Imagine this situation: your company has just obtained a judgment against a French debtor, but its assets are located in Germany. How do you enforce this decision without going through an exequatur procedure? The European Enforcement Order (EEO) offers a solution.
This mechanism, introduced by Regulation (EC) No 805/2004, allows judgments relating to uncontested claims to circulate freely within the European Union. For a full understanding of what the EEO is, its objectives and its scope of application, please consult our main article on the European Enforcement Order. Let's see how to get it.
Minimum procedural guarantees
Certification as an EEO is only possible if certain procedural guarantees have been met. These guarantees apply only in the case of tacit recognition of the claim.
Service of the document initiating proceedings
The regulations distinguish between two types of service:
- With proof of receipt by the debtor (article 13): personal service with acknowledgement of receipt, postal service with acknowledgement of receipt, or electronic service with acknowledgement of receipt.
- Without proof of receipt (article 14): deposited in the letterbox, given to a third party living at the same address, etc.
Please note! Article 14 §2 of the Regulation states that service without proof of receipt is not permitted if the debtor's address is not known with certainty.
The Court of Justice of the European Union has confirmed that a default judgment against a defendant whose address is unknown cannot be certified as an EEO (CJEU, 15 March 2012, Case C-292/10, G. v Cornelius de Visser).
Informing the debtor
The document initiating proceedings must contain :
- Information on the claim (name and address of parties, amount, cause of claim)
- Information on the formalities to be completed to contest the claim
Recently, the CJEU recalled that a judgment given without the debtor having been informed of the court to which to address his response cannot be certified as an EEO (CJEU, 28 February 2018, Collect Inkasso OÜ, Case C-289/17).
The possibility of reviewing the decision
The Regulation requires national law to provide for a review of the decision in two cases:
- Where the document initiating proceedings has been served without proof of receipt and the debtor has not had time to prepare his defence
- When the debtor has been prevented from contesting the claim for reasons of force majeure
The CJEU has clarified that Member States are not obliged to adapt their legislation to provide for such a review, but the absence of such a procedure prevents certification as an EEO (CJEU, 17 December 2015, Imtech Marine Belgium, Case C-300/14).
The certification procedure
The competent authority
The regulation designates "the court of origin" as competent to issue the EEO certificate. In France, article 509-1 of the Code of Civil Procedure specifies that the application must be submitted to the judge who handed down the decision.
The CJEU clarified that certification is a jurisdictional act that falls within the exclusive competence of the judge (CJEU, 17 December 2015, Imtech Marine Belgium). This solution was confirmed in the Pebros Servizi judgment (CJEU, 16 June 2016, Case C-511/14).
Note that the notary is not a court within the meaning of the Regulation and therefore cannot certify as an EEO an enforcement order (CJEU, 9 March 2017, Ibrica Zulfikarpasic, Case C-484/15).
Specific conditions depending on the type of procedure
For a court decision is certified as an EEO, it must :
- Be enforceable in the Member State of origin
- Not be incompatible with certain jurisdictional rules (insurance and exclusive jurisdiction)
- Respect the minimum procedural guarantees if the claim is tacitly uncontested
For a legal transactionIt is sufficient that it is enforceable in the Member State of origin.
For a authenticated deedIt must be enforceable and contain an express acknowledgement of the debt.
When to apply for certification
The certificate may be requested "at any time" from the court of origin. The CJEU has confirmed that it is not necessary for this request to be made in the document instituting proceedings (CJEU, 17 December 2015, Imtech Marine Belgium).
Rectification and withdrawal of the certificate
The certificate may be rectified in the event of a material error (discrepancy between the decision and the certificate).
Withdrawal is possible if the certificate has been "unduly issued". The request must be sent to the court of origin using the standard form in Annex VI of the Regulation.
The French Court of Cassation has reiterated that this request can only be made in the Member State of origin (Cass. 2e civ., 26 September 2013, no. 12-22.657).
Special cases
Partial certificate
Article 8 of the regulation provides that a partial certificate may be issued if only certain parts of the decision meet the conditions of the regulation.
Legal costs
A decision on legal costs may be certified as an EEO provided that the main decision relates to an uncontested claim (CJEU, 14 December 2017, G. and I. Chudaś, Case C-66/17).
The EEO certification procedure may seem complex, but it offers a considerable advantage: direct enforcement of the decision in all Member States without any intermediate procedure. Nevertheless, the strict conditions to be met justify the involvement of experienced legal counsel to maximise your chances of obtaining this certification without a hitch. To find out more about the fearsome effects of this toolSee our dedicated analysis.
A law firm specialising in international litigation can support you in this process, from analysing your title to obtaining the certificate, thanks to its expertise in enforcement and debt recovery.
Sources
- 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
- Code of civil procedure, article 509-1
- CJEU, 15 March 2012, Case C-292/10, G. v Cornelius de Visser
- CJEU, 17 December 2015, Imtech Marine Belgium, Case C-300/14
- CJEU, 16 June 2016, Pebros Servizi, Case C-511/14
- CJEU, 9 March 2017, Ibrica Zulfikarpasic, Case C-484/15.
- CJEU, 14 December 2017, G. and I. Chudaś, Case C-66/17
- CJEU, 28 February 2018, Collect Inkasso OÜ, Case C-289/17
- Cass. 2nd civ. 26 September 2013, no. 12-22.657
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