Brussels, 26 November 1997
Procedural law: The Commission advocates more efficiency in obtaining and enforcing judgements in the European Union
It takes far too long and costs too much to get a civil or commercial judgement given in one Member State recognised and enforced in another Member State. The costs and delays are added to those already inherent in the national procedures. These obstacles obstruct access to justice on equal terms across the Internal Market. Citizens and small and medium sized companies are the most vulnerable in this respect. To contribute to solving these problems, the Commission today adopted a Communication jointly presented by Commissioner Anita Gradin, responsible for Justice and Home Affairs, and Single Market Commissioner Mario Monti. The Communication contains a proposal for a new Brussels and Lugano Convention on enforcements of judgements. It also aims at opening a wide debate on a series of issues with a view to improving the citizens' and businesses' possibilities to enforce their rights through rapid procedures for money claims, increased transparency of assets, etc.
"The measures proposed will improve access to justice within the EU. This will strengthen the rights of the citizen as a consumer as well as in other roles. It will also contribute to a more stable legal framework for industry, in particular small and medium sized companies, and thereby give a positive impetus to the further development of the Internal Market", says Commissioner Anita Gradin.
"This Communication is to be seen as a first step towards a new Single Market policy in the field of procedural law" Mr Monti added. "The free movement of judgements is an important corollary to the basic freedoms of the EU Treaty. The rules in this field can still be improved and reflection has to be extended also to other areas of procedural law. Once in force, the Amsterdam Treaty offers the EU new possibilities and instruments to deal with this issue" concluded Mr Monti.
Free movement of judgements - a proposal for a revision of the Brussels and Lugano Conventions
The recognition and enforcement of judgements in the Member States in civil and commercial matters is currently governed by the Brussels Convention of 1968. Almost identical rules have been adopted by the Lugano Convention of 1988 for the relations between EU Member States and EFTA States.
In almost thirty years business activities and human relations within the EU have considerably changed and developed. In today's Europe especially citizens and small and medium sized companies might perceive procedural requirements as a disincentive to enforce their rights. Indeed, additional procedures, involving additional costs and delays, are required in cases where a judgement obtained in one Member State has to be enforced in another.
The Commission's proposal for a new Brussels and Lugano Convention would contribute to a considerable improvement of the present situation and a simplification of procedures in following areas:
- The Commission proposes that the enforcement of a judgement issued in another Member State should be virtually automatic and involve no more than a formal check on the judgement. This will be facilitated if the judgement to be enforced is accompanied by a uniform multilingual certificate, issued by the State of origin.
- The Commission also considers that the grounds on which a foreign judgement may be opposed need to be revised and that it would be up to the defendant to contest the judgement. The defendant should be duly served and have sufficient time to prepare his defence. But to avoid purely dilatory appeals the Commission considers that the judgement should be declared provisionally enforceable.
- The Commission further proposes that provisional, including protective measures, for example to guarantee a debt, be given a uniform definition and that such measures should be ordered by the courts of the Member State in whose territory they can be effectively executed.
Other avenues to be explored with a view to an improved access to justice
This chapter of the Communication is intended to gather reactions and suggestions from all interested parties on how to take the free movement of judgements a stage further. The Communication points in particular to four areas where national divergence creates great difficulties and which the Commission would like to see dealt with in greater depth :
- The first would be the possibility of establishing in all Member States a rapid procedure for money claims. Such rapid payment orders already exist in several Member States and have shown to be efficient in speeding up payments. The guiding principle should be that a heavy judicial procedure should be avoided so that both economic operators and citizens (consumers, alimony creditors etc.) can benefit from the dismantling of borders when faced with unpaid debts.
- Secondly, the Commission proposes that reflection should be given to the seizure of bank accounts. This practice exists in almost all Member States and is a powerful weapon against bad debtors. Today the extreme volatility of the contents of a bank account is a major obstacle to the seizure and attachment of funds. The massive growth in electronic fund transfers also makes it difficult to determine the proper place of seizure. The Commission considers it timely to introduce a common approach to these problems within the EU.
- Thirdly the Commission considers that litigants in the Union ought to have comparable facilities at their disposal in the field of transparency of assets. For the creditor knowledge of the assets of the debtor is of vital importance when deciding whether it is worth pursuing an enforcement. The proposal is that thought be given to a possible generalised application of the "asset declaration" principle, in use in some Member States.
- Lastly, claims have increasingly to be recovered abroad. International co-operation should make recovery easier. The Commission therefore suggests that such co-operation be enhanced, possibly via an information exchange scheme between authorities in the Member States.