The report of the European Commission on the European Order for Payment Regulation

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With a delay of nearly two years (see Art. 32 of Regulation 1896/2006), the European Commission published on 13 October 2015 its report on the European Order for Payment (COM (2015) 495 final). One should note that the report follows the proposal to amend the EOP (and ESCP) and its recent adoption by the MEPs. Usually it is the other way around…

The report starts by recalling that Regulation (EC) No 1896/2006 of 12 December 2006  created the first genuine European civil procedure, the European order for payment procedure (on this revolution, see ‘L’Europe, la procédure civile et le créancier: l’injonction de payer européenne et la procédure européenne de règlement des petits litiges’, Revue trimestrielle de droit commercial et de droit économique, 2008. 465). It has been applied since December 2008 in all Member States except Denmark. It is an optional procedure that can be used in cross-border cases as an alternative to domestic payment orders. According to the available information, between 12,000 and 13,000 applications for European orders for payment are received by the courts of Member States per year.  The highest numbers of applications (more than 4,000 annually) are in Austria and Germany where also most European orders for payment are issued. Between 300 and 700 applications are received annually in Belgium, the Czech Republic, France, Hungary, the Netherlands, Portugal and Finland. In the other Member States, the procedure has been taken up to a more limited extent. A 2010 Eurobarometer showed that awareness and use of the European procedures including the European order for payment procedure among citizens is relatively low. Only 6 % of those asked had heard about the European order for payment procedure.

The Commission observes that 5 Member States have concentrated jurisdiction to handle European orders for payment in a single specific court/authority.  In the other Member States, district and regional courts (or notaries for instance in Hungary) are competent for issuing European orders for payment. It considers that in the light of the written and non-adversarial nature of the procedure, where no debate on the substance of the claim takes place, and which is thus particularly suited for electronic processing, the European order for payment procedure does appear better suited for centralised court handling than other procedures which require a debate on the substance and consideration of evidence and therefore may call for closer proximity of the court to the litigants.

The Commission also observes that in most Member States, applications must be submitted in the official language(s). Some Member States accept, however, also foreign languages: the Czech Republic, Estonia, Cyprus and Sweden accept English; France accepts English, German, Italian and Spanish. The Commission is unhappy about that, considering that translation requirements have a negative impact on costs and delays of the procedure even if the European order for payment procedure is a procedure where the parties are not required to provide and debate on evidence. The Commission therefore considers that in order to achieve the objective of a truly European procedure, all Member States should accept European payment order applications in at least one other language than their official national language(s). In other words, and without it saying explicitly, it advocates for the use of English as the (only) common language (perhaps as a first step towards the disappearance of other national languages).

Overall, it appears that the Regulation generally functions in a sound and satisfactory manner. The application of the Regulation has generally improved, simplified and accelerated the handling of uncontested pecuniary claims in cross-border disputes. In the light of this, the Commission does not deem appropriate at this time to change the fundamental parameters of the European procedure. However, the European procedure is not sufficiently known among businesses, citizens, practitioners, and courts. Further awareness-raising is necessary, both at European and at Member State level. Efficient and active promotion of the Regulation should take place, providing the general public and professionals with information on the European order for payment procedure. In addition, the operation of the Regulation may be improved through non-legislative and implementation measures. The Commission will use the cooperation mechanism of the European Judicial Network in Civil and Commercial Matters in a proactive manner to improve the implementation and promote the take-up of this useful instrument. The operation of the procedure could further be improved by ensuring its electronic processing and by Member States giving further consideration to the suitability of centralisation of the handling of cases under the procedure.

(Altalex, 14 December 2015. Article by Emmanuel Guinchard)

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