«Heidi Lindfors Introduction... 346 Regulatory Basis of the European Enforcement Law. 347 Exequatur Yesterday, Today and Tomorrow. 348 Aiming at ...»
The regulation is a wide entity regulating these questions, but in this article the focus is on the suggested provisions concerning the enforcement. With the help of the regulation the idea is to ensure not only the enforceability of the judgment concerning maintenance throughout the Union, but also the enforcement of the judgment in a simple and uniform manner. This demands provisions directly affecting enforcement. Naturally in this proposal exequatur as a prerequisite for the enforcement of a decision has also been abandoned. A copy of the decision meeting all the necessary requirements for verifying the authencity is acceptable as grounds for the enforcement. An extract which a competent authority has drawn using the standard form attached to the regulation, is also needed. Legalising documents or similar formalities are not required in the enforcement, nor do the documents need to be translated into the language of the Member State of enforcement. This proposal for a regulation also follows the common principle of the European enforcement law in that the correctness of the substantive decision will not be examined in the enforcement.
The injunction of the re-examination does not, however, stop the enforcement organ from only partially collecting maintenance claims, if collecting the amount in full would infringe on such wealth of the person liable to provide maintenance, which must not be attached according to the law of the Member State of enforcement.
After coming into force, the regulation would also have a direct effect on the enforcement for that part that contains a provision about the ranking of the claims, in other words, about the order, in which the claims are paid from the assets received from the debtor in the enforcement. According to the proposal, the maintenance claims should be paid before all the other debts of the person liable to provide maintenance, including debts caused by the enforcement expenses of the judgments. Staying the enforcement proceedings will prevent the payment of maintenance to the person entitled to it. Therefore, in the regulation proposal the jurisdiction of the enforcement authority is limited by regulating individually those reasons entitling one to limit or postpone the enforcement or refuse it altogether. In the provision the grounds are listed exhaustively, the enforcement authority is left with no discretionary power to stay or limit the enforcement proceedings for other reasons. The enforcement authority will still have discretionary power in regard to how the enforcement is limited.
It is possible to safeguard the rights of the person liable to provide maintenance, refuse the enforcement or postpone or limit it, if the person liable to provide
maintenance has already paid the debt or if the right to get the judgment enforced has fallen under the statute of limitations. Also a conflict of the judgment with that recognised in the Member State of enforcement entitles one to refuse or limit the enforcement. In addition if the person liable to provide maintenance has, according to the regulation, asked for the judgment to be re-examined19 and the proceedings of the case have not been finished, it is possible to stay or limit the enforcement proceedings.
The proposal for the regulation concerning maintenance is also significant in European enforcement law because, after coming into force in the proposed form, it would bring into the equation the selection of the cross-border enforcement orders given by a court, which will be comparable to debt recovery for their effects. Currently, in the international debt recovery there is a principle of territorial jurisdiction as a main rule, which emphasizes the sovereignty of a state. According to the principle of territoriality the enforcement authority has jurisdiction only in its own country and the attachment performed only has a legal effect in the country of the enforcement authority. On the other hand, the principle of territoriality does not have an equally strong position in all the Member States of the European Union.20 Cross-border orders, comparable to attachment in their effects, contribute to the weakening of the principle of territoriality.
The proposal for the regulation would allow the court giving a maintenance judgment to give an order for monthly direct payments to the employer or the bank of the person liable to provide maintenance in another Member State, where, he or she has a bank account. The order is comparable in its effects to the attachment of salary or assets in a bank account. Even though in many Member States comparable procedures are possible even now, the regulation would ensure that such an enforcement procedure will be in use throughout the European Union. The court that imposed the maintenance could thus give, in addition to a directly enforceable judgment, an order directly affecting enforcement. In other words, the court that handled the case has the right to order the maintenance to be paid from particular property of the debtor. This means a fundamental change in Finnish law. Choosing the enforcement measures and property to be foreclosed would no longer be at the sole discretion of the enforcement authority.21 Moreover, the interim safeguarding of 19 The re-examination of the judgment does not mean an appeal. According to the proposal for a regulation, the question of re-examination is only under exceptional conditions, where one does not know if the defendant absent from the court received the application for a summons at all, or whether the defendant has not been able to oppose to the maintenance claim because of force majeure or because of the exceptional conditions independent of him or her. A demand for re-examination of the judgment stops all the enforcement procedures.
20 Hess, Burkhard, Study on making more efficient the enforcement of judicial decisions within European Union: Transparency of a Debtor’s Assets, Attachment of Bank Accounts, Provisional Enforcement and protective Measures. Version of 2/28/2004, p. 10-12 and Hess, Burkhard, Comparative Analysis of the National Reports, in Enforcement Agency Practice in Europe- JAI/02/FPC/19/UK, The British Institute of International and Comparative Law 2005, p. 25-26.
21 In Finland the distrainer decides as a principle rule the debtor’s property to be foreclosed to deal with the pecuniary claims. The distrainer’s power to decide is still affected by, for Scandinavian Studies In Law © 1999-2012 356 Heidi Lindfors: Cross-border Enforcement in the European Framework maintenance claims would be possible, according to the proposal for the regulation, by a court of the Member State of origin. To protect the person entitled to the maintenance, the court handling the case could give an order for temporary freezing of the bank account of the person liable to provide maintenance in another Member State, with the aim of preventing destroying and hiding assets of the person liable to provide maintenance.
5 European Enforcement Law and its Research
In future the principle of territoriality will probably be increasingly weakened in the European Union. The trend seems to be towards cross-border orders being comparable to attachment in their effects as an ever more usual model to make enforcement more efficient in the European Union. The Commission is preparing a Green Paper on the attachment of assets in a bank account.22 It deals with improving the collection of pecuniary claims in the EU and proposes creating a European system for the attachment of assets in a bank account. There are various alternatives for forming the system and these are presented in the Green Paper.
One can ask how does the Europeanisation of enforcement appear in the enforcement law research. In the beginning, I already stated that the enforcement of judgments has so far been seldom researched in international civil procedural law.23 Following the principle of territoriality and the paucity of cross-national regulations have been natural explanations as to why the subject has been sidelined in research. The development of the legislation of the European Union in the past few years has, however, started to clearly show the meaning of enforcement law as a necessary element of international activities. The interest in European enforcement law as a research subject will undoubtedly grow with the new regulations. Enforcement law is no longer isolated national legislation, but is becoming increasingly connected to general European Union law all the time.
The invasion of European legislation in debt recovery law appears to take place one step at a time. The all-embracing harmonisation of enforcement procedures would be a demanding task, though, because of the differences in the national systems, and a task which would, no doubt, meet with considerable resistance in the Member States. The main rule is still the execution of the example, the order of foreclosure decreed by law. An exception from the main rule is the mortgage judgment where the judgment given by the court includes the foreclosure of the property given as security. A mortgage judgment can only be given when the suit calls for a repayment from the individualised property given as security for the claims, most typically from real estate.
22 Green Paper on Enforcement: A European system for the attachment of bank accounts. At the time of writing this article, the Green Paper had not yet been published.
23 However, interest has arisen of late in international private law research also concerning questions about the choice of law rules of foreclosure. See Koulu, Risto, Uusia statuutteja kansainväliseen yksityisoikeuteen in Business Law Forum, Helsingin yliopiston yksityisoikeuden laitos and Edita, Helsinki 2006, 9-23.
Scandinavian Studies In Law © 1999-2012 Heidi Lindfors: Cross-border Enforcement in the European Framework 357 enforcement following the national procedure provisions of the law (lex fori ex auctoritate juris executionis) of the Member State of enforcement, but the national provisions must give way to those of the EU that conflict with them. In addition to the provisions that extend their influence to the direct enforcement procedure, the EU regulating effect in debt recovery law is also visible in the fact that the direct enforcement of debt recovery grounds given in another Member State, or other orders given in one Member State is ever more increasingly presumed to be followed as such in other Member States. Currently, a direct cross-border enforcement is made possible by the grounds for debt recovery, through court proceedings and similar processes following national provisions, even though EU provisions set certain minimum standards for a national procedure. In future, the grounds for debt recovery ensuring direct cross-border enforcement can also come about through special processes based on EU regulations. Provisions making direct enforcement possible and those affecting directly enforcement currently form the basis for the European enforcement law.
The European enforcement law may draw its theoretical matrix, its legal principles and legal doctrine from common European Union law and from its case law. Still currently it is difficult to examine European enforcement law completely separately from any individual national enforcement law, because the basis built on the EU regulations has not had time to become all-embracing.
The enforcement of a foreign judgment as a procedure is still mainly based on national provisions. The step-by-step progress should not, however, be belittled.
The most important thing is the direction of the progress and it clearly indicates the creation of European enforcement law at a surprising speed. The collective procedures connected to business activities, in other words bankruptcy and business reorganization were the natural research targets of EU regulation in the field of insolvency law only a couple of years ago.24 The birth of the European enforcement law is strongly linked to making it easier for judgments to move freely, removing the enforcement hindrances and making it more efficient for the cross-border enforcement in the EU. Procedural intermediate phases will be removed and regulating will be made more uniform, so that crossing national borders would cause as little inconvenience as possible in implementing the rights confirmed by the judgment. The effortless movement of the judgments may well become the leading principle of European enforcement law. This principle would be genuinely understood as an optimising order leading to choose from the possible alternative interpretations of the provisions one which will make cross-border enforcement easiest.
The future will show if the formation of the regulatory basis of the European enforcement law will continue as swiftly as has happened lately. It is obvious that the possible slowing down would not, at least, be an outcome of the minor importance of the subject. The right of the creditor does not materialise until the obligation given by the judgment is in fact met. Without the possibility of enforcement, performing the obligation confirmed by the judgment could often depend on the goodwill and the sense of duty of the defendant. This statement 24 Koulu, Risto, Den insolvensrättsliga forskningen i går, i dag och i morgon, Tidskrift utgiven av Juridiska föreningen i Finland 2004, p. 680.
also rings true in international matters. In the EU where efforts have been made to advance the free movement of people, goods and services, it would be downright absurd if crossing the borders of individual states would significantly make matters worse and slow down the enforcement of a legitimate claim.
European enforcement law has really earned its place, also as a new research subject.