It is on November 10, 2006, that the honorary president of the association of the judicial officers of Germany, Eduard Beischall, the honorary president of the Belgian national Chamber, Charles Vanheukelen and I went to Vienna to meet some judicial officers who are known to have “liberal ideas” and who are rather progressive.
I propose to very quickly evoke the weaknesses of the Austrian system and, in that purpose, I think that it is necessary to take into account two aspects: on one side the judicial officer as an enforcement agent, and on the other side, the enforcement procedure.
On the level of the judicial officer
The wages of the judicial officer amount, after 30 years of service, to 1 200 euros Net, per month, plus fees. These fees result from the documents that he serves or makes within the framework of the execution. That still ensures to him an additional income of more or less 800 euros Net. Thus in short, after 30 years of service, a judicial officer, has a Net income of 2 000 euros. Then, it is obvious that this is hardly a motivation for such work and experience. A young fellow-member beginning does not get more than 1 600 to 1 700 euros Net per month.
It is necessary to know that he treats approximately between 15 and 20 files per day, therefore an average of more or less 3 000 files of execution per year.
Another weakness of the Austrian judicial officer is obviously the fact that it is very difficult to get in contact with him. There is no legal obligation for the judicial officer to be reachable, neither for the creditor, nor for the debtor. There are some who are easily reachable. On the other hand, for some others, being unreachable is a means of avoiding additional work.
It is necessary to realize that a creditor can never charge a judicial officer of a mission, but must always ask the court. Moreover, it is estimated that a direct contact between the debtor and the judicial officer, apart from the visits which he makes on the spot, is not necessary.
The judicial officer, of course, while being a civil servant, is not responsible for the acts which he performs. It is the State which is responsible.
The judicial officers do not have any particular qualification and no diploma is necessary. There is a test of aptitude which comprises for example a 10 minutes dictation and some tests of logic. There is also an interview to check whether the candidate has all the required psychological aptitudes. Then, within a clerk's office the candidate begins a training course of approximately more or less four weeks. After this short passage in the clerk's office, he must accompany a judicial officer during approximately 3 to 4 months. Then he only can start working. A given territory is allotted to him.
There are however training courses, but those are organised only thereafter, when, for budgetary reasons, one manages to join together 12 or 15 judicial officers. It may very well be that a judicial officer is already in service for two or three years before reaching this course. This course is more or less 16 hours per week during 3 months.
There is, obviously, no continuing education, in the event of legislative modification. There is however the possibility of following a special training, but only after six years of trade. This training lasts approximately 3 months, to the amount of 8 hours per day. The achievement of these specialised courses makes it possible to raise the wages up to around 200 euros per month. This specialised training is not compulsory.
On the level of the procedure
“Pools” of enforcement are established within the court. They transmit the file of execution to the judicial officer and exert a permanent control on him. The judicial officer does not have any autonomy and any managerial capacity on the procedure. It is the board of this pool of execution which determines all adequate measurements to take.
After the creditor gave an enforceable title to the court, the court must still issue an enforcement order. This order is served to the debtor by the post. The debtor contest the order for two weeks and it is only after more or less 5 weeks that the judicial officer gets the documents to carry them out.
No payment by instalments is possible, without the judicial officer visiting the debtor in order to make an attempt at seizure.
If the instalments are set for a period of more than 4 months, the judicial officer must obtain as a preliminary the authorisation of the board of the pool.
Of 3 000 to 3 500 executions, there are approximately 200 of them which lead to a seizure. The 2 800 others consist in files of declarations of assets under oath and are classified without continuation. The majority of the judicial officers are not interested in negotiating a plan of discharge and payment by instalments with the debtor since there are no additional remunerations, if the debt is paid over several months.
A seizure costs only 6 euros, whatever time is spend by the judicial officer to perform it, and a declaration of assets under oath is paid 2 euros. A service of document costs 1.40 euros. It is less expensive than the Post office. An eviction amounts to 30 euros and there again, whatever time it takes to the judicial officer, even if the eviction of a company takes 3 days or more. Obviously the debtor does not fear enforcement since the debt is not increased appreciably.
Moreover if the judicial officer must intervene on Saturday or Sunday he does not receive any additional remuneration to achieve his work.
You will certainly ask yourself the question whether it is important to observe the evolution of the profession in this country, which counts even less inhabitants than Belgium. I must unfortunately answer you by the affirmative, since the Austrian ministry for Justice will present its system of enforcement within the framework of many European projects in the Eastern European countries as “one of the least expensive and most powerful systems”. To be continued...
Marc Schmitz
In charge of the mission UIHJ “Austria”
