Cross-border debt collection in Europe has been considerably simplified thanks to the european order for payment procedure. However, this increased efficiency for creditors raises a legitimate question: how can defendants be protected against potential abuse or error? The procedure provides for specific protection mechanisms, including the right to a review in exceptional situations.
The delicate balance between efficiency and the rights of the defence
The European order for payment procedure, introduced by Regulation (EC) No 1896/2006, is based on the principle of reversal of litigation. The defendant is informed only after the order has been issued and has 30 days to lodge an objection. If no objection is made, the injunction becomes enforceable.
This mechanism, which is effective for creditors, entails risks for defendants. What can be done if the document was not served correctly or if the injunction was wrongly issued?
Re-examination in exceptional cases: a safety valve
Article 20 of the Regulation provides for a review procedure once the opposition period has expired. There are two possible cases.
First case: late notification or force majeure
The defendant may request a review where :
- The injunction was notified without proof of receipt (article 14 of the Rules) and that this notification did not take place in sufficient time to prepare his defence, through no fault of his own.
- He was prevented from contesting the claim due to force majeure or extraordinary circumstances through no fault of his own.
In both cases, the defendant must act "promptly".
Second case: injunction manifestly wrongly issued
Reconsideration is also possible where the injunction has been wrongly issued in view of the requirements of the Regulation or due to other "exceptional circumstances".
This provision covers cases of manifest procedural irregularities, such as lack of jurisdiction on the part of the court of origin or the cross-border nature of the dispute.
A restrictive interpretation by the CJEU
The Court of Justice of the European Union has adopted a strict approach to review, in order to preserve the effectiveness of the procedure.
In the Novontech-Zala (order of 21 March 2013), the Court held that the lack of diligence on the part of the defendant's representative did not constitute an "extraordinary circumstance" justifying a review.
More recently, in the Thomas Cook Belgium (22 October 2015), the CJEU rejected the possibility of a review based on alleged lack of jurisdiction of the court of origin, based on allegedly incorrect information provided by the claimant.
These decisions show the Court's desire to limit the use of this exceptional procedure.
The review procedure in practice
In French law, the procedure is governed by articles 1424-8 to 1424-15 of the Code of Civil Procedure.
The application is made to the clerk's office of the court that issued the injunction, by declaration against a receipt or by registered letter. Unlike the opposition, there is no standard form at European level.
If reconsideration is granted, the injunction is declared null and void. Otherwise, it remains fully valid. The decision may be appealed if the amount of the claim exceeds €4,000.
A system that can be improved
The review mechanism has a number of weaknesses:
- The lack of a standardised form complicates the task of defendants.
- The notion of "promptness" remains vague, with no precise deadline set by the Regulations.
- The notions of "extraordinary" or "exceptional" circumstances are not very clear.
A reform inspired by Regulation (EC) No 4/2009 on maintenance obligations could resolve some of these difficulties by :
- Removing the distinction based on the method of notification
- Clarifying the cases in which the review can be initiated
- Setting a precise deadline, like the 30-day deadline proposed in other European instruments
It should also be noted that the defendant may request the suspension or limitation of performance to the competent courts of the State of enforcement, in accordance with Article 23 of the Regulation.
Recent litigation demonstrates the crucial importance of service. In a judgment of 5 December 2024 (C-389/23), the CJEU validated the possibility for national laws to impose the nullity of the injunction in the event of irregular service.
Our advice for defendants facing a European order for payment :
- Check the notification conditions immediately
- Consult a lawyer as soon as possible to assess the remedies available
- Don't wait: act as quickly as possible, the notion of "promptness" being interpreted strictly.
Questions about your rights in relation to a European order for payment, or need assistance to challenge a decision ? Our law firm specialising in European law is at your disposal to examine your situation and suggest the appropriate legal strategy.
Sources
- Regulation (EC) No 1896/2006 of 12 December 2006 creating a European order for payment procedure
- CJEU, Order of 21 March 2013, Novontech-Zala kft. v Logicdata Electronic & Software Entwicklungs GmbH, Case C-324/12
- CJEU, 4th Ch. 22 October 2015, Thomas Cook Belgium NV v/ Thurner Hotel GmbH, Case C-245/14
- CJEU, 3rd Ch, 4 September 2014, Joined Cases C-119/13 and C-120/13, Eco cosmetics and Raiffeisenbank
- CJEU, 5 December 2024, Case C-389/23
- Articles 1424-8 to 1424-15 of the French Code of Civil Procedure
- G. PAYAN, "Procédure d'injonction de payer européenne", Répertoire de procédure civile, Dalloz, January 2018
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