The cross-border enforcement of claims has, up until now, generally been extremely cost- and time-intensive, particularly in cases of undisputed claims where the creditor primarily seeks the rapid obtainment of an enforcement order (Vollstreckungstitel).
Through Regulation (EC) No 1896/2006 of 12 December 2006, which came into force starting in 2008, a European Order for Payment Procedure has now been introduced, with the aim of accelerating cross-border procedures while minimizing the procedural costs incurred.
At the same time, the free circulation of European Orders for Payment in the Member States (with the exception of Denmark) is enabled by the establishment of minimum standards. If these minimum standards are adhered to, the costs for recognition and enforcement in the enforcing Member State are eliminated.
1. Scope of the European Order for Payment Procedure
a) Covered by the Regulation
The Regulation is to be applied in cross-border legal cases in civil and commercial matters, without regard to the type of jurisdiction. A cross-border legal case within the meaning of the Regulation exists if at least one of the parties has their domicile or habitual residence in a different Member State than that of the court seised. The decisive time for this is the time of submission of the application for a European Order for Payment under this Regulation.
b) Not Covered by the Regulation
In contrast, the following are not covered by EC Regulation 1896/2006: tax and customs matters, administrative law matters, and the liability of the State for acts or omissions in the exercise of sovereign rights (acta iure imperii).
Furthermore, the following are also excluded from the scope of the Regulation:
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matrimonial property regimes, the field of succession law including the law of wills,
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bankruptcies, procedures related to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, and similar procedures,
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social security,
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claims arising from non-contractual obligations, unless these are the subject of an agreement between the parties or an acknowledgement of debt, or unless they relate to quantified debts arising from joint ownership of immovable property.
2. Implementation of the European Order for Payment Procedure
The judicial jurisdiction for the implementation of the European Order for Payment Procedure is determined by the applicable provisions of Community law, in particular EC Regulation 44/2001.
a) Application Submission
The application for a European Order for Payment must be submitted to the competent court using Form A provided for this purpose in the Annex to the Regulation (Download of the form: Application for a European Order for Payment). Pursuant to Art. 7 of Regulation 1896/2006, it must contain the following minimum particulars:
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the names and addresses of the parties to the proceedings and, where applicable, their representatives, and of the court with which the application is lodged;
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the amount of the claim, including the principal amount and, where applicable, interest, contractual penalties, and costs;
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in the case of claiming interest, the interest rate and the period for which interest is claimed, unless statutory interest is automatically added to the principal amount under the law of the Member State of origin;
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the subject matter of the dispute including a description of the facts underlying the principal claim and, where applicable, the claim for interest;
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a designation of the evidence relied on to substantiate the claim;
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the grounds for jurisdiction,
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the cross-border character of the case within the meaning of Article 3.
The court seised with the application shall examine the completeness of the particulars and examine whether the claim appears well-founded, meaning that it is not manifestly unfounded. It shall give the applicant the opportunity to complete or rectify the application, provided that the prerequisites referred to in the Article are not met and the claim is not manifestly unfounded or the application inadmissible. The rectification or completion must take place within a period set by the court.
b) Issuance of a European Order for Payment
If the prerequisites are met, the court shall issue the European Order for Payment within 30 days of the submission of the application, which is then served on the defendant. Any time granted to the applicant to rectify their application is not counted when calculating the 30-day period. The defendant is informed of the possibility of not paying the claim and lodging a Statement of Opposition against the Order.
c) Statement of Opposition
Pursuant to Art. 16 of EC Regulation 1896/2006, the defendant may lodge a Statement of Opposition within 30 days of the service of the European Order for Payment. If the Statement of Opposition is lodged in due time, the ordinary civil proceedings shall be opened before the competent courts of the Member State of origin, unless the applicant requests the termination of the procedure.
d) Enforcement
If no Statement of Opposition is lodged against the European Order for Payment, the court shall immediately declare it enforceable and send an enforceable copy to the applicant for the purpose of enforcement. In principle, the enforceable European Order for Payment is recognized and enforced in all other Member States without the need for exequatur proceedings for a declaration of enforceability.
It must, however, be noted that in some specifically listed exceptional cases (Art. 20, 22, 23 EC Regulation 1896/2006), a review of the European Order for Payment may take place, or its enforcement suspended, or even refused. Enforcement of the European Order for Payment shall, moreover, take place under the same conditions as a decision enforceable in the enforcing Member State (Art. 21 of the Regulation).
3. Costs of the European Order for Payment Procedure
The court fees for a European Order for Payment Procedure and for ordinary civil proceedings that follow the lodging of a Statement of Opposition against the European Order for Payment in a Member State may not in total be higher than the court fees for ordinary civil proceedings without a preceding European Order for Payment Procedure in that Member State (Art. 25 of the Regulation).
(Status: April 2010. All information is provided with reservations and without guarantee.)