On the 12 December 2008, Council Regulation (1896/2006) creating a European order for payment procedure, came into effect in Ireland. The purpose of the Regulation is to provide an accelerated procedure for recovering a debt and to reduce the cost of litigation in cross-border cases. The Regulations apply to a claim for an uncontested liquidated amount.
The European order for payment procedure provides a mechanism by which one party can obtain Judgment for a fixed amount against the respondent party in a relatively straight forward procedure, by submitting that the claim is undisputed. If the European order for payment procedure is not challenged, then the claimant party obtains a Judgment which is enforceable without the need for any further applications to have the Judgment recognised, in another Member State. Given the current economic downturn, the procedure is likely to appeal to companies in Europe as it provides them with a new and alternative means to recover monies due to them, in a speedy and efficient manner.
The European order for payment procedure applies to civil and commercial matters in cross-border cases. A cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State of the court hearing the action. The Regulation applies to all Member States except Denmark. The procedure is not available to all types of actions. In particular, it does not apply to insolvency related matters.
Brief Overview of the Procedure
The claimant must submit an application form (the format of which is annexed to the Regulation) setting out details of their claim. The Regulation requires that a description of the evidence supporting the claim is submitted. The claimant does not have to produce any supporting documents. The claimant must however declare that the information provided is true, to the best of his knowledge and belief. Deliberate false information could lead to penalties.
The Master of the High Court is designated by the implementing legislation in Ireland to assess the claim. The Master must look at whether the application has fulfilled the appropriate conditions such as the description of the evidence and jurisdictional issues. If the application form is incorrect or incomplete, there is an opportunity for the applicant to rectify it. The Master may reject the application, if the claim is clearly unfounded or if the claimant fails to respond to a request for modification within the specified time period. If the application is rejected, there is no right of appeal against this. The rejection of this particular application does not prevent the claimant issuing a fresh application for another European order for payment or any other procedure available under the law of the Member State.
If the Master is satisfied that the conditions referred to above are satisfied he can then issue European order for payment. The European order for payment contains a section informing the respondent that they may pay the amount sought or else file a statement of opposition. The statement of opposition must be sent within 30 days of the service of the order on the defendant. The European order for payment is served on the defendant in accordance with the national law of the State in which service is to be effected. In addition, the Regulation sets out minimal procedural standards regarding service. Where the defendant lodges a statement of opposition, the proceedings continue before the competent court of the Member State of origin in accordance with the rules of ordinary civil procedure in that country, unless the claimant has requested that the proceedings be terminated.
The Regulation abolishes the need for exequatur i.e. the European order for payment is recognised and enforced in other Member States without the need for a declaration of enforceability. The applicant must provide the designated enforcement authority with a copy of the European order for payment and a certified translation where necessary. Enforcement proceedings are then governed by the laws of the Member State in which the order is to be enforced. In Ireland, the order shall have the same force and effect as a judgment of the High Court.
Late payments and accumulating debts are a contributory factor to company insolvencies, threatening the survival in particular of medium and small businesses. The European order for payment procedure provides a swift and efficient procedure for recovering monies, where it is assumed that the claims will not be disputed. In the current economic climate, this additional method of debt recovery is likely to be of great assistance to businesses throughout Europe.