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08/10/2019
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At the Service of the Profession of Judicial Officer in the World since 1952
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Vade Mecum on the European Order for Payment: The Protection of the Defendant

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1. Opposition to the European Order for Payment

Opposition procedure

To protect the defendant, he can lodge a statement of opposition against the claim according to Articles 16 and 17.

Article 16.1 of the Regulation states that the defendant can lodge a statement of opposition to the European order for payment within 30 days of service of the order on the defendant by using Standard Form F as set out in Annex IV which shall be supplied to him together with the European order for payment.

The defendant only needs to lodge a statement of opposition against the order for payment. He does not need to give the grounds of challenge.

According to Article 16.4, the statement of opposition 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.

Period of 30 days

According to Article 16.2 of the Regulation the period starts from the service of the European order of payment to the defendant.

Article 18 states that after this period of thirty days the European order for payment can be enforceable. Moreover Article 17.1 states that if a statement of opposition is entered within thirty days, the proceedings shall continue before the competent courts of the Member State of origin. One can deduce from these two articles that if a statement of opposition if lodged too late, it must be declared inadmissible.

Effects of the opposition procedure

As a consequence of a valid statement of opposition, lodged in the period of thirty days by the defendant, the procedure will continue before the relevant court of the Member State of origin according to the domestic rules concerning civil procedure.  

The claimant can avoid such a procedure if he clearly expressed his wish to end the procedure in such a case. Such a choice might avoid him to support costs that would be disproportionate compare to the amount of the debt to recover.

According to Article 17. 2 of the Regulation, the law of the Member State of origin shall govern the transfer to ordinary civil proceedings. Each Member State must adapt its legislation to determine how to proceed for the transfer from a unilateral European order for payment procedure to a domestic procedure, which is open.

Finally, in order not to harm the interests of the claimant, Article 17.1 paragraph 2 states that “Where the claimant has pursued his claim through the European order for payment procedure, nothing under national law shall prejudice his position in subsequent ordinary civil proceedings.”

The court decision issued after the opposition procedure will circulate among the Member States following the same procedure as a domestic judgement.


2. Review in exceptional cases

Generalities

If the defendant does not lodge a statement of opposition to the European order for payment within thirty days after the service of this act, it becomes irrevocable and cannot be challenged anymore.

However, the European legislator allowed a review in exceptional cases. According to Recital 25, this option cannot be considered as a normal appeal contrary to the opposition procedure. This Recital states that: “(..) Review in exceptional cases should not mean that the defendant is given a second opportunity to oppose the claim. During the review procedure the merits of the claim should not be evaluated beyond the grounds resulting from the exceptional circumstances invoked by the defendant. (…)”. As a result, it has to be strictly interpreted.

Cases of review

Three exceptional cases of review exist:
  • Article 20 1 a) Where “the order for payment was served by one of the methods provided for in Article 14, and service was not effected in sufficient time to enable him to arrange for his defence, without any fault on his part,” As long as the order for payment has not been served, the defendant has thirty days to lodge a statement of opposition. Then, there is no reason to extend the period as long as the service has not been realised.
  • Article 20.1 b): Where “the defendant was prevented from objecting to the claim by reason of force majeure or due to extraordinary circumstances without any fault on his part,” In the EC Regulation 805/2004, the possibility to object the claim by reason of force majeure or extraordinary circumstances is a condition to obtain the certificate of the decision as enforceable title. Concerning the EC Regulation 1896/2006, it offers a possibility to obtain a review of the case before the court of origin that delivered the European Order for Payment.
  • Article 20.2 : “the defendant shall also be entitled to apply for a review of the European order for payment before the competent court in the Member State of origin where the order for payment was clearly wrongly issued, having regard to the requirements laid down in this Regulation, or due to other exceptional circumstances.” In such a case, a review is possible either due to the requirements of the Regulation or due to exceptional cases.

Consequences of the review in exceptional cases

If the court rejects the request of the defendant because none of the conditions to review stated in paragraph 1 and 2 of article 20 is met, the European order for payment is still valid.

On the contrary, if the court decides that the review is justified as one of the conditions of the paragraph 1 or 2 of article 20 is met, the European order for payment is null and void.

Conclusion

In its Article 20, the Regulation organises the cases where a review can be asked by the defendant before the courts of the Member States of origin and its consequences.

The Regulation does not create forms for the review nor explains how the defendant can be informed of his faculty of asking for a review and it does not explain either which court shall deal with the review.


3. Refusal of enforcement (Article 22)

The defendant has means to challenge the enforcement of the European order for payment. This means must be used before the courts of the Member State of enforcement and not in the Member States of origin.

But, as specified in Article 22.3, “Under no circumstances may the European order for payment be reviewed as to its substance in the Member State of enforcement”

Enforcement shall be refused based on two grounds:
  • Incompatibility with an earlier decision
  • If the debtor already paid the amount determined in the European Order for Payment

Incompatibility with an earlier decision

Enforcement shall be refused by the competent court in the Member State of enforcement if the European order for payment is irreconcilable with an earlier decision or order previously given in any Member State or in a third country, if three cumulative conditions are met:
  • The earlier decision or order involved the same cause of action between the same parties;
  • The earlier decision or order fulfils the conditions necessary for its recognition in the Member State of enforcement;
  • The irreconcilability could not have been raised as an objection in the court proceedings in the Member State of origin.

Prior payment

The relevant court of the Member State of execution also refuses enforceability if the defendant already paid to the claimant the amount determined in the European Order for Payment.


4. Stay or limitation of enforcement (Article 23)

According to Article 23 of the Regulation, the defendant, when he asked for a review according to Article 20, can neutralize the execution of the European order for payment by lodging his case with the relevant court of the State of execution. This court is competent to adopt various measures such as to:
  • Limit the enforcement proceedings to protective measures;
  • Make enforcement conditional on the provision of such security as it shall determine;
  • Under exceptional circumstances, stay the enforcement proceedings.

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