Improving the free circulation of court decisions
Article 67 of the October 1997 Amsterdam Treaty reinforces the domain of co-operation in civil matters having cross border implications, including the improvement and simplification of the system for cross-border service of judicial and extrajudicial documents, cooperation in the taking of evidence, and the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases.
In the network of the European construction, the judicial side had long been neglected. Since the 25 March 1957 Rome Treaty creating the Common Market, no convention, except the 27 September 1968 Brussels Convention, had marked a significant improvement.
But, as time went by, the question rose with more interest. To the free circulation of people and goods, Europe was withdrawing into itself when dealing with matters relating to national sovereignties.
However, the business world was getting impatient. Not so long ago, it took often several years to transmit a Legal document from France to a neighbour State. The systems in place were obsolete and dusty, and had some very damageable consequences for the European enterprises. One of the main criticisms was the obstacle to the free circulation of enforceable titles. Actually, the problem was the heaviness of the exequatur regime.
The total suppression of exequatur
The Tempera Council in October 1999 was to give birth to the European area of Freedom, security and justice, with a project based on 62 points, amongst which the recognition of decisions and the creation of an European Enforcement Order.
The virtue of the European Enforcement Order was to operate the total abolition of exequatur by facilitating the recognition of judicial decisions on the territory of the European Union.
Faithful to its tradition of a policy of “Small Steps”, the project included intermediary measures (Project Program on the implementation of the principle of mutual recognition of 15 January 2000).
Therefore and as a first step, the 22 December 2000 Council Regulation 44/2001 (Brussels I) was voted. It created the reduced exequatur, with the softening of the rules that were set until then by the 1968 Brussels Convention. Since then, the EU a created a tool that goes way beyond, by suppressing any form of exequatur: the European Enforcement Order.
The principle of mutual recognition of judgments
The European Enforcement Order does not suppress Brussels I. As a result, the two instruments now co-exist. The principle of the EEO lies on the mutual recognition of judgments (and authentic instruments) between Member States. The judge who has given a judgment in a country certifies it as an EEO and so makes it enforceable in the EU territory.
To this end, the judge must verify several points, which can be separated in three parts.
The judge must first ensure that the nature of debt is civil or commercial (the Regulation does not not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority).
The judge must check that the decision is relating to an uncontested claim. A claim shall be regarded as uncontested for instance if the debtor has expressly agreed to it or has never objected to it.
The third point concerns the implementation of the EEO.
To be eligible as an EEO, the decision must fulfil four cumulative conditions:
- the decision must be enforceable in the Country of origin
- the decision must not be incompatible with the rules relating to competence mentioned in the Brussels I regulation
- the procedure must comply with minimum standards
- the decision must have been given in the country of the debtor's domicile, in the cases mentioned in article 6 d.
The Regulation mentions that the issuing of the certificate can be made any time, but does not specify who can act upon this demand (creditor, Solicitor, Judicial Officer?).
Focus on the required minimum standards
This is the heart of the system. It also reveals a considerable heaviness. It puts in conflict the service of documents served by a Judicial Officer and the notification done by post or by another means.
Beyond this, what must be reminded - and which is absurd - is that, whatever the method of service, the aim is the same and goes to the same result: to allow the issuing of the EEO certificate. In the end, one can wonder what the necessity of this classification is, when it comes to conclude that everything is the same (service with proof or without proof)!
The letter put in a letter box, which is a simple document, and the service done by Judicial Officer, which is a legal and official document, are placed on the same level.
However the difference is fundamental. A document served by a Judicial Officer or a qualified agent, must mention the conditions of the service. Moreover, the Judicial Officer must inform the recipient orally. This is not possible with the notification done by post, especially when the acknowledgement of receipt is a piece of paper with an unreadable signature or covered in undecipherable mentions.
Information of the debtor and enforcement
Beyond the four conditions mentioned above, the judge must also verify that the notification or the signification of the document instituting the proceedings contained all information relating to:
- the existence of the debt
- the procedural requirements for contesting the claim.
The transmission of the documents is made with standardised forms. Once the EEO certificate is given, it is then valid in all Member States (except Denmark where it does not apply), according to the internal procedural rules. The EEO certificate cannot be contested. It came into force on 21 October 2005.
