Report on the Second Conference entitled “The Judicial Officer in the European Union” (Łódź, 14th October 2011)

 

The Second Conference entitled “The Judicial Officer in the European Union” was held under the honorary patronage of the former Minister of Justice, Krzysztof Kwiatkowski, who delighted the guests by his presence at the meeting. The hosts invited many eminent guests to participate in the conference, including Leo Netten, President of the International Union of Judicial Officers (UIHJ), Mathieu Chardon, First Secretary of the UIHJ, Rafał Fronczek, President of the National Council of Judicial Officers (KRK); judges of appeal of the city of Łódź with Dr. Michał Kłos, President of the Court of Appeal of Łódź and representatives of other legal professions: notaries public, attorneys and legal advisors.
The main goal of the cycle is to present the role of judicial officers and the importance of court enforcement for the proper functioning of the state, and consequently for the legal safety of citizens. This year's Conference, organized during the Polish Presidency in the Council of the European Union, became an opportunity to present the problematic aspects of court enforcement in the scope of European law and to improve legal awareness of the citizens.
Leo Netten, President of the UIHJ, made a speech about the objectives and activities of the UIHJ, highlighting that the UIHJ is a member of the Economic and Social Council of the United Nations, that it is actively involved in the work of the Hague Conference on Private International Law, and is a permanent observer member of the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe and, for this reason, took an active part in the development of its Guidelines of 17th December 2009 on the execution of legal decisions. The UIHJ has been also involved in establishing the European Judicial Network in civil and commercial matters, which is reflected in its commitment to the e-Justice project. The UIHJ is also one of the founding members of the European Law Institute. President Netten then turned his attention to the CEPEJ Guide Lines concerning the status and training of the judicial officer and the associated activities. The speaker stated that a high quality of training of the judicial officers as officers is necessary to ensure the equal treatment of all creditors and, at the same time, to guarantee the rights of debtors. In this respect, focusing on the role and importance of the judicial officers, President Netten said: “As an element of legal certainty, a judicial officer intervenes to protect litigants.
Legal security is the right to a judge.
The right to a judge is the right to a judicial decision.
The right to a judicial decision is the right to its enforcement.
The right to its enforcement is the right to a judicial officer.
The State must determine the distribution of professionals across the country by ensuring proximity to defendants because the judicial officer is an officer of justice, that is to say, a lawyer whose mission is intended to facilitate the conduct of the trial and ensure the proper administration of justice by making the link between the litigant and the judge with full independence and impartiality, thus ensuring a good image of justice”.
President Netten also presented new areas of activity of judicial officers related to the CEPEJ Guide Lines, recalling its Article 33 which calls the members states to give judicial officers (enforcement agents) the sole competence for enforcement of judicial decisions and other enforceable titles or documents, and implementation of all the enforcement procedures provided for by the law of the state in which they operate, and Article 34 in which it is recommended to authorize judicial officers to perform broader activities tending to safeguard and secure recognition of parties' rights and aimed at expediting the judicial process or reducing the workload of the courts. In this respect President Netten said:
“The liberal judicial officer is a reassuring authority in terms of performance and service. There is trust in his professionalism: trust from the judge, trust from the creditor, and trust from the debtor.
From this point of view, the liberal professional offers a guarantee. Indeed, his status as a public and ministerial officer assures unquestionable legitimacy. He becomes somehow the "eye" of the judge, his agent and though not hierarchically under his authority, he is still invested with authority as a kind of delegation that the judicial authority gives him to perform the tasks that justice, for various reasons, cannot complete.
Only legitimate to carry out his core activities that are enforcement of court decisions and service of documents he must, through appropriate training, provide "peripheral" services to the defendant as defined by Article 34 reproduced above.
The judicial officer must be a multi-field professional avoiding the fragmentation of activities in which the litigant loses both time and money. He is and shall always be an essential element in a state based on the rule of law”.

The next guest to take the floor was Krzysztof Kwiatkowski, the now former Minister of Justice of the Republic of Poland, who underlined that given the topic of the conference itself, its problematic aspects as well as the list of invited guests, including the presence of President of the UIHJ, the hosts deserved respect and credit. The speaker said that the topic of the Conference was particularly important because the Polish Minister of Justice chaired, due to the Polish Presidency, the meetings of the EU Council of Ministers of Justice. In this context the Minister highlighted a great importance of enforcement and judicial officers to the proper functioning of the European economy - judicial officers, who are “responsible for the economic “bloodstream””, particularly in the era of a widespread economic crisis in Europe. Their role is invaluable in the context of the stability of economic turnover, the development of small and medium-sized enterprises which face the problem of payment gridlocks. In this respect the Minister informed the guests about the projected changes to the civil procedure, including changes in court enforcement aimed at reducing the formalism of court proceedings. The Minister expressed his deep interest in the institution of statement of facts, whose model regulation and functioning are found in France.
Rafał Fronczek, President of the National Council of Judicial Officers (KRK), pointed to the fact that given the required qualification and high quality of training of judicial officer's trainees, the profession of judicial officer should be equal to other legal professions, which would allow the lifting of barriers between legal professions and boost interest in applying for the position of judicial officer, but also would contribute to the further improvement of the status of the judicial officer, which would in turn be beneficial to the image of the whole justice system. The President of the KRK pointed to the growing social understanding and approbation to the role of judicial officer in ensuring economic turnover. As he said: “in no way can we talk about an economically powerful country with a healthy entrepreneurship or about foreign investors' confidence in Polish market without strong and proper enforcement”. The speaker, referring to President Netten's speech, pointed to the burning need to adjust the scope of competence of the Polish judicial officers to European regulations. He mentioned service of documents, the right to draft the statements of facts, but also the possibility to conduct negotiations and the possibility to enforce on the basis of amicable settlement concluded between the creditor and debtor in front of the judicial officer. The President of the National Council of Judicial Officers then laid down the commitment of the Polish judicial officers to the European Judicial Enforcement program, whose National Council of Judicial Officers is a partner. This project is run by the European Commission, it is co-financed by the EU and it is realized within the framework of a broader e-Justice program and its objective is to inform the citizens of the EU about court enforcement in other member states. Therefore it facilitates debt collection within the EU, but most of all, it constitutes a form of cooperation between judicial officers in Europe.
In the introductory speech Dr. Tomasz Banach, judicial officer authorized to organize the Conference, pointed to the importance of the tackled issues in the context of an advanced process of unification of EU law. In this respect, the speaker underlined the role of contrastive studies which, when put together and once the national laws of member states compared, enable the improvement of every legal system. As Tomasz Banach said: “The advanced process of unification and harmonization of law in the European Union is a well-known fact. It seems that this process should not mean the removal or elimination of tried, domestic solutions, but rather their improvement by a sensible introduction of desirable legal regulation into the national systems. In order to preserve values originating from national legal cultures or, in other words, from legal identity on the one hand and to adapt them to the unification process on the other, one can benefit from contrastive studies, which compare and put together national laws and thus enable the creation of an ius commune of modern times. Today's Conference serves this great goal, because the unification process applies to enforcement law as well, which is the area directly connected to the work of the judicial officer”.
During the Conference, four scientific lectures were given. The first one, entitled “Tocquevillian reflections on Europe” was given by Prof. Zbigniew Rau. The speaker presented, in a very interesting way, the ideas of the great, 19th-century French philosopher. Given the current EU economic crisis, those ideas can constitute the basis of an analysis of moral and political condition of the United Europe. Analyzing 19th-century reflections of Alexis de Tocqueville and putting them together with the contemporary EU integration process, Prof. Rau listed three important elements:
•    Mass democracy as the basis of the European integration; according to Tocqueville, individualism is what dominates a democratic system, because there is no social group to which a man could permanently belong. Deprived of social bonds, the man obviously starts to focus on material well-being which becomes the axis of his actions and intentions. Such phenomena breed, in turn, an ethical universalism, but also an economic-one, which has always been inherent to the process of European integration.
•    The category of new despotism as the consequence of mass democracy and political relations in the countries of integrating Europe. The above-mentioned individualism involves alienation of a man from the public life. The void in this public sphere is then filled by the state, which takes over more and more disciplines of public activity and regulates new areas of human life, making members of the democratic society more and more dependent on it. This strong dependence of the citizen on the state is referred to by Tocqueville as “the new despotism”. The concept of the welfare state based on the economic ideas by John Maynard Keynes can be perceived as the despotic state of the 20th-century EU, where the state dominates the public sphere with its bureaucratic agendas which considerably limit the independence and the activity of its citizens. At the same time Prof. Zbigniew Rau highlighted that the creation of welfare state was complementary to the process of European integration.
•    The concept of civic engagement as the condition of rebirth of integration of the European project; according to Tocqueville it is possible to combat the “new despotism” by gradually introducing new solutions based on the idea of freedom, like freedom of assembly. Adherence to such solutions allows individuals to participate in public life and orders them to free themselves from dependence on their small, egoistic needs. As Prof. Rau said: “Tocqueville admits that this process, in order to succeed, must be embedded in a favorable moral and political culture, and particularly in such culture, whose carrier is tradition and custom, an atmosphere of spirituality and of national ethos. Overcoming the isolation, individualism and powerlessness of individuals active in associations, which fill the public sphere with the breadth of their undertakings means superseding the state from the sphere by taking over many of its initiatives. For Tocqueville this is the victory of freedom over the new despotism”.
According to Prof. Rau the present economic crisis in the EU can also be analyzed from the angle of ideas presented by Tocqueville. But, as the speaker noted, despite the common opinion about the need to cut budget deficits of European countries and dark scenarios drawn by economists “the Union can't hear a reverberating voice of Europeans joint in organizations of civil society; they don't cry for reforms, they don't debate the responsibility towards present and future generations, and automatically, about the need of austerity today, in order to become rich tomorrow”.

The second lecture, entitled “Court enforcement in the context of EU law” was given by Prof. Andrzej Marciniak, who presented the profile of Polish court enforcement on the basis on foreign judicial rulings and other orders in relations between EU member states, introduced into the legal order in vigor by right of four Regulations of the European Parliament and the Council, which are:
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 Creating a European Enforcement Order for Uncontested Claims
- Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 Creating a European Order for Payment Procedure
- Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 Establishing a European Small Claims Procedure
- Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

The speaker noted that those Regulations were based on three basic assumptions:
The first one consists in the adoption of the system of automatic enforceability of enforcement orders presented in those Regulations in a member state. It is reflected in those elements of regulations, according to which the orders listed in them are accepted and enforced in other member states without the necessity to declare their enforceability and without the possibility to object to their recognition or enforceability. This system replaces current models of regulation of enforceability of foreign enforcement which have taken the form of proceedings for declaration of their enforceability, conducted in the country of enforcement, the essence of which is to give consent, in this country, to the enforcement of the order issued in the foreign country. This means that in the country of enforcement, the foreign order is not controlled for the prerequisite of recognition of this order or granting it an exequatur - a legal document issued by a state authority which allows the foreign decision to be enforced in this state. According to a typical and traditional model, an exequatur is granted by a Polish court only via specific proceedings regulated in Articles 1150-1153 of the Code of Civil Procedure by granting an enforcement clause to the foreign ruling. As a result, the foreign ruling becomes an enforcement order in Poland and constitutes the basis for court enforcement. The analyzed regulations have an absolute priority and constitute lex specialis in relation to the above-mentioned regulations of the Code of Civil Procedure.
According to the second assumption, the enforcement orders issued in a member state and listed in those regulations can be enforced in other member states on the same conditions as the orders issued in countries (member states) of enforcement.
According to the third assumption, which is linked to the second one, execution procedure (proceedings) or enforcement proceedings depend on the law of the country (member state) of enforcement, taking into account the specific conditions stipulated in the regulations.
Prior to the presentation of every European enforcement order resulting from the above-mentioned regulations, Prof. Marciniak reminded the audience that the Polish legislator has clearly opted for the solution, according to which the European enforcement orders from member states constitute enforcement orders in Poland as well and become enforceable upon granting them the enforcement clause. The speaker noted that “from the point of view of the functioning of enforcement bodies, “declaration of enforceability" proceedings play a positive role in this case”. They exonerate those bodies from evaluating whether the “foreign” enforcement order presented by the creditor is congruent with the EU regulations which create the European enforcement orders or whether it is acceptable to levy enforcement on their basis. Enforcement clause decides in this respect about the admissibility of enforcement”.

The next lecture, entitled “A statement of facts (Constat d'huissier de justice) in the French system of court enforcement” was given by Mathieu Chardon, First Secretary of the UIHJ. It should be mentioned that this institution, based on French legislation, does not generate a large interest in Poland - judicial officers rarely perform statements of fact, there are merely a few examples. The functioning of this institution looks completely different in France, where the statement of fact is a widely used tool. Mathieu Chardon remarked at the beginning of his speech that a statement of facts consists in recording and reporting in writing of a situation, a fact personally witnessed by someone. When it is carried out by a judicial officer, the statement of facts will serve as legal, recognised, and sometimes binding evidence. At the same time the speaker underlined that the statement of fact falls under the scope of Article 34 of CEPEJ Guidelines and constitutes one of the activities of the judicial officers. Mathieu Chardon then presented the importance and the role of judicial officers in carrying out statements of facts, highlighting the importance of statement of facts as a mode of proof in lawsuits. Moreover, the statement of facts allows to avoid costly and time-consuming lawsuits when the statement of facts in carried out in the amicable phase. Issued by a judicial officer - an impartial, independent and a highly credible body - the statement of facts gains even more importance, which is confirmed by the speaker: “the French Minister of Justice, Rachida Dati, said in December 2007 that “In practise, the report you make serves as evidence. This comes from your thoroughness and professionalism. A statement of facts can be trusted. For all, it is fair evidence””. Mathieu Chardon also remarked that since the enactment of a law on 22 December 2010, statements of facts in France serve now as “evidence unless proven otherwise”. Next he presented two types of missions of the statement of facts: missions entrusted by the judge; and missions entrusted by natural or legal persons, saying that the vast majority of statements of facts are carried out on demand by the parties whether they are natural or legal persons. The speaker presented different types of statements of facts and the progress of operations while carrying out a statement of facts. It starts with setting the mission. Then comes the most important part: the writing of the report. The operation ends with the setting of the mission. In the conclusion, Mathieu Chardon said that the statement of facts carried out by a judicial officer is a major legal tool. It is efficient and thorough. Its purpose is to serve the parties as well as Justice. It ideally meets the requirements of the CEPEJ Guidelines on enforcement as it tends to “safeguard and secure recognition of parties' rights” and is “aimed at expediting the judicial process or reducing the workload of the courts”. In France, statements of facts are the best known activities of judicial officers.

The fourth lecture, entitled “The Influence of Insolvency Procedure in other EU member state on the Polish enforcement procedure” was given by Prof. Sławomir Cieślak. The speaker remarked that the objective of his lecture was to show that the two procedures mentioned in the title are integrated and, if possible, to determine the procedural consequences resulting from the “collision” of the foreign insolvency procedure with the Polish enforcement procedure, as well as to determine what procedural nullities should be applied by the Polish enforcement bodies in that case. Prof. Cieślak enumerated the sources of regulations of the discussed issue which are above all the norms of the International Insolvency Law (IIL), as well as the norms of Civil Procedural Law, which relate to the question of insolvency and constitute part of the IIL. The second source are the norms of the National Civil Procedural Law contained in the Law on Insolvency and Rehabilitation of the Code of Civil Procedure. The third source encloses the norms of the National Procedural Law of the EU state where the insolvency procedure has been launched. The speaker discussed then the influence of insolvency procedure in view of the criterion of place where the insolvency procedure has been launched as well as the criterion of entity against whom the insolvency has been declared in another EU member state. On the basis of those criteria, the speaker listed:
•    The influence of insolvency procedure launched in another EU state (except for Denmark) against a debtor who is not a credit institution, a foreign bank, a foreign insurance company or a foreign reinsurance company.
•    The influence of insolvency procedure launched in another EU state against a debtor who is a credit institution, a foreign bank, a foreign insurance company or a foreign reinsurance company.
•    The influence of insolvency procedure launched in Denmark against a debtor who is a credit institution, a foreign bank, a foreign insurance company or a foreign reinsurance company.
•    The influence of insolvency procedure launched Denmark against a debtor who is not a credit institution, a foreign bank, a foreign insurance company or a foreign reinsurance company.
Once the above-mentioned situations had been discussed, the speaker concluded: “While determining the influence of insolvency procedure launched in another EU state on the Polish enforcement procedure, one should, in the first place, find conflicting law rules which would enable to determine such law whose application would resolve the question. The basic norm in this respect is Art. 4, section 2, letter f in initio of the Regulation no 1346/2000 in which lex fori concursus has been foreseen as the law regulating the influence of insolvency procedure launched in another EU state on the Polish enforcement procedure. For the sake of assessment of this influence, Polish enforcement bodies must apply the law of the state, where insolvency procedure has been launched. The lex fori concursus principle is not applicable to the insolvency procedure launched in Denmark as well as to the insolvency procedure concerning an entity which is a credit institution, a foreign bank, a foreign insurance company or a foreign reinsurance company. In those cases the lex fori processus, so the provisions of the Law on Insolvency and Rehabilitation regulating the influence of recognition of the foreign insolvency procedure on the Polish enforcement procedure, should be applied. They are stipulated in Art. 146, section 1 and section 2 in conjunction with Art. 397, section 1, item 1 of the Law on Insolvency and Rehabilitation.
Broad problematic aspects of the Conference laid the ground for a vibrant and interesting discussion, during which some interesting questions emerged. Generally speaking the questions revolved around two crucial issues for Polish judicial officers: granting legal validity and validity as evidence to the statement of facts - as it is the case of the French system, which was presented with full competence by the First Secretary of the UIHJ, Mathieu Chardon, as well as the activity of the judicial officers in the amicable phase, so beneficial for the creditors (who can be paid earlier) and for the debtors (who can avoid high costs of lawsuits), but also for all the participants of the legal turnover (elimination of debt collection agencies operating on the brink of the law), which was presented in a very persuasive way by the President of the UIHJ, Leo Netten.
The discussion confirmed the need to organize such meetings, during which experiences, interesting remarks, but also inspiring disputes are exchanged.
Let us hope that the cycle of Conferences launched in the city of Łódź will continue, which will certainly contribute to the popularisation of the question of court enforcement in our country.

Dr Tomasz Banach, Judicial Officer of the District Court in Zgierz