Obtaining a writ of execution does not guarantee payment. The creditor's journey does not end with theEuropean order for payment (EOP) - it really begins at this stage. Between legal obstacles and practical difficulties, cross-border enforcement remains a path strewn with pitfalls for European creditors.
Enforceability: conditions and formalities
The European order for payment becomes enforceable if the debtor does not lodge a statement of opposition within the specified period. Regulation (EC) No 1896/2006 sets this period at thirty days, plus an additional period for forwarding the statement of opposition. In France, this additional period is ten days, in accordance with article 1424-14 of the Code of Civil Procedure.
The court of origin then establishes the enforceability of the order using standard form G (Annex VII of the Regulation). In practice, it is the court registrar who issues this certificate and affixes the enforcement order, without any prior request from the creditor.
One particularity deserves attention: the execution of an IPE can only be considered after verification of its proper notification. The CJEU made this clear in its judgment of 4 September 2014 (cases C-119/13 and C-120/13): an injunction not served in accordance with the minimum standards of Articles 13 to 15 of the Regulation cannot follow the normal procedural regime.
Principle of free circulation of European orders for payment
The PEI embodies the culmination of a fundamental principle of the European judicial area: the mutual recognition of judgments. Article 19 of the Regulation enshrines this "abolition of exequatur", allowing direct enforcement in all Member States without any intermediate procedure.
This mechanism removes two traditional obstacles:
- The need for a declaration of enforceability
- The possibility of contesting recognition
In this way, the CAI becomes a " specific European Enforcement Order "This virtually unrestricted circulation is based on the prior standardisation of the procedure, which guarantees mutual trust between Member States. This virtually unrestricted circulation is based on the prior standardisation of the procedure, which guarantees mutual trust between Member States.
Article 22(3) of the Regulation expressly prohibits any review of the merits in the State of enforcement. The debtor cannot therefore challenge the validity of the claim before the courts of the enforcing State.
Grounds for refusal of enforcement: limited exceptions
The principle of free movement has two aspects exceptions provided for in article 22 of the regulations.
Firstly, incompatibility with a previous decision may justify a refusal to enforce. Three cumulative conditions must be met:
- A previous decision between the same parties and for the same cause
- This decision meets the conditions for recognition in the State of enforcement
- The incompatibility could not be invoked during the procedure in the State of origin
It is notable that there is no difference in treatment depending on whether the incompatible decision comes from a Member State or a third country.
Secondly, payment by the debtor constitutes a legitimate ground for refusal. However, the regulation is silent on the arrangements for proving payment, creating a legal uncertainty that has been highlighted by several commentators.
Enforcement itself: reference to national law
Despite procedural harmonisation, actual enforcement remains governed by the national law of the enforcing State (Article 21(1)). The European injunction is enforced under the same conditions as an equivalent national decision, without any possible discrimination.
This rule reflects the persistence of territoriality in enforcement matters. Each State retains sovereignty over the coercive procedures applicable on its territory.
In practice, the creditor has to understand and navigate the legal system of the country of enforcement, often with the help of a local lawyer. This reference to national laws can turn cross-border enforcement into an obstacle course, especially for SMEs and individuals.
Practical difficulties: asset transparency
The European Commission's report (COM(2015) 495 final) clearly identifies the major obstacle: the lack of asset transparency. How can assets whose existence or location is unknown be seized?
National legal arsenals vary considerably when it comes to asset investigations. These differences reflect distinct trade-offs between the creditor's right to enforcement and the debtor's right to privacy.
Since 1998, the European Commission has been considering legislative action in this area. The 2008 Green Paper on "the effective enforcement of judgments in the European Union" explored various avenues. The European Parliament also adopted resolutions in 2009 and 2011 calling for harmonisation.
However, no dedicated European legislative instrument has emerged. This gap complicates cross-border enforcement and maintains significant disparities between Member States.
Prospects for European judicial cooperation
Current solutions do not yet allow for truly effective execution. Several avenues for improvement should be explored:
- The adoption of a specific legislative instrument on asset transparency
- Harmonisation of enforcement procedures, at least in their fundamental principles
- Strengthening cooperation between enforcement agents and enforcement authorities
Experience shows that early recourse to a legal professional - lawyer or bailiff - significantly increases the chances of recovery in a cross-border context. Our firm regularly assists creditors in these complex procedures, mobilising our network of partners throughout Europe.
Don't hesitate to contact us for a personalised assessment of your cross-border debt collection case. We can advise you on the most appropriate strategy and help you avoid the pitfalls of a poorly managed procedure.
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
- CJEU, 3rd Ch., 4 Sept. 2014, Eco cosmetics GmbH & Co. KG v Virginie Laetitia Barbara Dupuy, Case C-119/13, and Raiffeisenbank St. Georgen reg. Gen. mbH v Tetyana Bonchyk, Case C-120/13
- CJEU, 4th Ch. 22 Oct. 2015, Thomas Cook Belgium NV v/ Thurner Hotel GmbH, aff. C-245/14
- Code of civil procedure, articles 1424-1 to 1424-15
- Report from the Commission to the European Parliament, COM(2015) 495 final, 13 Oct. 2015
- Commission Green Paper "The effective enforcement of judgments in the European Union: the transparency of debtors' assets", COM(2008) 128 final.
- PAYAN G., "Droit européen de l'exécution en matière civile et commerciale", Bruylant, 2012
- PAYAN G., "La transparence patrimoniale en droit(s) européen(s): réalisations et perspectives", Ius & Actores, Larcier, 2016/1-2
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