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HomeSéparateurInformationsSéparateurToolkit on Euroopean Order for PaymentSéparateurPresentation of EC Regulation 1896/2006
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Presentation of EC Regulation 1896/2006

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Présentation
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Toolkit on the European Order for Payment: Presentation of EC Regulation 1896/2006
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1. Source
 
The information contained in the European Judicial Atlas are currently migrating towards the European e-Justice Portal.
 
From March 2016, most of the information will be only available on the Europea, e-Justice Portal.
 
 
 
 
 
2. Introduction: Creation of a genuine European civil procedure
 
Purpose of the Regulation

Recital 6 explains the purposes of the Regulation by stating: “The swift and efficient recovery of outstanding debts over which no legal controversy exists is of paramount importance for economic operators in the European Union, as late payments constitute a major reason for insolvency threatening the survival of businesses, particularly small and medium-sized enterprises, and resulting in numerous job losses.

As long as the content of domestic laws and their efficiency vary significantly from a Member State to another, there is a need to set up a European law that would guarantee identical conditions to all the debtors and the creditors throughout the European Union.

Complementary and optional nature of the Regulation

Article 1,3 of the Regulation states that “This Regulation shall not prevent a claimant from pursuing a claim within the meaning of Article 4 by making use of another procedure available under the law of a Member State or under Community law.

The claimant, when he fulfils conditions to obtain a European order for payment can also resort to domestic procedures to recover his debt or resort to domestic order of payment of his own country. In such a case, he will not benefit directly from a European title. He has to claim in the country that issued the decision for a certificate according to the EC Regulation 805/2004 , or according to the EU Regulation 1215/2012 , so called Brussels I a.

Moreover, the claimant still has the possibility according to article 11,3 of the Regulation to apply for a European Order for Payment or to any other procedure of the domestic law of a Member State.

This is explained in Recital 10 of the Regulation that states “The procedure established by this Regulation should serve as an additional and optional means for the claimant, who remains free to resort to a procedure provided for by national law. Accordingly, this Regulation neither replaces nor harmonises the existing mechanisms for the recovery of uncontested claims under national law.

Cost of the procedure

Article 25 explains in its first paragraph the order of magnitude “The combined court fees of a European order for payment procedure and of the ordinary civil proceedings that ensue in the event of a statement of opposition to a European order for payment in a Member State shall not exceed the court fees of ordinary civil proceedings without a preceding European order for payment procedure in that Member State.

The Regulation gives an explanation of court fees in its second paragraph: “court fees shall comprise fees and charges to be paid to the court, the amount of which is fixed in accordance with national law.”
 

3. Object

To simplify, to speed up, to reduce the cost

These are the goals of the regulation that are mentioned in its first article. The idea is to simplify, to speed up and to reduce the cost of litigations in cross-border disputes concerning uncontested pecuniary claims by creating a European order for payment procedure. The wording of article 4 of the EC regulation 1896/2006 also makes it obvious as it states: “The European order for payment procedure shall be established for the collection of pecuniary claims for a specific amount that have fallen due at the time when the application for a European order for payment is submitted.

To ensure free movements of orders of payment


The Regulation also aims to ensure free movements of orders of payment among Member States by creating minimum standards. The respect of these standards makes intermediary procedures prior to execution or recognition in the State of execution unnecessary.
 

4. Scope

Member States

According to article 69 of the Treaty of the European Union, the Regulation does not apply directly to Denmark, The United Kingdom and Ireland.

However, as stated in Recital 31 of the EC Regulation 1896/2006, The United Kingdom and Ireland expressed their wish to participate in the adoption and application of the Regulation, in accordance with article 3 of the Protocol Annexed to the Treaty on European Union and to the Treaty establishing the European Community.

Denmark is thus the only Member State in which the Regulation is not applicable.

Scope rationae materiae

The subjects dealt with in the EC Regulation 1896/2006 are listed in its article 2.

It states: “This Regulation shall apply to civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (‘acta iure imperii').”

This article is almost a complete replica of article 2 of the EC regulation 805/2004, which deals with the scope of this text. But, this provision differs from the EU Regulation 1215/2012, which does not exclude acta jure imperii.

Some subjects are explicitly excluded from the scope of the Regulation: rights in property arising out of a matrimonial relationship, wills and succession, bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings. Are also excluded: claims arising from non-contractual obligations, unless they have been the subject of an agreement between the parties or there has been an admission of debt, or they relate to liquidated debts arising from joint ownership of property.

The EC Regulation 1896/2006 does not explicitly exclude arbitration from its scope while it is excluded from the scope of the EC Regulation 805/2004. Arbitration can be considered as de facto excluded from the scope of the EC Regulation 1896/2006.

Cross-borders situations

Unlike the EC Regulation 805/2004 concerning European Enforcement Order, the Regulation concerning European order for payment procedure is only applicable to cross-borders disputes.
The Regulation explains in it article 3 that as cross-borders dispute is a dispute “in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised.”

The Regulation does not give any definition of the notion of “habitual residence” which can lead to legal uncertainty.
 

5.  Competence

Generalities

Jurisdiction is dealt with in article 6 of the Regulation.

The 1st paragraph specifies that jurisdiction is determined according to the applicable rules of the European Union, especially, the EU Regulation 1215/2012 (so-called Brussels I a).

Specificities for the consumer

According to article 6.2 of the Regulation, when the defendant is a consumer who concluded a contract “for a purpose which can be regarded as being outside his trade or profession”, only the courts of the Member State where he is domiciled according to article 62 of the EU Regulation 1215/2015 have jurisdictions.

The Regulation is stricter than the EU Regulation 1215/2012 that allows minor exemptions to this principle.
 
 
6. Where to find the documents?
 
The European Commission established the European Judicial Atlas in civil matters which provides to citizen and practitioner an easy access to important practical information for judicial cooperation in civil matters.
 
The site is accessible in 22 of the 24 official languages of the European Union (Cratian and Danish are missing)
 
For a direct access to the information on the Regulation:
 
 
The left column gives access to the following information:
 The information contained in the European Judicial Atlas are currently migrating towards the European e-Justice Portal.

From March 2016, most of the information will be only available on the e-Justice Portal.
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