Problematical provisions of the regulation creating a european order for payment procedure


                                          Petra Bohůnová

                                Masaryk University, Faculty of Law


                                        Naděžda Rozehnalová



Keywords

Regulation creating a European order for payment procedure, international jurisdiction, application
for a European order for payment, form – procedure, remedy


The European legislator decided to create a legal framework for creditors in the European Union for
swifter, more efficient and cheaper recovery of probably uncontested pecuniary claims in
cross-border cases. The clue shall be a transnationalized “European procedure” with a subsidiary
application of national laws, the result of which is a directly enforceable European order for
payment. The legal base for it is the Regulation (EC) No. 1896/2006 of the European Parliament and
of the Council of 12 December 2006 creating a European order for payment procedure (hereinafter
referred to as „regulation on European order for payment“). The procedure shall relieve also the
courts because applications do not have to be necessarily examined by a judge. Although the
regulation enters in force only on December, 12 2008, some provisions can be already identified,
which will probably cause troubles by their application. The focus of this paper is to analyze
these provisions and to suggest some better solutions.


Concerning the determination of international jurisdiction, article 6 refers to the regulation
Brussels I. However, this does not seem to be suitable for the European payment order procedure.
Generally, the defendant has to be sued in the state of his domicile but beside that, the
regulation contains many other special and exclusive jurisdiction rules, legal regulation of which
is in some cases quite complicated. For that reason, the solution contained in the regulation on
European order for payment contravenes the intention to simplify the recovery of probably
uncontested claims. The fulfilment of the conditions, that establish the international jurisdiction
of a particular court, will have to be examined by a judge and not by an e.g. clerk of court. It
would be more convenient to introduce an exclusive international jurisdiction of the courts of a
member state where the defendant is domiciled.


It is questionable, whether exclusion of the claims arising from non-contractual obligations was
necessary as not pecuniary claims or claims on an unspecified amount are not covered by the
regulation. Moreover, the question whether there is a non-contractual obligation or not is
qualified differently in various legal orders which will cause dissension in application of the
regulation.


The procedure is based on seven forms intended for its particular phases which are to be completed
by simple ticking off. The forms are translated in all official languages of the EU so that a
person responsible for the European order for payment procedure can only compare the form in the
official language of the court with the form in the official language of the claimant or defendant.
The thing is that some data have to be formulated in whole sentences. That is why the problems with
translation can not be completely eliminated which might discourage the creditors.


From the text of the regulation it is not clear, in which way the court has to examine the
application for the European order of payment. Should it be a formal examination or a material one?
Apparently, there is no clear answer to the question in the regulation. I hold the opinion that a
formal examination of the application is sufficient. The material examination gives more certainty
at law indeed; however, it contradicts the aim of the accelerated procedure. On the other hand, the
interpretation in favour of the formal examination should be amended at least with the possibility
to reject the application if it is clearly unfounded. This solution would permit firstly, that the
examination could be made by e.g. clerks of court and secondly, that the examination could be fully
automated. In this way, the procedure would be more effective and the courts would be relieved.


In accordance with article 7 section 3, a claimant shall face penalties under national law if he
declares untrue information. However, the provision does not stipulate, whether they shall be
criminal, civil or administrative sanctions? This will probably lead to a different application of
the regulation.


Concerning the lapse of time, there is no rule regulating the maintenance of the term, interrupting
the running of time or the beginning of a new term after the rejection of the application. With
regard to the aim of the unified transnational procedure, such a rule would be suitable as in the
current situation national legal rules will be applicable.


The legal regulation of the service of documents is the same as in the regulation creating a
European Enforcement Order despite of the wide criticism expressed by legal experts. Moreover, a
situation is not regulated when the European order for payment is served in contradiction to the
rules for service of documents but the debtor lodges a statement of opposition though. Does that
mean that the European order for payment is completely invalid or can it be considered as a
beginning of a civil procedure?


After the lapse of the time for lodging a statement of opposition, the defendant is entitled to
apply for a review of the European order for payment before the competent court in the Member State
of origin if certain conditions are met. The trouble is firstly, that the provision contains too
many vague notions the courts will have to cope with. Furthermore, it does not explicitly state,
which remedy shall be lodged. Will it be possible to break the legal force of the European order
for payment? In this context, the remedy seems to be quite problematical as there is neither a time
restriction, nor a limitation of its use on particular cases stipulated by the regulation. Such a
rule does not bring much certainty at law either.


To sum it up, the regulation on European order for payment procedure has many negatives. On the
other hand, it has to be reflected, that it is the first attempt to establish a really
transnational European procedure. However, the real effects in the practice will be evident after
the regulation enters in force.


Kontaktní údaje na autora – e-mail: pbohunova@volny.cz