From application to delivery: the court's role in the European order for payment procedure

Are you planning to collect a debt from a debtor established in another Member State of the European Union? The European order for payment procedure could be the right solution for you. But what exactly does the judge hearing such an application check? How does he assess your case?

Judicial review: a brief examination

One of the key features of the European order for payment procedure is the limited control exercised by the court. According to Article 8 of Regulation (EC) No 1896/2006, the court simply examines "whether the claim appears to be well-founded".

This wording clearly reflects the intention of the European legislator: to allow a summary, non-in-depth examination of the merits of the claim. The regulation even specifies that this examination "may be carried out by means of an automated procedure", as is already the case in Germany and Austria.

Scope of review: what does the judge actually check?

The judge will check four main points:

1. The cross-border nature of the dispute (Article 3)
2. The pecuniary, liquidated and payable nature of the claim (article 4)
3. International jurisdiction (article 6)
4. Content of the application (article 7)

This check is carried out by scanning the standard form Acompleted by the claimant. In practice, the judge does not check the accuracy of the information provided, but rather its plausibility.

This "no proof" approach is a far cry from the French model, which usually requires the production of supporting documents. Here, the claimant simply describe evidence without producing it.

The invitation to complete or rectify: a second chance

If the application is incomplete or contains irregularities, the judge must ask the applicant to complete or rectify it (article 9 of the regulations).

There is one exception to this obligation: when the request is " manifestly unfounded or inadmissible ". In this case, the judge may dismiss it immediately.

To invite the claimant to regularise his claim, the judge uses form B attached to the regulations. The judge then sets a time limit "appropriate to the circumstances", which the claimant must comply with or face rejection.

Possible outcomes: three possible scenarios

The judge has three options:

1. Rejection of the application

According to Article 11 of the Regulation, the application may be rejected when :

• The conditions of Articles 2, 3, 4, 6 and 7 are not met
• The claim is manifestly unfounded
• The applicant has not completed or rectified his application within the time limit set.
• The plaintiff refused a proposal for a partial injunction

If the application is rejected, the applicant receives a form D explaining the reasons. This rejection does not have the force of res judicata and does not prevent a new application.

2. Partial reception: the proposal for a partial injunction

An original mechanism, the proposal for a partial injunction allows the judge, when the conditions are met for only part of the claim, to propose a reduced injunction to the claimant (article 10).

The judge then uses Form C to formulate his proposal. The claimant must expressly accept or refuse this offer. If he accepts, the judge issues the injunction for the reduced amount. If the claimant refuses or does not respond, the application is rejected in its entirety.

Under French law, article 1424-3 of the Code of Civil Procedure states that the claimant can no longer act for the balance if he accepts the partial proposal, unless he waives service of the order.

3. Full admission: issue of the injunction

If all the conditions are met, the judge issues the European order for payment using form E (article 12).

The Regulation sets an objective of speed: the injunction must be issued "in principle within thirty days of the lodging of the application". However, statistics show that this deadline is only met in certain Member States.

Information communicated to the defendant: a crucial issue

The order for payment served on the defendant contains vital information, including :

• The origin of the injunction ("solely on the basis of information provided by the applicant")
• The options available to him (pay or object)
• The objection period (30 days)
• The consequences of not objecting (enforceability of the injunction)

This information guarantees that the defendant is kept informed and ensures that the proceedings are properly conducted.

Sources

• Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure
• Code of civil procedure, articles 1424-1 to 1424-15
• Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Regulation (EC) No 1896/2006 (COM(2015) 495 final)
• CJEU, 1st Ch. 13 Dec. 2012, Iwona Szyrocka v SiGer Technologie GmbH, aff. C-215/11

Are you considering using this procedure to recover a cross-border debt? Our firm can help you every step of the wayWe provide a full range of services, from checking the admissibility of your application to enforcing the injunction. Contact us for a personalised analysis of your case.