Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter P.2: Payment Order Regulation

Wolfgang Hau

I. Background and context

Particularly the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1) (→Brussels I (Convention and Regulation)) and the European Enforcement Order Regulation (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, [2004] OJ L 143/15) have facilitated cross-border debt recovery within Europe (→Debt recovery, cross-border). The European Commission indicated, however, already in its Green Paper of 20 December 2002 (Commission, ‘Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation’ COM(2002) 746 final) that there is need for further action: the aim was not only to unify the rules on free movement of enforcement titles, but to create a unified European procedure leading to an enforceable judgment. The result was the creation of the European Payment Order Regulation (Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, [2001] OJ L 399/1) (see below) and later on the European Small Claims Procedure Regulation (Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, [2007] OJ L 199/1) (→Small Claims Regulation).

On 12 December 2006, the European Payment Order Regulation was adopted (preliminary materials: Commission, ‘Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure’ COM(2004) 173 final and Commission, ‘Amended Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure’ COM(2006) 57 final). The legislative competence was founded on art 61(c), 65(c), 67 EEC Treaty (Treaty of 25 March 1957 establishing the European Economic Community, 294–8 UNTS). The relevant provisions in practice entered into force on 12 December 2008 (art 33(2) European Payment Order Regulation). By using this procedure a judgment on uncontested pecuniary claims can be obtained in the form of a so-called European Order for Payment. The new procedure provides a simple and cost-effective means of enforcing cross-border pecuniary claims. The European Order for Payment is the first genuine European enforcement order in the history of European civil procedure legislation (the older ‘European Enforcement Order’ does not deserve this attribute, because the European Enforcement Order Regulation only establishes a procedure whereby national enforcement orders attained in accordance with national procedure law are simply ‘re-labelled’ as ‘European orders’). The European Order for Payment Regulation can be regarded as the procedural supplement to the Directive No 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions, [2000] OJ L 200/35.

II. Scope of application

The European Order for Payment Procedure is akin to fast-track procedures leading to an enforceable order, as provided for in many national legal systems of the Member States. These simplified national procedures are not superseded by the European Order for Payment Procedure (art 1(2) European Payment Order Regulation). While such national procedures are outside the framework of the European Payment Order Regulation, the Member States must nevertheless take account of the principles of equivalence and effectiveness as required by European Union law (cf ECJ Case C-618/10 Banco Español de Crédito SA v Joaquín Calderón Camino [2012] OJ C 227/5).

Although the Commission initially had more ambitious plans, the European Payment Order Regulation applies only to cross-border cases (cf art 2(1)). A cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the presiding court (art 3). If, for example, the proceedings are initiated in Germany, the European Payment Order Regulation is applicable where: (1) the claimant is domiciled in Germany and the defendant in Austria; (2) the claimant is domiciled in Austria and the defendant in Germany; (3) both parties are domiciled in Austria; (4) one party is domiciled in Austria and the other in France; or (5) one party is domiciled in Austria and the other in a third state (eg Switzerland). In p. 1343contrast, art 3(1) European Payment Order Regulation does not apply where both parties are domiciled in a third state, both parties are domiciled in the forum state or one of the parties is domiciled in the forum state and the other in a third state, which may seem inadequate if enforceable assets are located in another Member State. A question to be answered separately from the aforementioned scope of the European Payment Order Regulation is the international jurisdiction of the Member State issuing the enforcement order (see below).

The European Payment Order Regulation applies to the collection of pecuniary claims for a specific amount that have fallen due at the time of application (art 4) and arise out of any civil or commercial matter with the exception of those mentioned in art 2(1) and art 2(2). These rules mainly correspond to the standards found in the context of art 1 Brussels I Regulation (→Civil and commercial matters). Nonetheless, it is noteworthy that the European Payment Order Regulation covers non-contractual obligations only by way of exception and under certain circumstances (art 2(2)(d)). Whether the claim to be enforced arises out of a consumer or a business transaction is irrelevant. Unlike the European Small Claims Procedure, the European Payment Order Regulation is therefore applicable to claims of unlimited amount.

III. Procedure

Proceedings are initiated by submission of an application for a European Order for Payment to a competent court. Pursuant to art 6(1) European Payment Order Regulation, international jurisdiction is in general determined in accordance with the relevant provisions of the Brussels I Regulation (now: Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and) Regulation (recast)). This is why generally the courts of the Member State in which the defendant is domiciled have jurisdiction unless the claimant has opted for one of the specific jurisdictions provided in art 5 et seq of the Brussels I Regulation (art 7 et seq Brussels I Regulation (recast)); however, if the defendant is a consumer, the jurisdiction of the defendant’s domicile is exclusive, so that no other Member State may issue a European Order for Payment (art 6(2) European Payment Order Regulation).

For the initiation of proceedings it is mandatory to use a standard form (art 7 European Payment Order Regulation). The requirements for an application for a European Order for Payment are exclusively determined by art 7 and may not be extended by national law (ECJ Case C-215/11 Iwona Szyrocka v SiGer Technologie GmbH [2013] OJ C 38/5, regarding a Polish provision that mandates the specification of the disputed amount). The application shall be submitted in paper form or by any other means of communication accepted by the Member State of origin and available to the court of origin (art 7(5) European Payment Order Regulation). A description of evidence supporting the claim is sufficient (art 7(2)(e) European Payment Order Regulation); documents or other means of evidence therefore need not be attached. However, the claimant must declare that the information provided is true to the best of his knowledge and belief and he must acknowledge that any deliberate false statement could lead to appropriate penalties under the law of the Member State of origin (art 7(3) European Payment Order Regulation). Representation by a lawyer or another legal professional is not mandatory (art 24 European Payment Order Regulation). Whether →agency (eg through debt collection firms) is permissible, must be answered according to national law.

The examination of the application by the court is limited to the scope of the European Order for Payment Regulation, the existence of a cross-border case, the jurisdiction of the court and the formal requirements of the application (art 8 European Payment Order Regulation). Regarding the merits of the claim, the court (not necessarily a judge; cf Recital (16)) only assesses whether the claim appears to be founded based on the allegations of the claimant. The Regulation expressly provides that this examination may be conducted in the form of an automated procedure (art 8(2)). In the event of formal deficiencies of the application, further proceedings are governed by art 9 European Payment Order Regulation or, in the event of wholly or partly meritless claims, by arts 10 and 11. There is no right of appeal against the rejection of the application (art 11(2)) and no need, since the rejection does not have res-judicata effect (art 11(3)).

If all requirements are met, the court issues a European Order for Payment using a standard form (art 12(1)). The European Order for Payment, together with a copy of the application p. 1344form and further information on the legal →remedies available, shall be served on the defendant (art 12(2)–(5)). The details of service are governed by the European Service Regulation (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, [2007] OJ L 324/79) or the national service rules which must meet the minimum standards laid down in art 13 et seq European Payment Order Regulation (art 12(5) European Payment Order Regulation). Within 30 days of service of the European Order for Payment, the defendant may lodge a statement of opposition with the court of origin (art 16(1) and (2) European Payment Order Regulation); neither the use of the supplied standard form nor any statement of reasons is mandatory. If the statement of opposition is entered within the time limit, the proceeding continues before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure unless the claimant has explicitly requested that the proceedings be terminated in that event (art 17 European Payment Order Regulation). According to the ECJ, a statement of opposition to a European Order for Payment cannot be regarded as constituting the entering of an appearance within the meaning of art 24 Brussels I Regulation (now: art 26 Brussels I Regulation (recast)), even if the defendant in the statement of opposition puts forward arguments relating to the substance of the case without challenging the jurisdiction of the Member State of origin (cf Case C-144/12 Goldbet Sportwetten GmbH v Massimo Sperindeo [2013] OJ C 225/29).

If no statement of opposition has been lodged with the court of origin within the time limit laid down in art 16(2) European Payment Order Regulation, the court of origin shall, after having verified the date of service, declare the European Order for Payment enforceable using a standard form (art 18). The order shall be directly recognized and enforced in every Member State without the need for a declaration of enforceability (see below). Review of the European Order for Payment before the competent court in the Member State of origin remains possible only in exceptional cases and under strict preconditions (cf ECJ Case C-324/12 Novontech-Zala kft. v Logicdata Electronic & Software Entwicklungs GmbH [2013] OJ C 225/45: no review for failure to observe the time limit by reason of the negligence of the defendant’s representative). According to the ECJ, the procedures laid down in art 16 et seq are not applicable where it appears that a European Order for Payment has not been served in a manner consistent with the minimum standards laid down in art 13 et seq; however, where it is only after a European Order for Payment has been declared enforceable that such an irregularity is exposed, the defendant must have the opportunity to raise that irregularity, which, if it is duly established, will invalidate the declaration of enforceability (ECJ Case C-119/13 & C-120/13 eco cosmetics & Raiffeisenbank St. Georgen [2014] OJ C 395/10).

The court fees of a European Order for Payment Procedure and of the ordinary civil proceedings that ensue in the event of a statement of opposition are governed by national law (art 26 European Payment Order Regulation). However, national law must ensure that the initiation of a European Order for Payment Procedure may not cause the claimant additional costs (art 25(1)).

IV. Enforcement

Once the claimant has obtained a European Order for Payment, this order is enforceable in every Member State (with the exception of Denmark, art 2(3) European Payment Order Regulation). The requirements of enforcement and the possibilities of review in the state of enforcement are designed in accordance with the corresponding rules in the European Enforcement Order Regulation and the European Small Claims Procedure Regulation: a European Order for Payment shall be enforced under the same conditions as an enforceable decision issued in the Member State of enforcement (art 21(1)(2) European Payment Order Regulation). A declaration of enforceability (exequatur) is not required (art 19 European Payment Order Regulation). The documents to be provided by the claimant are listed in art 21(2) European Payment Order Regulation. Where necessary, a certified translation of foreign-language documents into the official language of the Member State of enforcement shall be provided. The enforcement in the Member State of enforcement may only be refused, stayed or limited in accordance with art 22 and art 23 European Payment Order p. 1345Regulation. A review as to the substance of the European Order for Payment in the Member State of enforcement (‘révision au fond’) is explicitly prohibited (art 22(3)), nor is a review with regard to the ordre public allowed.

V. Significance

Since its coming into force, the European Order for Payment Procedure has gained considerable practical importance in cross-border cases, much more so than the European Small Claims Procedure. This may be due to the fact that the European Order for Payment Procedure is not limited by a maximum monetary amount and that claimants will most likely make an effort to enforce their rights in cross-border cases when a significant amount of money is at stake. That is why, presumably, an ‘ordinary lawsuit’ in accordance with national law and based on the Brussels I jurisdiction rules will continue to play a major role alongside the European Order for Payment in cross-border enforcement cases. In order to increase the European Order for Payment Procedure’s public recognition, the European Commission published a Practice Guide in 2011. The report reviewing the operation of the European Order for Payment Procedure was published on 13 October 2015 (Com (2015) 495 final), but it proposes only marginal reforms.

Literature

  • Mikael Berglund, Cross Border Enforcement of Claims in the EU: History, Present Time and Future (Wolters Kluwer 2009);

  • Carla Crifò, Cross-Border Enforcement of Debts in the European Union, Default Judgments, Summary Judgments and Orders for Payment (Wolters Kluwer 2009);

  • Carla Crifò, ‘Civil Procedure in the European Order’ in Déirdre Dwyer (ed), The Civil Procedure Rules Ten Years On (OUP 2010);

  • Michel Défossez, ‘Titre exécutoire européen, injonction de payer européenne et procédure européenne de règlement des petits litiges’ in Michel Défossez and Juliette Sénéchal (eds), Enforcing Contracts: Aspects procéduraux de l’exécution des contrats transfrontaliers en droit européen et international (Larcier 2008);

  • Anna Katharina Fabian, Die Europäische Mahnverfahrensverordnung im Kontext der Europäisierung des Prozessrechts (Jenaer Wissenschaftliche Verlagsgesellschaft 2010);

  • Aude Fiorini, ‘Facilitating Cross-border Debt Recovery: The European Payment Order and Small Claims Regulations’ (2008) 57 ICLQ 449;

  • Emmanuel Guinchard, ‘L’Europe, la procédure civile et le créancier: l’injonction de payer européenne et la procédure européenne de règlement des petits litiges’ (2008) R.T.D.C. 465;

  • Barbara Kloiber, ‘Das Europäische Mahnverfahren’ (2009) ZfRV 68;

  • Johannes Maximilian Kormann, Das neue Europäische Mahnverfahren im Vergleich zu den Mahnverfahren in Deutschland und Österreich (Jenaer Wissenschaftliche Verlagsgesellschaft 2007);

  • Xandra E Kramer, ‘Enhancing Enforcement in the European Union: The European Order for Payment Procedure and Its Implementation in the Member States, Particularly in Germany, the Netherlands, and England’ in Cornelis Hendrik van Rhee and Alan Uzelac (eds), Enforcement and Enforceability: Tradition and Reform (Intersentia 2010);

  • Maria Lopez de Tejada and Louis d’Avout, ‘Les non-dits de la procédure européenne d’injonction de payer’ (2007) Rev.crit.DIP 717;

  • Marco Mellone, ‘Legal Interoperability in Europe: An Assessment of the European Payment Order and the European Small Claims Procedure’ in Franceso Contini and Giovan Francesco Lanzara (eds), The Circulation of Agency in E-Justice: Interoperability and Infrastructures for European Transborder Judicial Proceedings (Springer 2014);

  • Melanie Meyer-Berger, Mahnverfahren und Vollstreckung: Probleme und Entwicklungen aus nationaler und europäischer Sicht (Dr. Kovač 2007);

  • Gar Yein Ng, ‘Testing Transborder Civil Procedures in Practice: Findings from Simulation Experiments with the European Payment Order and the European Small Claims Procedure’ in Franceso Contini and Giovan Francesco Lanzara (eds), The Circulation of Agency in E-Justice: Interoperability and Infrastructures for European Transborder Judicial Proceedings (Springer 2014);

  • Alvaro Pérez-Ragone, Europäisches Mahnverfahren: Ein prozesshistorischer, -vergleichender und dogmatischer Beitrag zur Vergemeinschaftung der Inkassoverfahrensnormen in der Europäischen Union (Carl Heymanns 2005);

  • Andreas Pernfuß, Die Effizienz des Europäischen Mahnverfahrens (Nomos 2009);

  • Nicola Preuß, ‘Erlass und Überprüfung des Europäischen Zahlungsbefehls’ (2009) 122 ZZP 3;

  • Walter H Rechberger, ‘Die neue Generation: Bemerkungen zu den Verordnungen Nr. 805/2004, Nr. 1896/2006 und Nr. 861/2007 des Europäischen Parlaments und des Rates’ in Rolf Stürner and others (eds), Festschrift für Dieter Leipold zum 70. Geburtstag (Mohr Siebeck 2009);

  • Anne Röthel and Ingo Sparmann, ‘Das europäische Mahnverfahren’ (2007) WM 1101;

  • Eva Storskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (OUP 2008);

  • Bartosz Sujecki, Das elektronische Mahnverfahren: Eine rechtsvergleichende und europarechtliche Untersuchung (Mohr Siebeck 2008);

  • Dimitrios Tsikrikas, ‘L’injonction de payer européenne’ (2009) 14 ZZPInt 221.