Are Judicial Procedures in the European Union Really Simple? The European Order for Payment (EB Nr.1896/2006) and the European Small Claim (EB Nr. 861/2007) Procedures: Theory and Practice Dovilė Satkauskienė Manager, Lithuanian Chamber of Bailiffs Conference “The European order for payment and the European small claim procedures: : are consumers protected?“ February 22, 2013 Vilnius

Issuance of the European Order for Payment A necessary condition applying for the European order for payment – expired payment due date. It is applicable when one of the party’s permanent or habitual residence is in a different state from the court seized of an application. The claimant submits an application of a standard form to the court, which shall include the information to be sufficient for the claim to be clear and well-grounded, so that the defendant could take a decision to oppose the claim or not to dispute it. The application can be without any evidence, so the claim shall be described exhaustively. Application shall be filled out in the language of a respective state and submitted to the court in accordance with the jurisdiction of the relevant state. The court shall review the application, including the jurisdiction issue and evidence description. The defendant shall be informed by the order for payment about the possibility to pay the requested amount or send his statement of opposition within 30 days. The court shall ensure that the order for payment is serviced to the defendant in accordance with the national legal acts. Standard Regulation forms shall be used throughout the whole process.

The European Small Claim Procedure (ESCP) The amount of the claim shall not exceed EUR 2,000 excluding interest, expenses and costs, when a competent court receives the claim form. It is applicable, when one of the party’s residence or permanent presence, or habitual residence location is in another country different from that of the court siesed. It does not extend to revenue, customs or administrative matters, or the liability of a state for acts and omissions in the exercise of state authority, matrimonial property regimes, sustentation obligation, will, inheritance, bankruptcy procedures, arbitration, employment law, lease of real estate, except cases for financial claims, violations of private life and personal rights, including defamation. The claimant submits an application to the court having filled in a standard claim form. It is a written procedure except for the cases when, in the court’s opinion, an oral hearing is necessary. Litigation expenses shall be determined in accordance with the national legal acts.

States, where a simplified procedure of small claims is used Germany. There are no special rules of the Civil procedure for small claims. However, a special procedural provision exists, which includes a possibility to apply a simplified procedure, if a disputed amount does not exceed EUR 600. France. A simplified procedure in a district court, called a procedure for an injunction to pay. The court office shall be applied orally or by a written application submitted to the office or a competent court. The court office invites the parties to a session by a registered mail with proof of receipt. At the session, the judge tries to bring both parties together, and, with their consent, may appoint a court mediator. If the mediation fails, the process shall continue. Sweden. Special procedure in place at the general competence court of the first instance, if the claimed amount does not exceed a certain threshold value. The threshold amount is not fixed by the law; it is related to the so-called basis price total, and it means that the threshold value is calculated with respect to the price evolution. The possibility of the procedure application is not limited only in certain type of cases, e. g. in consumer disputes. England and Wales. Small claim procedure may be used, when the claim amount does not exceed GBP 5,000. However, the disputed amount is not the only argument to be considered. The type of the claim is also considered as well as the scope and nature of readiness to solve the case fairly. Scotland. A simplified procedure is applied in the cases, where the value does not exceed GBP 750. Procedure of a higher level is called “a case hearing by a simplified order“; it includes the cases of up to GBP 1,500 and they are somewhat more ocmplicated than the small claim procedure.

Execution of the European Order for Payment The European order for payment issued in one member state for the purpose of its execution shall be equalized to the one issued in the Member State where its execution is requested. The European order for payment to be executed in another Member State is recognized and enforced in the other EU countries without the need for a declaration of enforceability and without any possibility of opposing its recognition.. If within the time limit laid down in Article 16 of the Regulation no statement of opposition has been lodged with the court of origin, the court shall without delay declare the European order for payment enforceable using standard form of the Regulation. The European order for payment is issued for enforcement in the language, which has been declared to the European Commission by the relevant state. For enforcement in another Member State, the claimant shall provide the competent enforcement authorities of that Member State with a copy of the European order for payment, which satisfies the conditions necessary to establish its authenticity, and, if requested, a translation of the European order for payment into the official language of the Member State of enforcement.

Refusal of Enforcement Enforcement shall, upon application by the defendant, be refused by the competent court in the Member State of enforcement if the European order for payment is irreconcilable with an earlier decision or order previously given in any Member State or in a third country, i. e. if: the earlier decision or order involved the same cause of action between the same parties; and the earlier decision or order fulfills the conditions necessary for its recognition in the Member State of enforcement; and the irreconcilability could not have been raised as an objection in the court proceedings in the Member State of origin. Enforcement shall also be refused if the defendant has paid the claimant the amount awarded in the European order for payment.

Enforcement A European order for payment which has become enforceable in the Member State of origin shall be recognized and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition. The procedural documents shall be submitted in the language identified by the Member State. The claimant shall provide a copy of the European order for payment, as declared enforceable by the court of origin, which satisfies the conditions necessary to establish its authenticity, and a copy of a standard form issued by the court on the ruling in accordance with the ESCP.

Refusal of Enforcement in Accordance with the ESCP Enforcement shall, upon application by the defendant, be refused by the competent court in the Member State of enforcement if the European order for payment is irreconcilable with an earlier decision or order previously given in any Member State or in a third country, provided that: the earlier decision or order involved the same cause of action between the same parties; and the earlier decision or order fulfills the conditions necessary for its recognition in the Member State of enforcement; and the irreconcilability could not have been raised as an objection in the court proceedings in the Member State of origin.

Enforcement in the EU Member States ENGLAND AND WALES The creditor provides the application to the High Court to register the court ruling. The application shall be accompanied by: The court ruling or its authorized copy. If the court ruling is done not in English, its translation into English shall be included: It shall be approved by the Notary Public or another person having the same mandate of right, or It shall be accompanied with a written authorization of the accuracy of the translation. When the ruling is registered, an application for its enforcement shall be submitted. If the High Court is requested to enforce the ruling, the application shall be submitted to that Court. If the ruling is to be enforced by a County Court, the application is submitted to a relevant Court. The creditor shall cover usual court expenses, which depend on the way of the enforcement. A fee is also applied for the registration of an application. The creditor shall choose the way of the enforcement and the property to which the claim is directed. It relates to the amount of the expenses. In order for the ruling to be executed, the creditor shall have an address in England and Wales, where the documents will be served. It can be a solicitor’s address.

Enforcement in the EU Member States SCOTLAND An application for the registration of the court ruling or an authentic document shall be submitted to the Court of Edinburgh. The following documents shall also be included: Authorized copy of the court ruling; A notice that the court ruling is recognized and enforceable in the Member State of origin; In the case when the ruling was taken without participation of the other party, the original document or its authorized copy to prove that the absent party was properly informed by servicing a notice with proof of receipt about the case in court; If applicable, a document to prove that the applicant was provided with the legal advice guaranteed by the state in the country of origin. When the procedure of registration is finalized in the Court and an institution for the ruling registration is identified, the creditor shall apply to the registering institution. The register manager shall issue an authorized copy of the registered ruling, which can be submitted to the enforcement institution. For the ruling to be executed, the creditor shall have an address in Scotland,, where the documents will be served. Usually t is the address of the solicitor.

Enforcement in the EU Member States IRELAND Applications for the enforcement shall be submitted to the central office of the High Court of Ireland independent of the residential address of the debtor. Applications shall be submitted in person; they shall not be sent by post. The rulings are enforced by the sheriffs (in Dublin and in Cork) and by district enforcement officers (in other locations). At the submission of the enforceable document for the seizure and sale of property, an enforcement expense fee of EUR 19 is applicable. The payment for the enforcement of such document is 5 per cent of the recovered EUR 5,000 and 2.5 per cent of the amount difference (if the recovered amount is larger than EUR 5,000).

Enforcement in the EU Member States FRANCE The enforcement document for recovery is submitted to the bailiff. The court ruling enforcement involves enforcement expenses that are calculated in accordance with the defined basis fee and are related to the amount to be recovered. Fees for every action of the bailiff are applicable (property seizure, sales of the property seized, search for information, etc.) For example, if the claim amount is EUR 10,000, the following fees apply for certain court ruling enforcement measures: Seizure of the bank account: a stable fee including tax: EUR ; Seizure of real estate: a stable fee including tax: EUR 66.98; Seizure of a transport vehicle with a relevant notice to the regional administration unit: a stable fee including tax: EUR ; An official notice, which is serviced in order to seize real estate: a stable fee including tax: EUR Apart from these stable fees, proportional charges are applied, which, including the fees, for all the claim amount to EUR , where EUR shall be paid by the debtor and EUR by the creditor.

Enforcement in the EU Member States GERMANY The enforcement is done by the bailiff. He is an officer of the land administrative courts reporting to the district court director. The enforcement document shall be submitted to the bailiff for enforcement with respect to the debtor’s place of residence. The bailiffs’ territories are rather small, bet there is no internet site that may provide information about their activity territories and the bailiffs working there. With respect to the requirement that shall be secured, the law defines various enforcement possibilities, consequently expenses also differ. The fee for the debtor’s real estate seizure executed by the bailiff is EUR 20. If the seized property is sold in auction or it sold by realization (i. e. the seized property is realized), an additional fee is EUR 40. Besides, at the enforcement of court rulings of a certain nature, an additional fee is calculated, which depends on the amount to be recovered or the nature of the actions performed.

Enforcement in the EU Member States POLAND Court rulings issued by the EU Member States, peace agreements concluded or authorized by these courts and official documents concluded in the EU member States and approved in these states as European enforcement documents, shall be considered as enforcement documents. The enforcement starts with respect to the creditor’s application submitted to the district court enjoying jurisdiction, or to the bailiff of such court considering who has the competence to start the enforcement. Enforcement expenses: Payment execution: 15 % of the claim amount; Claim assurance: 5 % of the claim amount after it was assured; Property seizure: fixed fee equal to 50 % of the average remuneration that is expected; Distraint or another list of property: a fixed fee of 10 % of the average remuneration that is expected for every hour or its part; Property transfer to the creditors in other cases: a fixed fee of 25 %; when the enforcement is executed due to additional property violations, the fee increases each time by 100 %.

Enforcement in the EU Member States LATVIJA The enforcement documents are enforced by the bailiffs. The list of bailiffs is published by the Latvian Chamber of Bailiffs. The fees for the acts performed by the bailiffs in Latvia start from several dozen lats and may reach several hundred or several thousand lats. The amount of the enforcement expenses depends on the amount claimed. For example, at submission of the enforcement document for the recovery of EUR 501 – 3000, the fee is EUR 80. For the recovery of EUR 3001 – 10,000 the fee is EUR 125. Having recovered the amount of up to LVL 3,000 the bailiff’s remuneration is 15 per cent of the recovered amount. The expenses for separate enforcement actions are also to be paid for.

Useful References European Judicial Atlas in Civil Matters (information on competent courts of the Member States, relevant languages, document standard forms, etc.): _lt.htm?countrySession=2& _lt.htm?countrySession=2& Court system of the United Kingdom (information on the county courts contacts): Court system of the United Kingdom (information on taxes): Professional association of Scottish enforcement officers: Latvian Chamber of Bailiffs (list of bailiffs): Search for French court officers: justice.fr/Annuaire.aspxhttp:// justice.fr/Annuaire.aspx

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