1. First thoughts on an electronic European order for payment procedure Bartosz Sujecki, Molengraaff Instituut, University of Utrecht, Netherlands 5 th eJustice Dialogue 23 rd august 2005 Saarbrücken, Germany

2. 23rd august 20055th eJustice Dialoge, Saarbrücken2 Topics Definition of an order for payment procedure Goals for the European order for payment procedure European legal competence Proposal for a regulation introducing the European order for payment procedure Function of IT-technology within the European order for payment procedure Required changes within the proposed regulation Conclusions

3. 23rd august 20055th eJustice Dialoge, Saarbrücken3 Definition of an order for payment procedure Upon application Court or other authority Takes a decision ex parte Decision is served on the defendant with The instruction to abide by the order or to contest the claim within a certain time limit If there is no reaction, the order acquires enforceability If there is a defence, the case is transferred to the ordinary proceedings “inversion du contentiuex”

4. 23rd august 20055th eJustice Dialoge, Saarbrücken4 Goals of a European order for payment procedure Improvement of the access to justice Relief of the workload within the courts

5. 23rd august 20055th eJustice Dialoge, Saarbrücken5 European legislative powers –art. 61 (c) in combination with art. 65 (c) EC Judicial cooperation in civil matters having cross-border implications in so far as necessary for the proper functioning of the internal market; Elimination of obstacles to the good functioning of civil proceedings; Subsidiarity and proportionality –“Problems” with this legal competence Scope of an European procedure Introducing an electronic procedure –Financial burdens –Changes within the judicial organization required –BUT: stimulation of the electronic processing

6. 23rd august 20055th eJustice Dialoge, Saarbrücken6 Proposal COM (2004) 173 fin. Applicability International jurisdiction Application for a European order for payment Run of the procedure Opposition by the defendant

7. 23rd august 20055th eJustice Dialoge, Saarbrücken7 Applicability Civil and commercial matters Uncontested pecuniary claims For a specific amount At the time of application have fallen due Independent of their origin –Contractual –Non - contractual

8. 23rd august 20055th eJustice Dialoge, Saarbrücken8 International jurisdiction According to the Reg. 44/2001 General rule here according to art. 2 para 1 But exceptions are allowed Duty to state the reasons for an exception of the general rule No further rules on jurisdiction

9. 23rd august 20055th eJustice Dialoge, Saarbrücken9 Application for a European order for payment, art. 3 –Standardized form Personal information on the parties Name and address of the court Claim Demanded interest rate and the time period Cause of action and a short description of the circumstances invoked Brief description of at least one means of evidence Signature –Manually –Electronic according to art. 2 para 2 of el. Signature Dir.

10. 23rd august 20055th eJustice Dialoge, Saarbrücken10 Run of the procedure I Scrutiny has to cover but cannot go beyond (art. 4 para 1) »Scope of application »Formal requirements for the application European payment notification, art. 6 »Not an executorial title, but only a notification (“two-step”) »Standardized form »Notification of the defendant to pay the claimed amount or to submit a statement of defence within a time period of three weeks »Information of the defendant that the court has not examined the justification of the claim and the legal consequences of a failure to act

11. 23rd august 20055th eJustice Dialoge, Saarbrücken11 Run of the procedure II The period of three weeks for contesting the claim begins with the service of the payment notification The service of the payment notification is governed either by internal rules or the Reg. 1348/2000 In absence of a reaction by the defendant within the time limit the court shall deliver a European order for payment Enforceability of the European order without the condition of the provision of security Enforceability is governed by the law of the MS In case of cross-border enforcement the rules of the Reg. 805/2004 on the European Enforcement Order or of the Reg. 44/2001 apply

12. 23rd august 20055th eJustice Dialoge, Saarbrücken12 Opposition by the defendant I Statement of defense against the payment notification, art. 7 –Standard or own formulated response –Where the claim is contested in whole or in part –Signature »Manually »Electronic according to art. 2 para 2 of el. Signature Dir Opposition to the European order for payment

13. 23rd august 20055th eJustice Dialoge, Saarbrücken13 Opposition by the defendant II Extraordinary remedy, art. 11 para 4 –The order for payment was served by a method without proof of receipt by the defendant personally, and –Service was not effected in sufficient time or in such a way as to enable him to arrange for his defense without any fault on his part –or –The debtor was prevented from objecting to the claim by reason of force majure, or due to extraordinary circumstances without any fault on his part

14. 23rd august 20055th eJustice Dialoge, Saarbrücken14 Function of IT-technology within the European order for payment procedure Supportive function (Austria) –El. communication between the court and the parties –Periods are monitored electronically –But: the final decision remains in the hands of the human being –Question: How detailed is such an scrutiny?

15. 23rd august 20055th eJustice Dialoge, Saarbrücken15 Function of IT-technology within the European order for payment procedure Supportive and Examining function (Germany) –Computerized scrutiny of the applications –No examination of the justification of the claim Reason –Function of the examination within the Mahnverfahren Is there a dispute?!

16. 23rd august 20055th eJustice Dialoge, Saarbrücken16 Function of IT-technology within the European order for payment procedure European order for payment procedure Technology not only supportive but as well examining function Consequences: –No examination of the justification of the claim possible –But: this examination is also under conventional circumstances difficult »Description of the facts »Evidence »Problems of languages!

17. 23rd august 20055th eJustice Dialoge, Saarbrücken17 Requirements for the use of IT Standardized procedure No valuing examination possible Content of the applications must be limited to the essential information

18. 23rd august 20055th eJustice Dialoge, Saarbrücken18 Needful changes within the proposal Applicability Rules on jurisdiction Application for a European order for payment Rules on service

19. 23rd august 20055th eJustice Dialoge, Saarbrücken19 Applicability Introduction of exceptions –Pecuniary claims that are dependent on a consideration or where the consideration has not been preformed yet –Pecuniary claims with disproportional interest rates or with disproportional out of court costs

20. 23rd august 20055th eJustice Dialoge, Saarbrücken20 Rules on international jurisdiction Problems with the rules on jurisdiction according to Reg. 44/2001 »Basis is natural forum »BUT: exceptions are allowed »Difference between the jurisdiction in contractual matters and tort matters »Result: electronic scrutiny is not possible Therefore! exclusive jurisdiction in the MS where the defendant hat his domicile »Better accessible, even though in another MS »Better protection of the defendant »No cross border service and execution necessary

21. 23rd august 20055th eJustice Dialoge, Saarbrücken21 Rules on jurisdiction –Creation of a central court –Better access –Limited investment costs for IT –Persons being in charge within the European order for payment procedure? –Clerks of the court –Only in the way there is a effective relief of the workload within the courts –BUT: There is not a common education within the EU

22. 23rd august 20055th eJustice Dialoge, Saarbrücken22 Application for a European order for payment Problems with the proposal Description of evidence and of the circumstances Individualization of the claim sufficient Application Conventional Electronic –Via fax –E-mail –Interactive form

23. 23rd august 20055th eJustice Dialoge, Saarbrücken23 Rules on service –Problem: No common rules on service –Too many differences within the MS »UK via Royal mail »NL only via bailiff –Effects on the procedure »Cost »Time –Unified rules on service necessary –Higher legal certainty –But the rules should be simple –Registered mail

24. 23rd august 20055th eJustice Dialoge, Saarbrücken24 Conclusion –Introduction of the European order for payment procedure is basically preferable –BUT: the procedure should lead to a real relief of the workload within the courts and should be fast –THEREFORE: The use of IT is necessary –The European order for payment procedure should stimulate and not hinder the use of IT

25. Thank You for Your attention! Bartosz Sujecki Molengraaff Instituut University of Utrecht Nobelstraat 2a 3512 EN Utrecht, Netherlands Tel.: +31 30 253 7254 Fax: +31 30 253 7203 E-Mail: B.Sujecki@law.uu.nlB.Sujecki@law.uu.nl