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College 2 - Week 6
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Nationaal en internationaal procederen – week 6 – college 2 – dinsdag 9 februari ’21Also today's meeting will be over the European cross border procedure, the second generation. instruments and, in
particular, to have them the European order for payment, and the European small claims procedure and in the second part.
We will discuss about service of documents that is relevant, also in the framework of this European procedures, but also for
other type of litigation that involves a cross border element so looking at the regulation, but also where there are
differences at The Hague service Convention from 1965.
Brussel I-bis & Special European Procedures
Now, starting with a small introduction within European Special Procedures and its relation or their relation to the Brussels
one piece well. Mainly civil procedure is by excellence national rules, but in cross border situation, this leads to a lot of
differences but also difficulties for parties and, while some instruments as the process, one piece has facilitated some
aspects of cross border legit litigation, such as clarifying jurisdiction rules and facilitated recognition enforcement. Still
number of issues remain difficult, especially course long duration of procedures, knowing which type of specific procedure
can be used in a specific country. So starting with 2004 specific instruments were adopted by the European Union to
facilitate specific type of cross border litigation, such as uncontested claims and you discussed previously about European
Enforcement Order (EEO) and some lecture ago also about the European account preservation order that was adopted in
2014 both these instruments lead two titles that secure certain enforcement, but are not leading to let's say a full
procedure to enforce so the European account preservation order facilitating Enforcement because it attaches assets that
would be a later executed, why do opinion enforcement order only facilitates the enforcement stage by certification of a
national procedure that satisfied certain characteristics.
European Uniform Procedures (EOP-ESCP-EAPO)
Common key features: Well, the European order for payment, and the European small place procedure practically propose
a uniform framework for obtaining a title that is important so full procedure. And to look at some key characteristics of the
European Order for payments more claims procedure, but also the European account preservation order. All three of them
seek to provide simplicity for parties in cross border situation while respecting the right to a fair trial and right to the
defendant in accessing justice as well, there are optional instruments and they're limited to cross border cases, that means
that they do not replace national procedure they remain available for parties to choose, so, in certain circumstances,
national procedure is more appropriate or leads to faster outcome, the party can choose. They're all written procedure,
with the exception of the European small claims’ procedure, and in this the hearing that it's limited to whether it is
requested by the party and considered necessary. They rely on standard forms that are available in all the official languages
of the European Union. Legally presentation non mandatory so parties can still choose to use the lower, but it is not
mandatory and i'm sure you're aware that in certain systems lawyers are compulsory throughout the whole process. In
the Netherlands as well lawyers are required in quite a number of procedures and stages, while, for example in Romania
lawyers use a lawyer is not compulsory, not even before the Supreme Court what parties do rely on lawyers to a significant
extent.
They also set time limitation for various steps in order to speed up procedures and they provide special rules with regards
to the methods of service to be used at national level, in conjunction with the service regulation. And they propose a special
review procedure for exceptional cases that I will turn to later on. And in comparison, to the rest, this one this a regulation,
they do not provide the grounds for. Preventing enforcement, except for the reconcile ability of judgments so it's much
more restricted the possibility of preventing enforcement under this procedure. However, although they propose a uniform
framework of rules, they also need to rely for specific aspects on national civil procedure rules, and indeed the approach of
Member States is quite diverse across the Union, and I will give you some examples.
National Procedural Rules Do Play a Role in the Application of these regulations – EOP and ESCP example:
Belgian and easily rely on the direct effect of the regulation, so there was no specific.
Legislation or specific articles introducing that procedural codes to facilitate their application, this means that.
Which national rules would be used to complete specific procedural aspect, such as the cost of the procedures or which
national court is competent is left to the general procedural rules and today interpretation of the judge, to a certain extent,
and this can lead to variation between courts. There are systems that implemented specific legislation for their application.
For example, in the Netherlands, the measures were adopted quite soon after the regulation entered into force in 2009
while in Romania that's happened only 2020. And there are systems that just Luxembourg and also France that introduce
specific provisions within their procedural code. So you see, there is a diversity of approaches, although the procedures
themselves want to be uniform.
Dutch National Implementation Laws
Now zooming a bit into the national situation in the Netherlands. The implementation laws addresses number of aspects
such as which national court is competent to do with this procedures, for example, for the European order for payment,
this will be the Court in the head the District Court. For the European smokeless procedure, it will be the ‘kantonrechter’,
within the district courts, they also set specific rules with regards to service, while in other civil and commercial cases it is
the party that will have to serve the procedure on the defendant within this procedure, it is the Court that has the duty to
, serve which, in practice, sometimes has led to some difficulties, especially for the European small claims procedure where
the primary means of serving documents is by post with acknowledgement of receipt. And receiving bank this
acknowledgement of receipt is sometimes challenging in order to know whether the defendant is aware of the process or
not. It also sets rules with regard to the payment or court fees and the process of certification or receiving certification of
the enforceable title from other countries in order to proceed to execution. So these are the aspects in the to
implementation rules that have been addressed this doesn't mean that there are no other aspects that required application
of national law. Should there be a situation when the implementation law does not contain a specific provision, then the
judge would need to rely on the general procedural rules to apply this European procedures.
European Order for Payment Procedure – Europese Betalingsbevelprocedure
Turning to the European order for payment. They have been order for pain procedure is limited to the recovery of
uncontested that convert contractual uncontested that, and this is a difference compared to the scope of the process, one
piece where non contractual claims are also covered. Why this procedure that focuses on uncontested debts, because it
was considered that the process is at national level for facilitating recovery of uncontested debts are too long because
you're also that this regulation was adopted when for the process, one the X equal to was still in place, so it sought to
facilitate also the the enforcement by abolishing the grounds or preventing Recognition, Enforcement it is limited to cross
border cases and in looking at the definition of cross border cases it requires that at least one of the parties is domiciled or
habitual resident in another Member State than that of the Court ceased shoot the party's be in the same country. They
would not be able to rely on this procedure also this procedure would not be considered cross border within the definition
of dysregulation a, for example, a party in a third country choses to be dummy sat at his lawyer in one of the Member
States also in this situation, it would not be considered to be a cross border case within the framework of this regulation.
Usually from research, I have carried out on the application of this regulation, it is hardly the case of this type of cases when
the party seek to create a cross border case or to choose don't we start with the lawyer are quite limited so it's it's not.
Often, that it happens, however it's sometimes tried by by parties, but it should not be handled according to this regulation.
As a model of procedure, the European order for payment is a one sided one step procedure, this means that it is sufficient
for the claimant to file the claim form with the Court and the Court will analyze it and issued a decision, the defendant is
not aware of the title of the European order for payment until this has been issued by the Court. And once it has issued and
the defendant is important, he has the possibility to oppose it.
EOP – Conduct of Procedure – Request at compent court – standard Form A (art. 6-7)
Looking at how the procedure is conducted well. The claimant will fill in a standard for A, that is, next to the regulation
filling in all the information that is required by the form and is in conformity with Article 6 and 7 or FDA regulation. The
Court is requested to examine this request as soon as possible. And in this examination, the regulation requires that formal
requirements are met so by the order information is contained in the form and whether from the information provided by
the claim, and it appears that it is grounded. It also allows the textbook the regulation and analysis that is done
automatically this might be or half is our aging in how the special order for pain procedure is handled in Germany that leads
to almost an automatic issuance of a title, it is carried out by the color. However, until now, there has not been an actually
automatic handling of this procedures in terms of decision issues so by technology, however, the procedures seem to make
it possible should this be the case in the future. And though the order for payment has to be issued, based on the
information that is contained in the forms of the claimant is not requested to submit evidence, together with the claim for.
The Court of Justice in the Pandora case, one of the one let's say the latest decision regarding dysregulation concluded that
in specific situations such as the one in that case where loan agreement was concerned, between a company and consumer
that the Court may request by using form be additional information to the claimant including submitting a copy of that
contract that is an issue and why the Court requested to have additional information on the contract, it was related to them
unfair terms Directive were for consumers, the Court has to analyze extra fee to whether they are unfair terms in the
contract and how the interest was calculated for the party, the claimant refuse and the national court filed request to with
the Court of Justice in wanting to know whether Article seven, two of the European order for payment regulation would
also allow the Court, the national court to ask this additional type of information that would lead also to the actual physical
submission of evidence. And the court in this case responded that the request of the Court was not against Article 72 and
was in line with the purpose of the unfair items directive and Article 38 of the Charter fundamental right, so it was a
decision where the interpretation of the Court needed to balance the the interest of the parties, the what the procedure is
seeking to achieve a fast decision, but at the same time protecting the data and the weaker party in that type of agreement.
Yes, how does this balancing of the interest of the parties work if the examination is done automatically? That's a very good
question. And I think it has to do with the fact. That I still national systems are quite diverse so in certain tational system
this type of procedures summary procedures are based on evidence, as was a request, so the Court will issue which will
issue the order would look into the documents, whether it feels it is grounded is founded the claim, while in other systems,
such as the German one. The handling is let's say pretty much, just checking whether all the information is there and
looking less of how funded that claim is, it is then left to the defendant that is informed of the title to contest it. And this is
where the automatic let's say handling is in place, should there be a fully automatic handling. I think they're very important
is to make sure that the defendant is aware of his writing of the title that is issuing in order to contest, so it is a difficult
balancing of rights when you have an automatic title issued based on the fact that all the information is in the form, but
how grounded that information is with regards to the substance of the claim. So there is no absolute answer to this, but is it
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