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08/10/2019
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Vade Mecum on the European Order for Payment: Procedure

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1. Specificities

Unilateral procedure

The European Order for Payment procedure is a unilateral procedure introduced by a creditor. This one must only give precise information concerning the claim to allow the defendant to decide to file opposition at the claim or not to do so. In fact, the competent court does not proceed to a thorough examination of the request to deliver the order for payment but bases its decision only on the application form.

It is an efficient tool for the claimant in case the defendant does not pay. The Regulation places all the responsibility on the defendant. If he does not react by using the opposition procedure, the claimant will benefit from a decision enforceable in each and every country of the European Union.

The application can be made by the claimant or his representative

Article 7.6 states that “The application shall be signed by the claimant or, where applicable, by his representative.”

The ratio legis of this provision is to organise a simple, quick and efficient procedure based on the use of standard forms concerning the recovery of uncontested debts. Thus, it seems normal to give to the claimant the opportunity to sign the application for a European order for payment on his own.

However, the claimant can face several issues while filling in the forms in an appropriate manner. In such a case, he should contact a professional, for example a judicial officer.

Forms

The Regulation provides standard forms to facilitate the procedure and to allow the use of new technologies.

As the procedure is unilateral and can be used directly by the sole claimant, it was necessary for the legislator to set up a very simple and easily accessible procedure.

The legislator created 7 standard forms in 7 Annexes to the Regulation:

Given that, the court must check the application, including jurisdiction and description of the evidence, based on the elements written in the standard form A, the claimant shall not abuse by using such a procedure.

Therefore, Article 7.3 of the Regulation states that “In the application, the claimant shall declare that the information provided is true to the best of his knowledge and belief and shall acknowledge that any deliberate false statement could lead to appropriate penalties under the law of the Member State of origin.”

Evidence

In the application, the claimant must provide specific information to identify and prove the debt so that, if relevant, the defendant can challenge the decision. He must also provide a description of the evidences in support of his claim. However, evidences themselves shall not be attached to the application.

Subsidiary role of the domestic procedural law

Even in the case of a European procedure, the Regulation defines cases in which domestic laws apply concerning specific details. It is the case in the following articles:
  • Article 7.3: “the claimant (…) shall acknowledge that any deliberate false statement could lead to appropriate penalties under the law of the Member State of origin.”
  • Article 7.5: “the application shall be submitted (…) by any other means of communication, (…), accepted by the Member State of origin”
  • Article 12.5: “The court shall ensure that the order is served on the defendant in accordance with national law (...)”.
  • Article 17.2: “The transfer to ordinary civil proceedings within the meaning of paragraph 1 shall be governed by the law of the Member State of origin.”
  • Article 18.2: “(…) the formal requirements for enforceability shall be governed by the law of the Member State of origin.”
  • Finally, in its Article 26, the Regulation explicitly states that “All procedural issues not specifically dealt with in this Regulation shall be governed by national law.”

 Claims arising before the entry into force of the Regulation

As the Regulation does not limit its scope to claims that aroused after its entry into force, one can assume that a claim that aroused before can be submitted to the European Order for Payment procedure. 


2. Conditions

Pecuniary claims for a specific amount that have fallen due

Article 4 explicitly explains that only pecuniary claims for a specific amount that have fallen due at the time when the application for a European order for payment can submitted.

The regulation is not applicable for obligation to do or not to do something.

In the form, there is a line for the main amount (point 6), a line for the interests (point 7), a line for contractual penalties (point 8) and a line for the fees (point 9). Therefore, the amounts claimed must be determinable when a European order for payment is introduced.

Uncontested claim

Article 1.1 states that: “The purpose of this Regulation is to simplify, speed up and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims by creating a European order for payment procedure”.

The contested or uncontested nature of the claims depends on the behaviour of the defendant. If he does not object to the European order for payment, the claim can be considered uncontested. On the contrary, if the defendant opposes the order, the uncontested nature of the claim disappears.

The contested or uncontested nature of the claim is not definitely determined at the time of the application but during the European Order for Payment procedure, which is an important difference compared to the Regulation concerning the European Enforcement Order.

No limitation of the amount

The Regulation does not set any debt ceiling to introduce an application of order for payment.

Therefore, the claimant can introduce an application of order for payment for small amount but also for significant debts.


3. Application for a European Order for Payment (Article 7)

Mandatory information that should be included in the application

The application has to be made by using Standard Form A, set out in Annex 1.

The application shall state:
  • The names and addresses of the parties, and, where applicable, their representatives, and of the court to which the application is made;
  • The amount of the claim (including the principal and, interest, contractual penalties and costs);
  • The interest rate and the period of time for which that interest is demanded
  • The cause of the action
  • A description of evidence supporting the claim
  • The grounds for jurisdiction
  • The cross-border nature of the case within the meaning of Article 3.

Opposition to the transfer to ordinary civil proceedings according to Article 17

In an appendix attached to the claim, the claimant is entitled to inform the court that he refuses the transfer to ordinary civil procedure as organised by Article 17 of the Regulation if the defendant decides to lodge a statement of opposition.

The claimant keeps this option throughout the process until the delivery of the order for payment.

Signature of the application

According to Article 7.6, the application shall be signed by the claimant or, where applicable, by his representative.
If the application is introduced by electronic means, it should be signed in accordance with article 2 paragraph 2 of the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures. This signature is recognised in the Member State of origin, which cannot ask for supplementary conditions.

Submission of the application

According to Article 7.5 of the Regulation, the application shall be submitted in paper form or by any other means of communication, including electronic, accepted by the Member State of origin and available to the court of origin.

According to Article 29 of the Regulation, Member States shall communicate to the Commission which courts have jurisdiction to issue a European Order for Payment.

These communications are available on the website of the European Judicial Atlas in civil matters, which is regularly updated.

Competent court to deliver a European Order for Payment
 
According to the Brussels I Regulation and now Brussels I Recast Regulation, the court where the defendant is domiciled has jurisdiction.


4. Examination of the application

Article 8 of the Regulation explains that “The court seised of an application for a European order for payment shall examine, as soon as possible and on the basis of the application form, whether the requirements set out in Articles 2, 3, 4, 6 and 7 are met and whether the claim appears to be founded. This examination may take the form of an automated procedure.”

It means that the court must check if the application falls under the scope of the Regulation (Article 2), if it is a transborder case (Article 3), which concerned a pecuniary claim for a specific amount that have fallen due (Article 4) and if it has jurisdiction according to international rules (Article 6). Finally, the court must check if the claimant accurately filled in the Standard Form A set out in Annex I (Article 7).


5. Completion and rectification

Article 9 of the Regulation offers to the claimant, the possibility to complete or rectify the application when the conditions of Article 7 are not met.

In such a case, the court will use Standard Form B set out in Annex II.

The claimant will have to complete or rectify his application within a time determined by the court.


6.  Modification of the application

Article 10 of the Regulation states that if the requirements referred to in Article 8 are met for only part of the claim, the court shall inform the claimant to that effect, using Standard Form C as set out in Annex III.

In such a case, the claimant can accept or refuse the proposal for a European order for payment made by the court. According to Article 9.2, the claimant has to use Standard Form C as set out in Annex III in a period determined by the court.

If the claimant accepts the proposal, the judge will issue an order for payment. Domestic laws deal with the consequences for the rest of the amount.

In case the claimant does not reply in the fixed period or if he refuses the offer made by the court, this one rejects the application for a European order for payment in its entirety.


7. Rejection of the application

Article 11 of the Regulation lists the cases when courts reject the application for a European Order for Payment:
  • The requirements set out in Articles 2, 3, 4, 6 and 7 are not met;
  • The claim is clearly unfounded;
  • The claimant fails to send his reply within the time limit specified by the court under Article 9(2);
  • The claimant fails to send his reply within the time limit specified by the court or refuses the court's proposal, in accordance with Article 10.

The claimant is informed of the reasons of rejection by means of Standard Form D set out in Annex IV.

The decision of rejection cannot be challenged. The rejection is thus permanent. However, this rejection does not prevent the claimant from applying for a new European Order for Payment or for any other national procedure available according to the domestic law of its Member State.


8.  Issue of a European Order for Payment (Article 12)

Period

The court shall issue a European Order for Payment as soon as possible and normally within 30 days of the lodging of the application.

This period can be extended for the period given by the court to the claimant to complete or rectify his application.

Form of the order for payment

The order of payment is issued by using Standard Form E set out in Annex V of the Regulation.

It is delivered together with a copy of the form of the application

Information given to the defendant
 
In the European order for payment: the defendant shall be advised of his options to:
  • Pay the amount indicated in the order to the claimant;
  • Oppose the order by lodging with the court of origin a statement of opposition,

In the European Order for Payment, the defendant shall be informed that:
  • The order was issued solely on the basis of the information, which was provided by the claimant and was not verified by the court;
  • The order will become enforceable unless a statement of opposition has been lodged with the court
  • Where a statement of opposition is lodged, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure unless the claimant has explicitly requested that the proceedings be terminated in that event.

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