10 Jul 2015

Regulation 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims: presentation

What is the goal of the Regulation :
 
The Regulation creates a European enforcement order for claims which are uncontested by debtors.
 
The European enforcement order is a certificate which enables judgments, court settlements and authentic instruments on uncontested claims to be recognised and enforced automatically in another Member State, without any intermediate proceedings.
 
What is the scope of the Regulation :
 
The Regulation applies in civil and commercial matters.
 
It does not, in particular, cover revenue, customs or administrative matters.
 
It is applicable in all Member States with the exception of Denmark.
 
What is an uncontested claims ?
 
A claim shall be regarded as uncontested if:
 
  • the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings; or
 
  • the debtor has never objected to it in the course of the court proceedings; or
 
  • the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings; or
 
  • the debtor has expressly agreed to it in an authentic instrument.
What are the conditions to obtain the European Enforcement Order:
 
In order for a judgment on an uncontested claim to be certified as a European Enforcement Order, the court proceedings in the Member State of origin must meet certain procedural requirements.
 
Therefore, only the document service methods listed in the Regulation are allowed if the judgment is to be certified as a European enforcement order.
 
Furthermore, the document instituting proceedings must give details of:
 
  • the claim (personal details of parties, amount of the claim, whether or not interest is incurred and for what period, etc.);
 
  • the procedural arrangements required for contesting the claim (deadline for contesting the claim, consequences of failing to object, etc.).
 
What I have to do to obtain the European Enforcement Order:
 
A judgment on an uncontested claim is certified as a European enforcement order by the Member State who delivered the judgment.
 
Certification is carried out by means of the standard form.
 
What are the effects of the European Enforcement Order:
 
A judgment which has been certified as a European Enforcement Order in the Member State of origin shall be recognised and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition.
 
Therefore, a judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement.
 
Under no circumstances may the judgment or its certification as a European Enforcement Order be reviewed as to their substance in the Member State of enforcement.
 
Once I have an European Enforcement Order, what I have to do ?
 
The law to be applied to the enforcement procedure is that of the Member State where enforcement of the judgment is requested.
 
The creditor must supply the authorities responsible for enforcement with:
  • a copy of the judgment;
  • a copy of the European enforcement order certificate;
  • where necessary, a transcription of the European enforcement order certificate or a translation thereof into the official language of the Member State of enforcement or into another language accepted by the Member State of enforcement.
No security, bond or deposit can be required of creditors on the ground either that they are foreign nationals or are not domiciled or resident in the Member State of enforcement.
 
The competent court in the enforcing Member State may, subject to certain conditions, refuse to enforce a judgment if it is irreconcilable with an earlier judgment given in any Member State or in a third country.

 
In certain cases, it can also stay or limit enforcement:
 
Where the debtor has:
  • challenged a judgment certified as a European Enforcement Order, or
  • applied for the rectification or withdrawal of a European Enforcement Order certificate
The competent court or authority in the Member State of enforcement may, upon application by the debtor:
  • limit the enforcement proceedings to protective measures; or
  • make enforcement conditional on the provision of such security as it shall determine; or
  • under exceptional circumstances, stay the enforcement proceedings.

Nasser Merabet
Lawyer
avocat@nmerabet.fr