The Role of the Judicial Officer in the Correct Functioning of Economy
The conference was held in the main amphitheatre of the University of Lodz in the presence of over 150 participants. The UIHJ took part for the third consecutive time in this large scale event both at scientific and media levels. The UIHJ was represented by its president, Leo Netten, and its first secretary, Mathieu Chardon.
The President of the Regional Council judicial officers Lodz, Andrzej Ritmann, welcomed the participants. He referred to the new Law on enforcement currently been voted before the Polish Parliament. He regretted the poor image of the judicial officer reflected in the media and insisted that without enforcement of justice, there simply is no Rule of Law.
Rafal Fronczek, president of the National Council of Judicial Officers of Poland, took the floor to remind that the Lodz Conference aimed to help develop a positive image of the profession of judicial officer in Poland. He pointed out that for 80 % of companies, payment delays are one of the reasons for the current crisis. According to studies conducted at European level, 35% of companies cannot pay their debts in due time. In this context, "judicial officers play a very important role in the proper functioning of economy" he said. Then Rafal Fronczek discussed the various proposals made by the National Council of the Judicial Officers of Poland in the context of the new law, particularly regarding debt collection and statements of facts, two activities carried out by judicial officers in many countries, and mentioned in the guidelines of the CEPEJ of 17 December 2009 on enforcement and the profession of enforcement agent.
Reducing Payment Delays
Following him, the President Netten delivered a speech reproduced hereafter. “It is with a renewed pleasure that I meet you for the third consecutive year now in this beautiful city of Lodz to attend your scientific works. I would like to thank in this regard the President of the Regional Chamber of the judicial officers of the Lodz region, Andrzej Ritmann for the constancy of his invitations and for the quality of his welcome. I am actually starting to feel home among you.
Like in the previous seminars ("The judicial officer in a harmonized Europe" in 2011 and "Eviction and Human Rights" in 2012), the theme you have chosen this year, "Court Enforcement versus economy in crisis" is particularly relevant. It deals with an issue which is on every lip. Everyone tries to stem the global crisis we are facing and to revive an ill economy. It is a necessary ambition.
As president of an international organization, my first goal is to ensure that the judicial officer profession I represent globally can perpetuate itself and grow. But the search for that one goal would be sterile if it was not backed on to another, less corporatist, but more ambitious, more useful. What is the role of the judicial officer in the world? What role should be met to enable him to fully carry out his mission that is to be at the service of justice, citizens and businesses? It is in answering these questions, and not in focusing on purely mercantile considerations, that the profession of judicial officer can build its future.
For many years now, the UIHJ looks on how the profession can contribute at its level, to solve the economic crisis, this curse we are more glued in with each passing day. Indeed, we believe that the judicial officer can act as a lever to fight economic crisis. We are not alone in thinking this. You have requested from me a short speech. I will not engage in long developments. Besides the themes I will mention will undoubtedly be developed later in detail by the speakers.
Let me give you a few examples, starting with debt collection. According to studies at European level, late payment in commercial transactions concerns each year more than 300 billion euros.
These delays result:
- First in slowing down economy;
- Second in creating poverty and vulnerability;
- And third, driving economic crisis further in its downward spiral.
How to limit late payments? At European level, there is the European Directive 2011/7 of 16 February 2011 on combating late payments in commercial transactions. It replaces the previous Directive of 29 June 2000. According to Article 1 of the Directive, combat against late payment should “ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular SMEs". What is it exactly about? This is primarily to allow the creditor to charge interest in case of late payment. To promote this directive, the European Union is organizing an awareness campaign on late payment. A seminar was held in Paris for this purpose a few days ago, on 17 October.
At his level, how can the judicial officer combat late payments? Point 34 of the Guidelines of the CEPEJ of 17 December 2009 on enforcement provides that the judicial officers should carry out secondary activities along with their main activities. Debt collection is one of these secondary activities. In my country, the Netherlands, judicial officers have shown their effectiveness in this area. My profession holds more than 60 % of the debt recovery market. Why? For three reasons. The first reason is related to the status of the judicial officer. The judicial officer profession is regulated. In carrying out his activities, the judicial officer is strictly regulated and controlled. It is a sign of trust for litigants. The second reason is that the judicial officer is a lawyer with a training level equivalent to that of a judge or lawyer. It is a guarantee of professionalism for litigants. The third reason is that the judicial officer is the only professional who can handle debt collection since the birth of the contract until the enforcement of the judgment which has been obtained on the basis of this contract.
In my country, as soon as there is a delay in payment, the judicial officer is indeed the only one who can in turn send reminders to the debtor, set up a payment schedule with him, take him to court to get a judgment, represent the creditor in court, and then enforce the judgment obtained. It is a guarantee of efficiency for litigants. I would add that all these activities carried out by the Dutch judicial officer are mentioned in the guidelines of the CEPEJ. This is perfectly consistent. For all the studies show: combat against late payments is a race against time. The quicker we act, the better the chances of collecting the debt. The later we act, the less likely we are to collect the debt. It is that simple. This is actually how in the field of debt collection, the judicial officer fights effectively against late payment and therefore against the crisis. That is why it is essential that judicial officers are entitled to carry out debt collection as part of their daily activities.
Late payments are also the main reason why a creditor will apply to court for a judgment against his debtor. Again, the role of the judicial officer is essential. It is he who will enforce the court decision. This requires that the State make available all legal means to enable him to quickly accomplish his mission. Again, time is a critical factor.
The CEPEJ Guidelines specify the means. According to item 6: "For the rule of law to be maintained and for court users to have confidence in the court system, there needs to be effective but fair enforcement processes". Point 33 recommends that enforcement agents have “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.” As regards information about the debtor's assets, paragraph 40 provides that “member states should allow them speedy and preferably direct access to information on the defendant's assets”. On the autonomy of the judicial officer, paragraph 67 states that "Member states are encouraged in particular to take measures to ease the procedural enforcement framework to give enforcement agents the necessary autonomy to choose for themselves, without prior authorisation, the procedural steps that are the most appropriate for the case in question".
Finally, on the allocation of costs of enforcement, the CEPEJ enacts the line to follow, in paragraph 60: "Enforcement fees should be borne by defendants, where he or she is solvent, together with the possibility of a performance fee borne by the claimant. Where the defendant is insolvent, the enforcement fees should be paid by the claimant".
You see, there is only one way to ensure that the enforcement agent fully complies with the requirements of the European Convention on Human Rights and that a State is not sanctioned by the European Court Human rights: the CEPEJ guidelines on 17 December 2009 on Enforcement should be fully implemented. I also remind you that these guidelines were adopted unanimously by the Committee of Ministers of the 47 Council of Europe member states, and therefore by Poland.
To conclude, the judicial officer is a weapon against the economic crisis. The state should fulfil its role: to give judicial officers ways to use this weapon. This means:
- Activities with are extensive and compatible with the status of the judicial officer;
- Direct access to information concerning the debtor's assets in the context of the enforcement of judgments;
- A monopoly of the judicial officer of all enforcement actions;
- Autonomy of the judicial officer in carrying out enforcement with the assistance of the authorities when needed;
- And an appropriate tariff taking into account the work carried out by the judicial officer in the framework of his mission.
Now you have to ask yourself one question: does Poland comply with all these requirements?
Thank you.
France does not Fully Meet the Criteria of the CEPEJ Guidelines on Enforcement
Following him, Mathieu Chardon presented the enforcement of court decisions in France. During his presentation, the first secretary of the UIHJ mentioned the monopoly and non-monopoly activities of the French judicial officer, noting that this professional was carrying out most all of the activities mentioned in the guidelines the CEPEJ, with the exception of a few areas. In terms of attachment of earnings, the procedure is entirely conducted by the court. In terms of attachment on immovable, the judicial officer seizes the property while the subsequent proceedings resulting in the sale of the building is under the direction of the judge. "In this, France does not comply with the criteria of the CEPEJ Guidelines" stated the first secretary of the UIHJ. He concluded by stating that "the enforcement of court decisions in France is made more difficult because of the economic crisis we are facing. The judicial officer has to deal with debtors placed in difficult financial and personal situations. To fulfil his mission, he must daily show firmness but also patience and humanity. The enforcement of court decisions in France indeed reflects this delicate balance".
Then Zbigniew Rau, professor at the Faculty of Lodz, Director of the Alexis de Tocqueville Research Center, developed the theme of the ethos of the profession of enforcement agent facing crisis. Anna Baranska, professor at the University of Lodz, discussed in turn the enforcement of court decisions as an effective tool for economic stability. Finally, Robert Damski, responsible for relations with the press of the National Council of Judicial Officers of Poland referred to the often difficult relations between the Polish judicial and media. Many questions were raised by participants from all horizons, judges, lawyers, academics, representatives of associations, journalists, students, entrepreneurs and individuals. As in previous years, the perfect organization of the conference in Lodz should be acknowledged, which at the end of its fourth edition, has proved its usefulness, and foresees its perenniality.
