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Au service de la profession d’huissier de justice dans le monde depuis 1952
At the Service of the Profession of Judicial Officer in the World since 1952
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Stopovers in Brussels and Abidjan

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The European directive on services (2006/123/CE) of 12 December 2006, more known as the “Bolkestein Directive” from the name of its author, caused a wide-ranging debate within the EU which revealed the extent of the concerns of the professional service providers.

With the passing of time one can observe that the hubbub started by the initial text was gradually dissipated to leave room to a kind of padded torpor, undoubtedly related to the period of publication of the text (November 2005), moderately inciting to the listening of the movements of the topicality.

Admittedly the services of the “bailiffs” (just as the notaries) are excluded from the directive (art. 2.2(l)).

But should we satisfy with what seems to be the result of a success that probably results from some actions of lobbying?

Initially, a first observation is essential.

Being a directive, it only has a normative value which requires for each State an obligation of transposition in the internal legislation.

It would be quite adventurous - it is at least the analysis of the UIHJ - to imagine, on this only restrictive provision of art. 2.2(l) of the directive, that all the sphere of activities of the judicial officers is definitively excluded from the field of the Community text because, let's not forget it - and that is positive - the professional sector of competence of the judicial officers is varied.

Thus, according to the assembly of the presidents of the national chambers of judicial officers of the EU, the services of the judicial officers must conceive themselves under two different aspects.

In their traditional slope - one could say ancestral - the judicial officers intervene (according to the national conceptions) either in the capacity as members of the legal profession, or in the capacity as “public civil servants” i.e. having a delegation of missions of public utility (in fact that of the execution of the enforceable titles and the service of documents).

Likewise, they enjoy a monopoly equal to that conceded to all the agents who take part in the functioning of a State activity.

Therefore, it would not be conceivable that a member of the legal profession, or a “civil servant” fixed with a private statute, appointed by the State, could belong to a device imposing the “freedom of establishment and freedom of movement of the services”, as proposed in the directive.

However, beyond the initial and well-worn concept of the sheriff or the conventional usher, a modern and more open contemporary professional has evolved around the market economy. This evolution resulted in operating a real demarcation between the monopolistic functions and the competing activities of the judicial officer.

These aspects obviously result from the free provision of services.

On this last assumption one could not seriously draw aside the application of the directive on services to our profession.

For the UIHJ, it is even a question of going beyond... Indeed, we believe it is appropriate to assert the content of it because the operation is subtle.

Discuss. To admit the total exclusion of the directive to the judicial officers is to run a risk: that to find ourselves enclosed in the block of a national legal system including the judicial officers members of the legal profession attached to the exclusive service of justice with for only future that being stuck with the enforcement of court decisions and with the residues of the service of documents having survived. Because, let's be realistic, unless we evolve, this is the profile of the judicial officer of 2015.

So long the opening towards debt collection, farewell to all the projects of multi-field judicial officers!

Each one can imagine what follows.

For this reason the UIHJ recommends the greatest vigilance for all the profession, in particular at the time of the votes of the laws of transposition.

It is not necessary to stress the importance of the stakes which take shape.

But Europe could not only focus all our attention.

Indeed, in Abidjan on March 1 2007 a major event occurred.

The presidents of the national chambers or orders of judicial officers of the Ohada zone (Central and Western Africa) unanimously ratified the project of a uniform act on the status of the judicial officer.

The “Ohada zone” holds its name from the treaty given to “the Organization for the harmonization of business laws of in Africa” which joins together 16 State-parts among which 12 are members of the UIHJ  .

It creates a perfectly structured organization with a secretariat, an arbitration court, a training school for Judges, etc.

The Basic Treaty declines several uniform acts (the equivalence of the European regulations) amounting to 9 today.

One of them refers more particularly to the “simplified recovery procedures and measures of execution”.

The project to create a uniform act on a uniform status of the judicial officers, on which worked a group of fellow-members within the UIHJ for more than three years, led to a unanimous agreement of all the National chamber or orders.

The objective thus consists in granting a single status for all the judicial officers of the concerned States.

To propose a project is one thing. To obtain its establishing from the authorities is another story.

Nevertheless, the issue is not utopist and the arguments which were developed are clearly relevant.

At all events, Abidjan will mark a historical step for the profession, which is the only one in Africa to have launched out in such a challenge, moreover warmly greeted by the magistrates and the highest authorities.

After Dakar in November 2006, Africa is definitely in the middle of the dynamics of our profession.

And it is certainly not the author of this heading who will abstain from being satisfied by that.
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Séparateur
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Jacques Isnard

President of the UIHJ

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Stopovers in Brussels and Abidjan
May 2007
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