5 (b) requires compliance with the rules of Council Regulation (EC) No 44/2001 on jurisdiction in matters relating to insurance, on jurisdiction over consumer contracts and on exclusive jurisdiction. A lack of conformity with these jurisdictional provisions which constitutes a reason for the refusal of the declaration of enforceability under Articles 35 and 45 of that Regulation bars certification as a European Enforcement Order under this Proposal.
- Article 5(c) ensures the protection of the rights of the defence in all cases where the assessment of a claim as being uncontested is based on the lack of participation of the debtor in the court proceedings. In these situations, it has to be guaranteed that the debtor has been properly informed about the proceedings, about the requirements for contesting the claim and the consequences of failing to observe them. Pursuant to Articles 34 i, 41 and 45 of Council Regulation (EC) No 44/2001, the service of the document initiating the proceedings in such a way as not to enable the preparation of the debtor's defence constitutes a ground for refusal of the declaration of enforceability of a judgement given in default of appearance, if only upon appeal by the debtor. The abolition of this control mechanism in the exequatur procedure and the lack of uniformity of the Member States' legislation on the areas of law relevant in this respect - particularly the service of documents - entail the need for an institutionalised check of the minimum standards as established in Chapter III to be performed by the court in the Member State of origin.
- Article 5 (d) also concerns the service of documents but applies only if the debtor is domiciled in a Member State other than the Member State of origin. Whenever that is the case all judicial documents have to be served in compliance with Council Regulation (EC) No 1348/2000. Article 5(d) makes conformity with that Regulation a condition for certification as a European Enforcement Order.
This Article reiterates the substance of Article 48 of Council Regulation (EC) 44/2001 adapted to the characteristics of this Proposal and describing in more detail in which situations only parts of a judgement qualify for certification as a European Enforcement Order.
The European Enforcement Order certificate is to contain both:
- a transparent and standardised summary of all the facts that characterise and individualise the content of the judgement and that are indispensable for enforcement; and
- comprehensive information on the compliance with the requirements for the eligibility for certification as a European Enforcement Order.
The rather detailed nature of the standard form to be filled in serves as a guarantee that the court of origin is confronted with all aspects of examination and thus reinforces the mutual trust between the Member States as regards the scrutiny applied before permitting enforcement in all other Member States without any intermediate measures.
The standard form attached in Annex I is multilingual and thus allows the court of origin to complete it in its official language. Since all the information indispensable for enforcement is provided by filling in names and numbers or ticking boxes, a translation of the certificate is unnecessary save in those truly exceptional cases where the court of origin has to give additional explanations in writing.
Paragraph i, to be read together with Article 21 i, provides a clear rule on the number of authenticated copies of the certificate to be issued that protects the debtor against multiple simultaneous enforcement measures throughout the Member States in the same way as in the Member State of origin. If the national legislation lays down that more than one enforceable copy of the judgement is supplied to the creditor (e.g. in case of a joint liability of several debtors), the same rule will apply for the European Enforcement Order certificate.
The efficiency of enforcement in another Member State by means of a European Enforcement Order certificate is enhanced by the fact that unlike in the case of a declaration of enforceability under Council Regulation (EC) No 44/2001 an appeal against the certificate itself is excluded. If the debtor wants to prevent a European Enforcement Order certificate from coming into existence he has to contest the claim and to thereby exclude it from the scope of application of this Regulation. If the claim remains uncontested, upon application by the creditor it is up to the court of origin to examine the fulfilment of the requirements for certification without a possibility to appeal against the resulting decision.
In that respect, it needs to be borne in mind that Article 34 i of Council Regulation (EC) No 44/2001 just as Article 27 i of the 1968 Brussels Convention set up a specific and independent legal standard regarding the rights of the defence not to be equated with observance of national rules and thus raising specific legal issues. As a result, it is conceivable that the court of origin has applied its national procedural law faultlessly and that the declaration of enforceability still has to be refused because of a difference between national law and the necessary protection of the rights of the defence under Article 34 i or 27 i, respectively, as interpreted by the European Court of Justice i.
Nevertheless, under Articles 34 i and 41 of Council Regulation (EC) No 44/2001 the court in charge of the exequatur procedure is expressly prohibited from any review of compliance with the rules laid down in Articles 34 and 35. Even in case of a blatant violation of Article 34 i it is obliged to deliver a declaration of enforceability if the purely formal requirements under Article 41 are met. Only in case of an appeal by the defendant can the court engage in an examination of the compliance with the rights of the defence. But even then the court is precluded from refusing or revoking exequatur in spite of a violation of these rights as defined in Article 34 i if the defendant has not made use of an existing opportunity to challenge the judgement in the Member State of origin. In other words, the obligation is placed on the defendant to make use of a right to challenge a judgement by default (or, in the terminology of this Proposal, to contest the claim) in order to be entitled to judicial review regarding the observance of Community rules on the rights of defence. An isolated appeal only against the declaration of enforceability while leaving the claim at issue uncontested cannot be successful.
This Proposal applies a similar logic. There may be differences between the standard of the protection of the debtor's rights under the national systems of the Member States and the rules established by Chapter III. Nevertheless, in the light of
- the thorough control of compliance with the requirements for certification as a European Enforcement Order as imposed by Chapter III and made transparent in the certificate in accordance with Article 7,
- the mutual trust between the Member States as to the careful administration of justice, and
- the guarantee to be relieved from the effects of the expiration of time if the debtor has not been in a position to actually contest the claim under Article 20,
it is justified to exclude a specific appeal against certification as a European Enforcement Order itself, limited to the requirements laid down in this Proposal. It can be expected from the debtor to use all means at his disposal to contest the claim including an ordinary appeal against the judgement and an application for relief under Article 20.
Before a judgement has acquired the authority of a final decision enforcement is possible only as provisional enforcement whose effects have to be reversed if the judgement is overruled upon appeal. The system of granting provisional enforceability of judgements always strikes a delicate balance between the interest of the creditor in swift enforcement and the interest of the debtor in avoiding potentially irreparable damage if the loss incurred due to provisional enforcement cannot be recovered. The Member States have found widely different solutions in that respect. It must also be taken into account that the granting of provisional enforceability under certain conditions is inextricably linked to the possibility of the debtor to stop or suspend such enforcement under certain conditions or to make it conditional on the provision of security.
These complexities would entail intricate problems if provisional enforceability in the Member State of origin was considered to be sufficient to permit unlimited enforcement leading to the satisfaction of the claim in the Member State of enforcement. The law of the Member State of enforcement that governs the enforcement procedure under Article 21 i on the suspension of enforcement may not be suitable for the type of provisional enforceability as envisaged in the Member State of origin and produce the undesired result of making a judgement more easily enforceable abroad than in the Member State of origin.
Therefore, this Proposal suggests a clear-cut solution avoiding the aforementioned difficulties. Full enforcement can only take place after the judgement has acquired the authority of a final decision. If the judgement is provisionally enforceable in the Member State of origin, however, the creditor can safeguard successful enforcement by taking protective measures based on a European Enforcement Order certificate until the judgement has become final.
This certificate itself provides full justification for the protective measures available in the Member State of enforcement. If the involvement of the courts of that Member State is necessary to take such measures the requirements for them have to be considered fulfilled upon the presentation of the certificate. No fulfilment of additional conditions (e.g. a concrete danger that the debtor alienates his property) can be required even if it constitutes a prerequisite of protective measures under the law of the Member State of enforcement.
This Article introduces Chapter III which establishes the minimum standards regarding the rights of the defence that have to be observed to render a judgement eligible for certification as a European Enforcement Order. The proper service of the most relevant documents at such a time and in such a manner as to enable the debtor to defend himself if he wishes to do so is at the heart of this Chapter. The pertaining requirements are applicable only if the debtor has not participated in the proceedings or not appeared at a court hearing. In the other cases of uncontested claims as defined by Article 3 i the debtor has explicitly agreed to the claim and thus actively demonstrated his decision not to defend the case.
By allowing the certification of a judgement as a European Enforcement Order only upon compliance with the conditions of Chapter III, this Proposal leaves it to the discretion of the Member States whether or not they want to adapt their national legislation to these minimum standards if considered necessary or desirable. It does not aim at the harmonisation of the rules governing uncontested claims or the rules on the service of documents.
Articles 11, 12, 13 and 14 - Methods of service of the document instituting the proceedings and the summons to a court hearing
These Articles contain the focal point of requirements with regard to the rules on service. It distinguishes between
- principal methods of service where there is direct proof that the document instituting the proceedings has reached the debtor himself, and
- substitute methods of service where there is proof that the document has reached not the debtor himself but the sphere of the debtor where it is his responsibility to take care that he obtains access to this document.
Substitute service is allowed under Article 12 only if reasonable efforts of personal service have been unsuccessful. If postal service or service by electronic means under Article 11 has not produced the desired result, an attempt of personal service has to be made before resorting to substitute service.
Articles 11 i and 12 i cover the two different following situations:
- the debtor cannot represent himself in court (e.g. as a minor or as a legal person) and a natural person to represent him in all legal matters is determined by law (e.g. the parents or the director of a company). The term statutory legal representative refers to this situation;
- the debtor has chosen a lawyer or a lay representative to represent him in the concrete court proceedings. The term authorised representative refers to this situation.
A competent official under Article 11(1)(b) and Article 13 may be a public official or anybody else who has been empowered to effect and to certify service by the Member State where service takes place.
Article 12 i underscores that all methods of service that resort to a legal fiction of the document reaching the debtor's sphere for want of a known current address where service can be effected are not recognised for the purposes of this Proposal.
Article 14 is of practical relevance only for the summons to a hearing that is served on the debtor not with the document instituting the proceedings but at a later time. Article 14(b) has been added for the particular scenario of a debtor who has appeared in one hearing and contested the claim but then chooses not to oppose any longer and does not attend a second hearing he was summoned to orally in the first one.
This Article provides a concrete and clear threshold as to which period of time is to be considered sufficient to arrange for one's defence. It imposes a longer minimum period to respond to the claim if the debtor is domiciled in a Member State other than that where the court proceedings take place, taking into account the more complex nature of cross-border litigation. The same minimum time limits apply to appearance or representation in court in case of a summons to a hearing that is not served together with the document instituting the proceedings.
It goes without saying that the debtor is only in a position to arrange for his defence if he knows the claim against him, the requirements for his participation in the court proceedings and the consequences of his non-compliance with those requirements. Most of the mandatory aspects of the debtor's information are self-explanatory.
Article 17(c) takes account of the differences between the Member States' rules on the extent to which a court has to examine whether or not a claim is well-founded or at least prima facie well-founded before entering a judgement in favour of the creditor even in the absence of an objection. If such an examination does not take place at all or is only limited and consequently the debtor cannot rely on an assessment of the claim as unfounded by the court, the debtor needs to be informed about this. The same need arises if a judgement is subject to no ordinary appeal at all or to limited judicial review only; Article 17(d) refers to such situations.
Finally, the possibility of certification of a judgement given in the absence of an objection or in default of appearance as a European Enforcement Order that cannot be appealed independently warrants drawing the debtor's attention to these specific circumstances as prescribed in paragraph Article 17(e). He needs to be made aware of the necessity to put forth objections to the claim in order to avoid these consequences.
Pursuant to Article 34 i of Council Regulation (EC) No 44/2001, the declaration of enforceability cannot be refused for a judgement given in default of appearance even though the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence if the defendant failed to commence proceedings to challenge the judgement when it was possible for him to do so. Thus, an obligation is placed on the defendant to participate in the proceedings to make an effort to prevent a judgement in favour of the plaintiff or to appeal against it. If the defendant has become aware of the proceedings against him he cannot simply rely on a procedural defect at the beginning of these proceedings and on its automatic effect on enforceability abroad.
This Article extends the same reasoning to this Proposal and ensures coherence with Council Regulation (EC) No 44/2001 in that respect. Chapter III as a whole translates the general principle of the rights of the defence as enshrined in Art. 34 i of Council Regulation (EC) No 44/2001 into more specific rules. Consequently, a rule governing the cure of non-compliance with procedural minimum standards must take account of this situation and respond to such non-compliance in a more detailed fashion.
Paragraph i refers to all the requirements laid down in Articles 11-18 whose non-observance is cured if the judgement itself which is subject to ordinary appeal has been served on the debtor by an admissible method and accompanied by the information necessary to lodge an ordinary appeal but the debtor has not made use of this possibility to challenge the judgement.
Paragraph i enables cure solely with regard to the method of service applied. Even though that method is not in conformity with Articles 11-14, there is no need to exclude certification as a European Enforcement Order if it is established beyond doubt that the debtor has personally received the documents in question and if the requirements of Articles 15, 16, 17 and 18 are met.
Even if all the requirements as set out in Chapter III, especially concerning the methods of service, have been meticulously observed, it is inevitable that under certain exceptional circumstances such as force majeure the debtor may not have obtained knowledge of the documents to be served on him without any fault on his part. This Article entitles the debtor to relief in such situations by providing an extraordinary remedy. If the debtor did not receive the judgement in time, he is granted the possibility of appeal even beyond the time limits for such appeal. If the situation that precludes the debtor from participating in the court proceedings occurs at an earlier point in time, i.e. he has not obtained knowledge of the document instituting the proceedings or of the summons to a hearing, he is only entitled to such relief unless the conditions of Article 19 i are fulfilled, that is to say unless he omitted to make use of a possibility to challenge the judgement by means of an ordinary appeal.
Paragraph i is to make clear that in a situation as defined under paragraph i the debtor has the right to full relief. Therefore, in Member States where the judgement at issue cannot be appealed at all or such appeal is restricted and does not allow a full consideration of questions of fact and law relief has to be granted in another form than that of appeal, be it a reopening of the proceedings or an extraordinary appeal permitting full judicial review.
Paragraph i sets a minimum standard with regard to a time limit for an application for relief starting when the debtor has become aware of the court proceedings against him.
As this Article lays down minimum standards only, it does not preclude the Member States from granting relief more generously.
Paragraph i lists the documents that have to be submitted to the enforcement authorities in the Member State of enforcement, including a certified translation of those parts of the multilingual section of the certificate that might require translation in exceptional circumstances as explained with respect to Article 7.
Closely resembling Articles 51 and 52 of Council Regulation (EC) No 44/2001 but taking into account the fact that a procedure for the issuing of a declaration of enforceability in the Member State of enforcement is no longer necessary, paragraph i prohibits all obstacles to the access to enforcement for judgements handed down or creditors domiciled in a State other than the Member State of enforcement by demanding additional fees or securities from such creditors.
Paragraph i addresses other requirements potentially deterring from enforcement creditors domiciled outside the Member State where such enforcement is to take place.
Article 22 i is closely related to the grounds for refusal of exequatur under Article 34 i and i of Council Regulation (EC) No 44/2001 but modifies the conditions under which the existence of an irreconcilable judgement can bar enforcement. This paragraph eliminates the distinction between irreconcilable judgements handed down either in the Member State of enforcement or in another Member State or a third State. Judgements given in the Member State of enforcement are not automatically awarded priority as under Article 34 i of Council Regulation (EC) No 44/2001. Rather, the same standard applies to all irreconcilable judgements no matter where they originate. As to the content of that standard, an additional condition is added as compared to Article 34 i of Council Regulation (EC) No 44/2001. It is reasonable to impose on the debtor an obligation to raise the existence of an irreconcilable judgement in another State as early as possible by enabling him to put forth such a submission at the stage of enforcement only if he has not been able do so during the original proceedings leading to the enforceable decision without any fault on his part.
Paragraph i prohibits any review of the judgement including its certification as a European Enforcement Order as to its substance in the Member State of enforcement. This proscription includes the examination of reasons for refusal or revocation of exequatur under Articles 34 and 35 of Council Regulation (EC) No 44/2001. The compliance with the pertinent requirements - as far as these are considered appropriate and necessary in the context of this Proposal - is ensured by the conditions for certification.
Paragraph i does not concern legal action brought against enforcement itself that does not involve a review of the judgement as to its substance. Such litigation is governed by the national legislation of the Member State of origin under Article 21 i.
If the debtor applies for relief under Article 20 or for judicial review under Article 22 i, the final outcome of the pertinent proceedings will determine whether or not the European Enforcement Order will remain enforceable. For the period of uncertainty between such an application and a final decision the enforceability of the European Enforcement Order is not automatically suspended. This Article leaves it at the discretion of the court or competent authority in the Member State of enforcement to stay or limit enforcement upon application by the debtor by one of the means mentioned. The assessment of the prospects for success of the action taken by the debtor under Articles 20 or 22 as well as the likelihood of irreparable damage caused by unconditional enforcement should be among the guiding considerations. The same rule applies if the debtor applies for retrial or annulment of the judgement in the Member State of origin.
The elimination of exequatur facilitates the enforceability of a judgement in another Member State but it does not overcome the obstacle to access to enforcement that consists in the considerable differences in the Member States' legislation on the enforcement procedure itself. While not making an attempt to harmonise that procedure, this proposal aims at alleviating the problems implied by the diversity of national rules by institutionalising a system of information on the Member States' systems of enforcement via the European Judicial network as established by Council decision 2001/470/EC.
Court settlements on pecuniary claims for a specific amount are eligible for certification as a European Enforcement Order. The applicability of Chapter II as appropriate refers to the procedure of giving the European Enforcement Order certificate but not to the requirements as set out in Article 5. As regards Chapter IV, the exclusion of the applicability of Article 22 i is consistent with Articles 57 and 58 of Council Regulation (EC) No 44/2001 in that the existence of an irreconcilable judgement is not a possible obstacle to enforcement.
The remarks on Article 25 are equally valid for this Article.
Paragraph i attributes the competence for the certification as a European Enforcement Order not to a court but to the authority that has given authenticity to the document, for example to the notary public who has drawn up the document. Since contrary to all other enforceable titles covered by this Proposal a court has never been involved in the authentic instrument's coming into existence, this measure avoids the participation of an additional institution and the resulting danger of delays. It is justified by the mutual trust between the Member States that is already reflected in Article 57 i of Council Regulation (EC) No 44/2001.
Paragraph i establishes a specific minimum standard for authentic instruments with regard to the information of the debtor about the immediate enforceability that is not as self-evident as for a court settlement.
These two Articles essentially reproduce Articles 59 and 60 of Council Regulation (EC) No 44/2001.
For the purposes of simplicity and coherence, this Article establishes a uniform and straightforward rule rendering this Regulation applicable only for court proceedings instituted or authentic documents drawn up after its entry into force. Paragraph i essentially reproduces Article 30 of Council Regulation (EC) No 44/2001.
This Proposal is offering the creditor an efficient way to render a judgement or an instrument under Chapter V enforceable in another Member State without any intermediate measures in that State. It does not oblige the creditor to choose this path. It is entirely at the creditor's discretion to opt either for the European Enforcement Order certificate or for a declaration of enforceability under Council Regulation (EC) No 44/2001. The procedures governing recognition and enforcement contained in other Community instruments on specific matters or in conventions as referred to in Articles 67 and 71 of Council Regulation (EC) No 44/2001 respectively also remain available. If certification as a European Enforcement Order has been refused the creditor may still apply for recognition and enforcement under the other instruments.
Nevertheless, the proceedings following an application for certification as a European Enforcement Order are exclusively governed by this Proposal which in that context supersedes the rules on recognition and enforcement in Council Regulation (EC) No 44/2001.
This Article makes clear that if the court proceedings that have led to a judgement on an uncontested claim involve cross-border service of documents both the minimum standards of Chapter III of this Proposal concerning the methods of service and Council Regulation (EC) No 1348/2000 apply simultaneously. In principle, there is no potential conflict between these two instruments that needs to be resolved as Regulation No 1348/2000 does not deal with specific methods of service in the context of guaranteeing that the rights of the defence are properly observed.
There is one exception to this rule, however, since Article 19 i of Council Regulation (EC) No 1348/2000 allows, under certain conditions, to give a judgement in default of appearance of the defendant although the court has no knowledge let alone proof that the document instituting the proceedings has been served on the defendant in sufficient time and in such a way as to enable him to arrange for his defence. Such a judgement must be based on the legal fiction or presumption of the observance of the rights of the defence. Therefore, it collides with the minimum standards established in this Proposal and cannot be eligible for certification as a European Enforcement Order.
Article 33 refers to the Advisory Committee provided for by Regulation (EC) No 44/2001 that will assist the Commission in the implementation as necessary under Article 32, namely the updating of the standard forms in the Annex or the making of technical amendments thereto. The Committee will be convened only if and when the need for such amendments arises.