first thoughts on an electronic european order for payment procedure bartosz sujecki, molengraaff...

First thoughts on an electronic European order for payment procedure

Bartosz Sujecki, Molengraaff Instituut, University of Utrecht, Netherlands

5th eJustice Dialogue

23rd august 2005

Saarbrücken, Germany

23rd august 2005 5th eJustice Dialoge, Saarbrücken 2

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


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”


Goals of a European order for payment procedure

• Improvement of the access to justice

• Relief of the workload within the courts


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


Proposal COM (2004) 173 fin.

• Applicability

• International jurisdiction

• Application for a European order for payment

• Run of the procedure

• Opposition by the defendant


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


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


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.


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


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


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


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


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?


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?!


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!


Requirements for the use of IT

• Standardized procedure

• No valuing examination possible

• Content of the applications must be limited to the essential information


Needful changes within the proposal

• Applicability

• Rules on jurisdiction

• Application for a European order for payment

• Rules on service


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


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


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


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


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


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

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: [email protected]

mailto:[email protected]






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