1st IDJPEX Study Day in Brussels on 28 February 2008

The training of judicial officers and their staff has been for a long time in the middle of the concerns of the UIHJ. Globalization of the economic exchanges and that of the law - and consequently of civil and enforcement procedures - have made the enforcement professionals become aware that the rules they have to apply are more and more supranational. It also appeared that these professionals apprehended with difficulty these cross-border standards of the law. In particular they are confronted with practical situations that they have difficulty to solve, like those concerning the European instruments such as:

It is necessary to add to these texts those of the Council of Europe, the European Commission for the Efficiency of Justice (CEPEJ), the Hague Conference of Private International Law, the Organisation for the harmonization in Africa of the Business Law (Ohada), without forgetting the jurisprudence of the European Court of Human Rights, of the Court of Justice of the European Communities or the Common Court of Arbitration.

It is to answer these needs that the UIHJ has created the Institute of International Private Judicial Law and Enforcement Law (IDJPEX), with the co-operation for the National School of Procedure of Paris (ENP).

For its first trainings session, the IDJPEX chose for topics four European instruments and one international instrument: the two European Regulations and the Hague Convention of 15 November1965 on the service of documents, the European Enforcement Order and the European Order for Regulation Procedure. Three workshops were organised around professors at Law and expert judicial officers in the field of training.

Success was met. More than 300 fellow-members and their staff coming from 22 countries (Algeria, Germany, Belgium, Bulgaria, Cyprus, Congo, Czech Republic, France, Former Yugoslavian Republic of Macedonia, Greece, Hungary, Italy, Luxembourg, Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden, Switzerland and Thailand) followed with great assiduity the training which was given to them during the whole day.

 

In his welcoming short speech, Jacques Isnard, President of the UIHJ, was pleased with the massive presence of the fellow-members and thanked the speakers for their participation, in particular the three eminent professors at Law specialized in international civil procedures, Natalie Fricero, professor at the Law at the Faculty of Nice (France), Director of the Institute of Judicial Studies, Frédérique Ferrand, professor at Law at the University Jean Moulin Lyon III (France), Unidroit working group expert, and Jean-François van Drooghenbroeck, professor at Law at the Catholic University of Leuwen (Belgium), as well as Laurence Thébault, of the Hague Conference of Private International Law.

Being based on the fact that the knowledge of the Community legislation was very poor, not only within the profession but also of the various legal bodies in general, the president recalled that the Europe of Law would not be achieved only using its regulations and directives, but that it needed to open up to its professionals, academics, experts and practitioners. He regretted that the various regulations were most of the time established without taking account of the observations formulated by the professionals. “It is important to adapt by keeping hope. It is a question of trying to gather in the capital of Europe the judicial officers of the European Union during one training day. Success is beyond my hopes. It is even a historic day in many regards because we are more than three hundreds. I am pleased with the very strong presence of the fellow-members from Eastern and Central Europe as well as Greece and the Netherlands” he said. Jacques Isnard finally thanked Francis Guépin and Roland de Meerleer, members of the board of the UIHJ, for the material organisation of the day. The presidency of the day was entrusted to Francis Guépin.

 

The first workshop was on the topic of the new Regulation (EC) n°1393/2007 of the European Parliament and the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

The workshop was composed of Natalie Fricero, Rose Bruno (France), judicial officer, member of the UIHJ and ENP expert, Isabelle Bambust, lawyer at the National Chamber of the judicial officers of Belgium, and Jos Uitdehaag (Netherlands), judicial officer, first quaestor of the Committee of the UIHJ. It was placed under the chair of Roger Dujardin, vice-president of the UIHJ.

Forming a very complementary duet, Natalie Fricero and Rose Bruno evoked the broad outline of the new regulation on the service of documents respectively on an academic and practical level. The brand new regulation repeals the regulation n°1348/2000 of the Council of 29 May 2000. It will come into force on December 12, 2008. Professor Fricero endeavoured to present in a particularly lively and dynamic way the various modifications operated by the regulation 1393/2007: principle of the double date, translations, methods and times to refuse the act, new forms, etc. During her presentation, Mrs Fricero mentioned the hostility of academics and citizens towards the “other means of transmission and service” aimed at article 14 and relating to the use of the mail service instead of that of professionals of the service of documents. “The experience of the French citizens proves that it is catastrophic” she regretted by evoking the poor motivation of the employees of the mail service, the broken or non-existent letter-boxes and mails given to people other than their recipients. Rose Bruno insisted on the difficulties - in overall solved today - for the judicial officers to locate the receiving agencies. Our colleague also regretted the general lack of means of the judicial officers - in particular French - to find the recipients when they were without a known address.

 

Then, Isabelle Bambust insisted on the geographical and linguistic criteria of the regulation. Thus a French living in Brussels could be summoned in the Netherlands in Dutch only since it is one of the two official languages in force in the European capital. Thus Mrs Bambust favours the idea that the recipient should be able to refuse the documents when they are not established in a language that he/she understands. Then she made a detailed panorama of the jurisprudence in force on the regulation n°1348/2000, in particular on the problems of translation.

Jos Uitdehaag evoked the obstacles to the service of documents. He recognised that the new regulation constitutes an improvement compared to the previous one but that problems are still to regret. Among those appears the address of the recipient and the impossibility to serve the document when his address is unknown or when his residence is fictitious. How to obtain the address of the debtor, especially when hiding? In addition, the first quaestor of the Committee of the UIHJ was pleased with the installation of a national tariff for the service, even if a harmonization between the countries will prove to be delicate. He nevertheless said that the cost of service of document is always negligible compared to the fees charged by the councils of the parties and compared to the legal safety brought by the service of documents by a professional like the judicial officer.

 

The 2nd workshop related to regulation (EC) n°805/2004 of the European Parliament and the Council of 21 April 2004 creating a European Enforcement Order (EEO) for uncontested claims.

The workshop was placed under the chair of Leo Netten, 1st Vice-President of the UIHJ. The speakers were Jean-François van Drooghenbroeck, Francoise Andrieux (France), judicial officer, ENP expert, Charles Vanheukelen (Belgium), judicial officer, former President of the National Chamber of the Judicial Officers of Belgium, and Jeroen Nijenhuis (Netherlands), judicial officer.

Professor van Drooghenbroeck is the author of the reference work “An European Enforcement order” (Les dossiers du journal des tribunaux, 53, Larcier, 2006). In a brilliant presentation, he emphasised in a very clear way the various components of this instrument often criticised for its complexity: definition of the uncontested claims, concept of enforceable decision, conditions of delivery of the EEO, minimal standards relating to the service of documents, minimal standards for a re-examination in exceptional cases, or conditions for implementation of the EEO. Like her colleague Natalie Fricero, professor van Drooghenbroeck considered it regrettable that, in a European instrument which purpose is to raise the European standards of the defendants' rights and legal safety, it was not pled for a reinforcement of the requirement of the service of documents and for a plebiscite in favour of the service of documents to the addressee in person. “It is the reverse which occurred. Rather than bringing Europe upward, it brought it downward”, regretted the speaker.

But overall, professor van Drooghenbroeck decided in favour of the EEO, like Charles Vanheukelen who sees in this instrument a formidable harmonization tool for the enforcement procedures in the European Area of Justice. Our eminent fellow-member evoked the whole of the practical methods to approach this instrument. He insisted on the importance of the document initiating the proceedings which will allow thereafter the implementation of the EEO. This document will have to contain certain elements, and in particular three points. Initially, it is necessary that the decision is enforceable. It is thus advisable to ask in the document initiating the proceedings that the judgement to come be declared enforceable even by interim. In second place, it is necessary to be attentive over the interest rate and the period for which these interests are due.

In third place, the debtor must be informed of the procedural methods to contest the claim, which must appear in the initiating document. If this document is not drafted in accordance with the EEO provisions, the judicial officer will have “to make the proper rectifications” at the time of the drafting of the act of service of the decision to integrate the elements required by the regulation.

 

If Françoise Andrieux were pleased with the existence of this instrument, she attempted to seek in the regulation itself the reasons for which its use is so confidential. Concerning the grounds for appeal, there are three principal ones, envisaged in articles 10, 21 and 23. Concerning the conditions, the judicial officer is confronted with practical difficulties. Nothing comes to define in the text of the regulation the “uncontested claims” if it is not the inaction, the passivity of the defendant or his absence of dispute during the court hearing. Françoise Andrieux also evoked the “Treasure Hunting” of the minimal standards, on the basis of article 3, passing by articles 6, 13 and 19, for finally leading to the enforcement phase by the use of article 20. She also reviewed the various forms and the keys to complete them and analyse them.

Jeroen Nijenhuis, as for him, was clearly posted at the sides of the “non-believers” of the EEO regulation. He indicated that this instrument offers nothing in terms of guarantee of authenticity of the EEO and that European Area of Justice entirely lies on the mutual trust - even the naive trust - between the States. He wondered about the fact of knowing if the suppression of the exequatur was a good or a bad idea. In any case, in the event of exequatur, there is always a jurisdiction to carry out checking. Our fellow-member also indicated that the European Union lives through forms. But still it is necessary to know how to complete them. Thus, when a defendant expresses any degree of dispute as regards the claim, it is sufficient to prohibit the delivery of an EEO. Ultimately, for our fellow-member, the conditions for application of the EEO regulation are so complex that the creditor will finally often prefer to use the Brussels I regulation.

 

The 3rd workshop considered the near future with regulation (EC) n°1393/2007 of the European Parliament and the Council creating a European Order for Payment Procedure (EOP).

It was placed under the chair of Bernard Menut, secretary of the board of the UIHJ. The speakers were Frédérique Ferrand, Mathieu Chardon (France), judicial officer, 1st secretary of the UIHJ, Marc Schmitz (Belgium), judicial officer and quaestor of the Committee of the UIHJ, and Geert Wind (Netherlands), judicial officer.

Frédérique Ferrand presented the broad outline of this new Community regulation which will come into force on 12 December 2008. Professor Ferrand indicated that it was about the first European enforceable title of autonomous nature. She specified that the European Commission wanted this instrument to be also applied to all litigations of pure national law. Finally it applies only to the cross-border litigations between Member States, except for Denmark. With a perfect control of her subject, Mrs Ferrand successively described the objectives of the EOP, its field of application, the procedure in itself and finally the methods of contestation. Mathieu Chardon and Marc Schmitz then mentioned the practical problems the judicial officers will be confronted to when they soon will have to apply the regulation. These problems were mentioned in the form of fifteen questions and answers: who can sign the request for EOP, can a judicial officer represent the defendant to file a claim or a contest, what of the enforcement measures in the event of a contest or of a request for re-examination, etc. On this occasion, Marc Schmitz recalled that the EOP was strongly inspired by the procedure of the German Order for Payment procedure (Mahnverfahren). For his part, Mathieu Chardon indicated he was shocked that, when the documents were served by professionals like judicial officers, - which is mandatory in several States - the costs of service were deliberately excluded from the court expenses envisaged in article 25 and being able to be claimed from the debtor.

Lastly, Geert Wind presented the EOP while insisting on the Dutch specificities. Thus, regarding the Netherlands, one thinks of making EOP delivered by only one Dutch jurisdiction, located in The Hague. As regards litigation relating to consumers, the consumer must always be condemned by a jurisdiction close to his residence. Our fellow-member also evoked the forms and in particular that of the form G (declaration or enforceability).

 

Then, the day was completed by a dazzling presentation, clear and very complete, of The Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters. Laurence Thébault, the speaker, rightly recalled that regulations 1348/2000 and 1393/2007 are very largely inspired by the 1965 convention. Representing The Hague Conference on Private International Law she successively approached the conditions for application of the convention, the various transmission channels (main, alternate and derogatory), the articles relating to the protection of the applicants and the defendants, and finally the sources of information available on the convention (www.hcch.net).

Each intervention was the subject of questions on behalf of the assistance giving place to a nourished debate which was stopped only because of lack of time. In this respect, when closing the day, president Isnard again thanked all the speakers as well as Roland de Meerleer and Luisa Lozano, secretary of the UIHJ. Then he greeted the great assiduity of the assistance. “That is exceptional and shows that the study of the Community and international texts arouses a powerful interest on behalf of the judicial officers. It is also the demonstration that the judicial officers are concerned in the movement of construction of the Legal Area of Justice in Europe and also feel implied in their training” he indicated. As the president of the UIHJ mentioned, this premiere is an encouragement which calls for recurring!