Presentation on theme: "Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims."— Presentation transcript:
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims – applying it in the Polish court practice Grzegorz Karaś Judge of District Court for Wrocław-Fabryczna
I. The subject matters of the Regulation are: 1. definition of cases, where the claim is uncontested within the meaning of the Regulation, 2. creating a norm aiming to certify a judgement as a European Enforcement Order, 3. provisions concerning the minimum standards of proceedings having as a subject the uncontested claims, 4. Some aspects of proceedings aiming at enforcement of the EEO in the Member State of enforcement as well as, 5. Definition of requirements, which have to be met, in order for court settlements or authentic instruments to be certified as EEO.
According to art. 3.1 this Regulation does only apply to judgments, court settlements and authentic instruments on uncontested claims: Claims are to be regarded as uncontested if: 1. the debtor has expressly agreed to it by admission or by means of a settlement, which has been approved by a court or concluded before a court in the course of proceedings; or 2. the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or 3. the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin; or 4. the debtor has expressly agreed to it in an authentic instrument.
1.judgements concerning recognized claims (art. 213 § 2 & art. 333 § 1.2 Code of Civil Procedure = k.p.c), 2.judicial decisions by default (art. 339 Code of Civil Procedure and art. 333 § 1 pkt 2 Code of Civil Procedure), 3.settlements concluded in the course of the judicial settlement proceedings (art. 223 Code of Civil Procedure), 4.settlements concluded within the settlement proceedings conducted prior to the institution of the disputable proceedings (art. 184 Code of Civil Procedure), 5.settlements concluded through mediation and subsequently approved by the court, 6. writs of payment issued in order proceedings (art. 485 Code of Civil Procedure), 7.writs of payment issued in warning proceedings (art. 498 Code of Civil Procedure), 8.notarial deeds, in which the debtor submitted himself to enforcement, 9.banking execution titles.
In connection to the Regulation No805/2004 new provisions implementing the above regulation have been introduced into the Polish Code of the Civil Procedure. The Act of 17 February 2006 (Dz.U z 2006r., No 66, Pos. 466) has amended the Code of the Civil Procedure. The new provisions entered into force on 5 May 2006. Provisions of the Polish Code of the Civil Procedure concerning procedure of issuing an EEO Certificate introduced by the Act of 17 February 2006: art. 206 § 2 k.p.c. art. 795 1 – 759 5 k.p.c. art. 820 1 and 820 2 k.p.c. art. 825 point 5 k.p.c. art. 840 3 k.p.c. art. 1153 1 and 1153 2 k.p.c.
Art. 795 1. § 1. Where the execution title in form of a judicial decision, settlement concluded before the court or approved by the court meets the requirements specified in separate provisions, the court, which has delivered the decision or before which the settlement was concluded or which has approved the settlement, shall upon the application of the creditor deliver a certificate that they are an EEO further referred to as “certificate as an EEO”. § 2.Where the application upon issue of a certificate as an EEO relates to another execution title then referred to in par. 1, the district court, in whose circuit the title was issued shall decide upon this application.
The decision upon the issue of a certificate as an EEO shall be conducted by the court sitting with a panel of one judge.
§ 1. The decision upon refusal of issue a certificate as an EEO shall be served on the creditor only. § 2. The decision on refusal of issue of the certificate as an EEO shall be subject to an interlocutory appeal by the creditor.
§ 1. In the event of finding, that there is in specific provisions a ground for reversal of the certificate as an EEO, the court, which has issued it, shall reverse such certificate upon the application of the debtor. § 2. The application shall be presented within one month of the day of the service of the copy of the decision on issue of the certificate. § 3. Where the application was not made out on a form as set out in specific provisions, it shall meet the requirements for a pleading and specify the circumstances justifying the application. § 4. Prior to reversal of the certificate the court shall hear the creditor. § 5. The ruling of the court on the reversal of the certificate as an EEO shall be subject to an interlocutory appeal.
§ 1. The provisions of Art. 795 1 and 795 2 shall apply accordingly to issue of separate certificates of loss or limitation of enforceability of an enforcement order certified as an EEO. The application on issue of such certificate may lodge also the debtor. § 2. The ruling of the court on issue of the certificate provided for in par. 1 shall be subject to an interlocutory appeal.
The Regulation 805/2004 establishes two fundamental principles of enforcement in the state in which enforcement is sought: 1. abolition of exequatur – Art. 5 “A judgment which has been certified as a European Enforcement Order in the Member State of origin shall be recognised and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition.” 2. a judgment that has been certified as a European Enforcement Order by the court of origin should, for enforcement purposes, be treated as if it had been delivered in the Member State in which enforcement is sought – Art. 20.2 and point 8 of preamble to the Regulation.
In Poland according to Article 776 k.p.c. an execution document shall be the basis for the execution. The execution document is an enforceable title complete with the execution formula. Giving the enforceability clause is necessary for the possibility of enforcement procedure in Poland. The executive body is in Poland a court executive officer who can start the enforcement upon the application of a creditor after submitting the enforcement title with enforceability clause by the creditor. Procedure of giving enforceability clause to enforceable titles with EEO certificate from the state of origin is specified in Article 1153 1 and 1153 2 k.p.c.
Court judgments from EU Member States, settlements concluded before these courts or approved by these courts and authentic instruments made in EU Member States, provided in these countries with EEO certificate, are execution titles and are subject to enforcement in Poland after giving enforceability clause. Art. 1153 2 Enforceability clause is given to the execution titles from art. 1153 1 k.p.c. by a District Court of debtor’s general jurisdiction and if this jurisdiction cannot be determined – a District Court in which circuit the enforcement must start.
Enforceability clause is given by a District Court sitting with a panel of one judge. The application on giving enforceability clause is adjudicated immediately, not later than 3 days from the date of lodging it – art. 781 1 k.p.c. The application on giving enforceability clause is subject to the court charge of 50 zloty. If an execution title is expressed in foreign currencies (eg. Euro) the court executive officer converts it into Polish zloty according to the average rate of National Bank of Poland. Giving enforceability clause has a form of the court decision and the creditor is being served with it. The debtor is being served with this decision by the court executive officer during the first executive activity.
Article 795. k.p.c. – Giving the enforceability clause shall be subject to a complaint. The time limit to file a complaint is 7 days and it runs as follows: - for the creditor - from the date of serving him with a copy of the decision on giving the enforceability clause - for the debtor - from the date of serving him with the notification of starting execution. The complaint on a decision of giving enforceability clause is being adjudicated by the Circuit Court as a court of the second instance.