The European Enforcement Order: understanding this cross-border debt collection mechanism

Imagine that your French company has a claim of €20,000 against a German customer. Before 2004, recovering this sum required an exequatur procedure - long and costly. Since Regulation (EC) No 805/2004, you can obtain a European Enforcement Order (EEO), which simplifies everything.

Introduction to the concept of the European Enforcement Order

The European Enforcement Order is a legal mechanism that enables a court decision, court settlement or authentic instrument to be enforced in all Member States of the European Union (except Denmark) without going through an exequatur procedure in the State of enforcement.

It acts as a "passport" for the court decision. This certificate, issued in the State of origin on a standard form, guarantees that the judgment complies with minimum procedural standards and can circulate freely within the EU.

Background and objectives of Regulation 805/2004

The idea of the EEO was first put forward in 1992 by the French National Chamber of Judicial Officers, but it was not until 2004 that it became a reality.

Regulation (EC) No 805/2004 of 21 April 2004 is part of the wider framework of the European judicial area, initially set out in article 220 of the 1957 Treaty of Rome and then developed with the Treaty of Amsterdam (1997) and the Treaty of Lisbon (2009).

This text was a response to the programme adopted in Tampere (Finland) in 1999, where the European Council made mutual recognition of judicial decisions "the cornerstone of the creation of a genuine judicial area".

The main objective is to remove obstacles to the cross-border enforcement of court judgements, in order to facilitate the recovery of debts within the internal market.

Scope of application

Subjects concerned

The EEO applies to "civil and commercial matters", a concept interpreted autonomously by the Court of Justice. The Regulation explicitly excludes :

• Tax, customs and administrative matters
• State liability for acts of public authority
• The condition and capacity of individuals
• Matrimonial property regimes
• Wills and inheritance
• Bankruptcy and insolvency proceedings
• Social security
• Arbitration

In the Eurocontrol of 14 October 1976, the Court of Justice specified that this concept must be interpreted "by reference to the objectives and system of the Convention and to the general principles which emerge from the national legal systems as a whole". The key criterion is "the intervention of a public authority acting in the exercise of its public powers".

Acts covered

Three types of acts can be certified as EEO:

1. Court rulings judgment: any judgment given by a court of a Member State, whatever the judgment may be called (judgement, decree, order, etc.). Article 4 of the Regulation specifies that the fixing of the amount of the costs of proceedings by the court registrar is also included.
2. Authentic instruments documents formally drawn up or registered as such, the authenticity of which relates to the signature and content, drawn up by a public or authorised authority.
3. Court settlements agreements approved by a court or concluded before it in the course of proceedings.

It is not necessary for the document to have a cross-border dimension at the time of its creation. A purely domestic decision can be certified as an EEO if the assets to be seized are located in another Member State.

The central criterion: an uncontested claim

Definition of an uncontested claim

A claim is defined in Article 4, §2 of the Regulation as "a right to a specific sum of money which has fallen due or the due date of which has been indicated in the decision, settlement or authentic instrument".

The "uncontested" nature of this claim justifies the abolition of the exequatur. This is the key condition for obtaining an EEO.

The four cases of claims deemed to be uncontested

Article 3, §1 of the Regulation defines four situations where a claim is uncontested:

1. Express acknowledgement The debtor has expressly recognised the claim in a notarial deed or court settlement.
2. No objection the debtor has never opposed the claim in accordance with the procedural rules of the State of origin (in the case of a judgment by default or an uncontested order for payment).
3. Opposition followed by failure to appear the debtor first contested the claim and then did not appear or was not represented at the hearing, behaviour that can be assimilated to tacit recognition under the law of the State of origin.
4. Recognition in an authentic instrument The debtor has expressly recognised the claim in an authentic instrument.

It should be noted that the Court of Justice stated in the Pebros Servizi (C-511/14) of 16 June 2016 that the conditions under which a claim is deemed to be uncontested "must be determined autonomously, under this Regulation alone" and not in accordance with national law.

The EEO offers a major advantage over the Brussels I bis Regulation: there are virtually no grounds for refusing enforcement in the requested State. A decision certified as an EEO can only be refused enforcement in the very limited case of incompatibility with an earlier decision (Article 21 of the Regulation).

This limitation of the debtor's remedies in the State of enforcement explains why the Regulation imposes " minimum procedural standards "(articles 12 to 19), which must be complied with in cases of tacit recognition of the claim.

For many practitioners, TEE remains a valuable tool despite the general abolition of exequatur by the Brussels I bis Regulation, precisely because of this limitation on the grounds for refusal of enforcement.

In the event of a cross-border dispute involving an uncontested claim, the advice from a specialist lawyer is essential when choosing between the EEO and other European instruments such as the European Payment Order or the European Small Claims Procedure.

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
• ECJ, 14 October 1976, Eurocontrolcase 29/76
• CJEU, 16 June 2016, Pebros Servizi Srl v Aston Martin Lagonda LtdCase C-511/14
• CJEU, 17 December 2015, Imtech Marine BelgiumCase C-300/14
• FERRAND Frédérique, Repertory of civil procedure - European Enforcement OrderDalloz, February 2019
• D'AVOUT Louis, The automatic circulation of enforceable titles imposed by regulation 805/2004 of 21 April 2004Rev. crit. DIP 2006
• BAKER C., The European Enforcement Order: a step forward for the free movement of judgments?JCP 2003