Background
Until
an EU Regulation came into force on Friday, such a foreign judgment
was not automatically enforceable in another Member State. Instead,
the judgment creditor had to enter a special procedure called
exequatur, which allows the foreign judgment to be enforced.
In addition, the exequatur decision is submitted to the
possibility of appeal, which is a contradiction in terms in regard
to uncontested claims because, if a debtor has not contested the
debt during the original proceedings, it is nonsense to permit this
at the moment of the enforcement abroad.
Consequently, if exequatur must be obtained, enforcement of
judgments abroad is delayed and it is costly and often rendered
ineffective. As a result, the European Commission points out that
the exequatur procedure, especially in the specific field of
uncontested claims, obstructs the free movement of judgments and
renders decisions subject to a territorial notion of justice that
is inappropriate in a Community environment.
In November 2000, the Council began to implement a principle of
mutual recognition of decisions in civil and commercial matters.
The aim was to abolish all procedures needed for the enforceability
of judgments in civil and commercial matters. It was decided to
proceed gradually, beginning with a very specific pilot project –
the abolition of the exequatur procedure for uncontested claims,
which represents the largest category of claims.
That led to the Regulation of 2004 which created a European
enforcement order for uncontested claims. The Regulation entered
into force on 25th October 2005.
The new Regulation
It dispenses, under certain conditions, with all intermediary
measures in the Member State in which enforcement is sought in
cases where the defendant has not contested the nature or extent of
a debt.
The conditions for abolishing exequatur mainly concern the
service of documents in the case of judgments by default.
Abolishing exequatur will enable creditors to obtain quick and
efficient enforcement abroad without involving the courts in the
Member State where enforcement is applied for through
time-consuming and costly formalities.
The Regulation applies to “uncontested claims” so that in order
for a creditor to obtain a European Enforcement Order the defendant
either has to agree to the debt in court
proceedings or not appear in court when the claim
is heard.
A judgment that has been certified as a European Enforcement
Order by the court of origin should, for enforcement purposes, be
treated as if it had been delivered by a court in the Member State
in which enforcement is sought.
Obviously, the abolition of any checks in the Member State of
enforcement is inextricably linked to and dependent upon the
existence of a sufficient guarantee of observance of the rights of
the defence. For this reason, the Regulation has established
minimum standards for the proceedings leading to the judgment in
order to ensure that the debtor is informed about the court action
against him, the requirements for his active participation in the
proceedings to contest the claim and the consequences of his
non-participation in sufficient time and in such a way as to enable
him to arrange for his defence.
The Regulation does not imply an obligation for the Member
States to adapt their national legislation to the minimum
procedural standards set out herein. It provides an incentive to
that end by making available a more efficient and rapid
enforceability of judgments in other Member States only if those
minimum standards are met.
The European Enforcement Order is a voluntary procedure: the
creditor may also choose the system of recognition and enforcement
under the so-called Brussels I Regulation or other Community
instruments.
