Reasons for introduction of the order for payment procedure
This procedure will make it possible for the creditor to claim his undisputed takings against debtors in all EU-member countries where the Regulation applies. The implementation of such legal procedure in the law systems of the European countries enables creditors to avoid the complex and differing from country to country regular civil law claims proceedings. Under the uniform procedure they would be in a position to acquire relatively readily a writ of execution and start an execution proceeding against a debtor domiciled in another EU member state. An European order for payment issued in a member state, having become enforceable in that country’s jurisdiction will be deemed enforceable also in the member state where enforcement is being sought.
Aims of the order for payment procedure
The main objective of the procedure is to simplify, speed up and reduce the costs of litigation in cross-border cases concerning uncontested claims. Moreover, the European order for payment sets a minimum of legal standards for a payment order to get recognized in another member state and enable the initiation of an execution proceeding under it. The procedure established by the Regulation provides an additional, optional means for the claimant, who is free to resort to a procedure provided for by the national law as well. Accordingly, the Regulation neither replaces nor harmonizes the existing mechanisms for recovery of uncontested claims under national law.
Scope of application. Preconditions
This procedure applies to civil and commercial matters in cross-border cases, whatever the nature of court or tribunal. A cross-border case is one 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 being seized. For the purposes of applying the Regulation, the jurisdiction to apply is determined in accordance with Regulation (EC) No 44/2001.
Commencement of the procedure
The procedure starts when an application is filed with the competent court. The application consists of the following information: – names and addresses of the parties, their representatives (wherever applicable), and of the court to which the application is made;
– amount of the claim, including principal and, where applicable, interest, contractual penalties and costs;
– if interest on the claim is demanded – the rate of interest and the period of time for which that interest is demanded unless statutory interest is automatically added to the principal in accordance with the law of the member state of origin;
– cause of the action, including a description of the circumstances invoked as the basis of the claim, and, where applicable, of the interest demanded;
– a description of evidence supporting the claim;
– grounds for jurisdiction;
– the cross-border nature of the case.
Necessity of presenting evidence
Article 7, Par. 2 requires that the evidence and the circumstances be described. This does not mean that the evidence must be presented in the form of documents. However, because of the lack of experience in the application of the European order for payment procedure, some Bulgarian courts demand that documents be presented thereby groundlessly ruling out applications that lack that evidence.
Proceedings before the court in connection with the issuance of the order for payment
The court having been seized of an application for a European order for payment must examine, without any delay and on the basis of the application form, whether the following requirements have been met:
– civil and commercial matter in cross-border case;
– collection of a pecuniary claim for a specific amount that has fallen due at the time when the application for a European order for payment is submitted;
– jurisdiction in accordance with the relevant rules of Regulation (EC) No 44/2001;
– the above mentioned required information in the application form.
If these requirements are met, the court will issue, as soon as possible and normally within 30 days of the lodging of the application, a European order for payment, using standard forms.
Possibilities before the defendant
The defendant may lodge a statement of opposition to the European order for payment with the court of origin, using the established standard forms, which shall be supplied to him together with the European order for payment. This statement of opposition must be sent within 30 days of serving the order on the defendant. The latter must expressly point out in the statement that he contests the claim, but he does not have to specify the reasons for his opposition. The statement of opposition must 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.
With a statement of opposition having been entered within the time limit, the proceedings continue before the competent courts of the member state of origin in accordance with the rules of the ordinary civil procedure unless the claimant has expressly requested that the proceedings be terminated in that event.
Consequences of non-submission of opposition
If within the time limit laid down in Article 16(2) no statement of opposition has been lodged with the court of origin, the latter will declare the European order for payment enforceable. A European order for payment which has become enforceable in the member state of origin will be recognized as being enforceable in the other member states without there being a need for a declaration of enforceability and without it being possible to oppose this recognition.
Without prejudice to the provisions of the Regulation, enforcement procedures are governed by the law of the member state of enforcement. A European order for payment which has become enforceable will be enforced under the same conditions as an enforceable decision issued in the member state of enforcement.
For the purposes of enforcement in another member state, the claimant must provide the competent enforcement authorities of that member state with:
– a copy of the European order for payment, as declared enforceable by the court of origin, which satisfies the conditions necessary to establish its authenticity;
– where necessary, a translation of the European order for payment into the official language of the member state of enforcement.