One of the main purposes of the creation of the European Union is the establishment of a single market between the subjects of the Member States that allows the free flow of capital, goods, services and persons. This provides the opportunity for free establishment and development of connections between the subjects, which stimulates the growth of commercial, civil, real and other legal relations.
In order to guarantee the lawful execution of the established relations, it is necessary to create a legislative system which can be applied in case of arisen disputes. Regulation No. 1896/2006, which regards the European order for payment, as well as every other Regulation, is a source of secondary law of the European Union. It contains obligatory provisions with general nature which are applied directly – it is not necessary for them to be implemented in the national legislation. From the moment of entering into force, the Regulation becomes applicable law, is obligatory, and is applied to every Member State except Denmark.
With this document the European order for payment procedure is introduced. This procedure poses an enforcement order for pecuniary claims, deriving from contractual obligations, which have not been contested. The purpose of this procedure is to create a unified, facilitated in terms of costs, simplified and accelerated mechanism which can be applied to cross-border cases that deal with uncontested pecuniary claims. Undoubtedly, one of the main advantages of the European order for payment is the elimination of the need of exequatur proceedings.
А cross-border case is one in which at least one of the parties is domiciled, in accordance with Regulation No. 44/2001, or habitually resident in a Member State other than the Member State of the seized court. The nature of the case (whether it is cross-border or not) is determined at the moment of lodging the application for a European order of payment.
The European order for payment provides the creditor an opportunity to benefit from the procedure without depriving them of the possibility to use other legal mechanisms for the defence of their claim. However, the European order for payment procedure is applicable only regarding pecuniary claims, regardless of their size.
Regulation No. 1896/2006 is applicable regarding civil and commercial matters in relation to cross-border disputes regardless of the nature of the court or the judicial authority. The Regulation does not encompass matters, connected with income, customhouses and administrative matters or the state’s liability for actions and inactions when exercising the state authority. Regulation No. 1896/2006 is also not applicable regarding: 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; social security; 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 procedure is strictly formal. Compliance with the prescriptions directly affects the validity of the procedure. The jurisdiction of the court is determined in accordance with another European Union act – Regulation No. 44/2001, which determines the jurisdiction in different cases. This matter will be regarded in a separate article.
In an open court hearing the court having jurisdiction checks whether the Regulation’s requirements have been met. The court can rule the issuance of a European payment order, request that the claimant completes or rectifies the application or can reject the application. There is no right of appeal against the rejection of the application. This does not prevent the claimant from pursuing the claim by means of a new application. If all the requirements have been met, the court issues a European order for payment.
The court ruling usually takes about 30 days from the submission of the application for a European order for payment. The court notifies the debtor of two possibilities for action: the debtor can pay the due amounts or they can send a statement of opposition within a time limit of 30 days if they wish to contest the claim. The debtor is informed that the order is issued solely on the basis of the information which was provided by the claimant and was not verified by the court. The debtor is also informed that the order will become enforceable unless a statement of opposition has been lodged. If this happens, the proceeding shall continue in accordance with the rules of ordinary civil procedure.
If the debtor lodges a statement of opposition within the time limit of 30 days, the proceedings continue in accordance with the rules of ordinary civil procedure unless the claimant has explicitly requested that the proceedings be terminated in that event. If the debtor does not lodge such a statement of opposition, the court shall declare the European order for payment enforceable.
The introduced by Regulation No. 1896/2006 European order for payment provides an alternative opportunity for enforcement of pecuniary claims. This procedure is a simplified procedure in terms of service costs typical for the ordinary civil procedure and in terms of the procedure which does not require exequatur. It is precisely these juridical possibilities, which guarantee the enforcement, that create the conditions for eliminating factual boundaries and ensure cross-border freedom in creating, developing and executing legal relations in the civil and commercial turnover.