1. History and introduction

 

By creating a European enforcement order for uncontested claims the European Union has tackled a common problem faced in cross-border issues when enforcing a court order obtained in one state in another state of the EU. Procedural rules have been adapted to correspond more closely to the effects of free movement in the EU and to the reality of a common market without borders, thus offering higher legal certainty when seeking civil justice within EU boundaries and allowing the free circulation of decisions.

 

In a cross-border context in the past, in which the plaintiff and the defendant did not share home-states, the plaintiff was often burdened with the decision whether to proceed in his own home-state or in the defendant’s. Proceeding in the plaintiff’s home-state often involved complications determining the appropriate forum to hear the case, and even after obtaining a favourable judgement, the plaintiff faced the risk of this judgement being refused recognition in the jurisdiction where the defendant’s assets were located. However, seeking jurisdiction in the defendant’s home-state in order to avoid a forum dispute, bore the risk of extra costs and delay which accompany litigation abroad. Both options were far from offering the creditor a satisfactory solution for seeking justice – on the contrary: the abundance of civil litigation systems opened paths to abuse and evasion of judgement by moving assets from one jurisdiction to another.

 

The first step towards the establishment of common jurisdictional bases and enforceability of judgements obtained in one Member State in all other Member States was made by the requirement of Art. 220 (now 293) of the Treaty of Rome:

 

“Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals … the simplification of formalities governing the reciprocal recognition and enforcement of judgements of courts or tribunals and of arbitration awards.”

 

The Brussels Convention of 1968 fulfilled this obligation and entered into force in 1973, granting parties the security of enforceability of a judgement in other Member States and ridding them of unpleasant lengthy forum disputes. In 2002 the Convention was  replaced by a new Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction of judgements in civil and commercial matters still requiring a recognition procedure in the Member State of enforcement (exequatur procedure).

 

Recently the Council has adopted Regulation (EC) No 805/2004 creating a European enforcement order for uncontested claims, which will be treated as if it has been granted locally in the recognizing state without the need of an intermediate procedure in the Member State of enforcement.

 

2. Entry into force and scope

 

Regulation (EC) No 805/2004 of 21 April 2004 has been applicable since 21 October 2005[1], meaning that judgements, court settlements and authentic instruments on uncontested claims dating 21 January 2005 and after could be certified as a European enforcement order from 21 October 2005 on. The regulation is applicable in all Member States with the exception of Denmark.

 

Regarding the material scope, the regulation includes most civil and commercial matters (Art. 2/1). It does not, in particular, apply to litigation relating to rights in property arising out of a matrimonial relationship, wills and successions, bankruptcy, social security and arbitration (Art. 2/2).

 

3. General overview of the regulation

 

In Art. 4 a claim is defined as “a claim for payment of a specific sum of  money that has fallen due or for which the due date is indicated in the judgement, court settlement or authentic instrument”.

 

Art. 3 of the Regulation (EC) No 805/2004 provides us with the definition of  an “uncontested claim” including references to the law of the Member State of Origin:

 

-       the debtor expressly agrees to the claim by admission or by means of settlement which has been approved by a court or concluded before a court in the course of proceedings

-       the debtor has never objected to it in the course of the court proceedings

-       the debtor has not appeared or been represented at a court hearing after having initially objected to the claim leading to tacit admission

-       the debtor has expressly agreed to it in an authentic instrument

 

In Chapter II, Art. 6 of  the regulation determines the requirements for certification of a European enforcement order of a judgement at the court of origin. In particular, the regulation requires judgements to be enforceable in the Member State of origin, including judgements that are temporarily enforceable.

 

Enforceable decisions on costs related to court proceedings are to be included in the enforcement order[2] and the regulation offers the possibility of rectification or withdrawal (Art. 10). There is no appeal against the issuing of a European Enforcement Order certificate (Art. 10/4).

 

4. Minimum Standards for the procedures of uncontested claims

 

It is essential that the court proceedings in the Member State of origin meet certain procedural requirements in order for a judgement on an uncontested claim to be certified as a European enforcement order. These are laid out in the regulation with minimum standards (Chap. III) for the service of documents for the institution of proceedings and for the summons to a court hearing if applicable) to ensure that the rights of the defence are respected. These standards are conditio sine qua non for certification.

 

In particular the document instituting the proceedings must contain:

 

-       the claim (names and addresses of the parties, the amount of the claim, the interest rate, if sought, the statement of the reason for the claim)

-       the procedural steps necessary to contest the claim (deadline for contesting the claim and the consequence of absence of objection or default of appearance)

 

5. The enforcement procedure in the country of destination

 

Once the creditor has received the certification, he is entitled to seek enforcement in the Member State of enforcement. He must provide the authority responsible for enforcement with (Art. 20):

 

-       a copy of the judgement

-       a copy of the European enforcement order certificate

-       where necessary, a transcription of the order or a translation thereof into the official language of the Member State of enforcement

 

The rules for the actual enforcement are those of the Member State of enforcement (Art. 20/1), and the regulation itself does not contain many legal remedies for the debtor as can be found in Art. 23, which under certain circumstances allows the debtor to apply for a stay or limitation of enforcement before the court/authority in the Member State of enforcement.

 

Enforcement can be refused by the court of the Member State of enforcement under certain circumstances upon application of the debtor (Art. 21), but the judgement and certification may under no circumstances be reviewed as to their substance by this court (Art 21/2).

 

6. Examples of adaptations in national law in Spain and Germany

 

By adapting their national procedure rules to fit the minimum standards, the regulation requires for certification as a European Enforcement order, Member States insure the compatibility of their procedure rules with those of the regulation. Furthermore, certain particulars which are not  laid out in the regulation in Arts. 21 and 23, which can lead to refusal of enforcement by the court, are open to determination by the legislator of enforcing Member States.

 

The German Law of Implementation of the Regulation (EC) 805/2004 (= Deutsches Durchführungsgesetz zur VTVO) entered into force on 21 October 2005, adding eight new provisions to the German Code of Civil Procedure (= ZPO). The national rules concerning the regulation were integrated in §§ 1079 et sqq. ZPO and include provisions for the certification of the judgement as European enforcement order              (§§ 1079-1081 ZPO) and provisions for the enforcement of judgements from other EU Member States in Germany (§§ 1082-1086). The German Law of Implementation of the Regulation (EC) 805/2004 has also adapted the ZPO (Book 2 and 3 and §§ 790-791) to the minimum standards laid out in the regulation.

 

The Spanish “Proyecto de Ley” of 28 October 2005 establishing procedural rules to facilitate the application of certain EC regulations foresees a new final disposition of the Spanish Law of Civil Procedure 1/2000 for this purpose. Procedural rules, in particular regarding the rectification or withdrawal of an enforcement order, the refusal of certification, and competence to issue authentic instruments form part of this new disposition as well as rules for jurisdiction (territorial competence), which declare the courts of first instance of the debtor’s residence in the Member State of enforcement as responsible for enforcement.

 

6. Differences between (EC) No 805/2004 and (EC) No 44/2001

 

According to Art. 251 of the Treaty establishing the European Community, the implementation of a European Enforcement Order for uncontested claims  should offer significant advantages as compared with the exequatur procedure  provided for in the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction of judgements in civil and commercial matters.

 

Before 21 October 2005 when seeking recognition of a German judgement in, e.g., Spain, the creditor was required to request the German court to issue an official form containing essential facts regarding the judgement. Upon receipt, the form and a copy of the judgement were sent to the competent Spanish court. The Spanish court then decided whether the judgment could be declared enforceable, meaning that the judgment was equally effective in Spain.

 

Starting on 21 October 2005 the person seeking enforcement can alternatively opt for the procedure offered by Regulation (EC) No 805/2004. The regulation creating a European Enforcement Order for uncontested claims does require the court of the state of origin to issue a unified “European Enforcement Order Certificate”. This title, however, is then directly enforceable in all Member States (with the exception of Denmark) without the need for a declaration of enforceability and without any possibility of opposing its recognition (Art. 5 of EC No 805/2004).

 

In neither of the cases has a unified European enforcement title been created, e.g. by creating a unified European procedure. The Member States have rather decided on approving national enforcement orders as European enforcement orders under the conditions of the EC regulations.

 

7. Conclusions and future outlook

 

Although it might seem that Regulation (EC) No 805/2004 is just another small step in the direction of legal unification and the free circulation of judgements within the EU, the option to skip the declaration of enforceability in the Member State of Enforcement does offer hope that the enforcement of judgements in another EU state will become a speedier process when seeking civil justice.