Angela Marston provides a beginner's guide to obtaining and executing a European Enforcement Order

The European Enforcement Order (EEO) has been an option for judgment enforcement since 21 October 2005 (for all judgments dated after 20 January 2005). It allows those who have an uncontested judgment in England and Wales (the member state of origin) to obtain an EEO certificate from the English and Welsh courts, which allows the judgment to be transferred to an EU member (the member state of enforcement) for enforcement.


It also permits an uncontested judgment from a European member state of origin to be enforced in the High Court or county court (depending on amount) in England and Wales.


Before embarking on a claim that may be enforced via an EEO, it is necessary to obtain copies of following rules and regulations:


  • European Council Regulation 805/2004. This is a detailed regulation and needs to be looked at and understood before embarking on the process. It appears that the annexes to regulation 805/2004 are intended to be 'the certificate', even though they look like a tick box form rather than a certificate (article 9).


  • Rule 74 of the Civil Procedure Rules (CPR). Section V and practice direction 74b set out the procedure for obtaining the EEO certificate. They also set out the procedure for staying execution.


  • Forms N219 and 219A and HM Courts Service (HMCS) advice sheet Ex 375 that gives advice on how to apply for an EEO.



    • The European Council Regulation 805/2004 creates the EEO. Articles 1 and 5 outline the intentions of the regulations: '(1) The purpose of this regulation is to create a EEO for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments... without any intermediate proceedings needing to be brought in the member state of enforcement... (5) A judgment which has been certified as an EEO 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.'


    All member states recognise the EEO, with the exception of Denmark (article 2(3)). The regulations set out specific criteria that must be met before an application can be made for an EEO. If your case does not meet the criteria, or you do not wish to use an EEO, you may use the systems of recognition and enforcement provided under regulation 44/2001 and applied by article 27 and CPR 74.19-26.




    Obtaining an EEO


    Issue proceedings &150; the summons must comply with article 16. It should contain the names and addresses of the parties, amount of the claim, interest sought, rate of interest and period for which interest claimed and the basis/reason for the claim. Article 17 requires that information must also be supplied to the debtor advising how to contest the claim. This is standard documentation in England and Wales.


    Serve the proceedings - see articles 13, 14 and 15. Service must be in accordance with the regulations. These provide for various methods of service from personal to postal with no acknowledgement of receipt where the debtor resides in the member state of origin. Have in mind that the issue of service is potentially problematic since in this country service by post is the norm, whereas in most member states, personal service is standard and postal service appears to be frowned upon as potentially not being human rights-compliant.


    Obtain an uncontested judgment. Article 3 sets out what is an uncontested claim: where the debtor has admitted debt or has agreed a consent order approved by the court; where the debtor has not filed a defence; where the debtor has failed to attend a court hearing after he has filed a defence 'provided such conduct amounts to a tacit admission of the claim or facts'; and where the debtor has expressly agreed to it as an authentic instrument (see article 4 for definitions).


    Therefore, it appears that if a contested hearing takes place, an EEO is not available as the method of enforcement even if judgment is given in your favour. However, if the matter is settled by consent, it is available.


    Article 18 sets out circumstances where perceived defects in the procedure may be cured if appropriate evidence is put before the court at the time of applying for the EEO. If service of the summons is by post and there has been no response from the debtor, it may be wise to use article 18 to strengthen the claimant's position by serving the judgment together with information as to what to do if it is disputed. The court may then be persuaded to issue the EEO.


    Article 7 confirms that an EEO may include both the judgment debt and the costs, provided no dispute has been raised as to the liability to pay the costs. Thus, if the debtor has admitted the debt but disputed entitlement to costs, notwithstanding that a costs order has been made against him, the EEO cannot include the costs because that part has been a contested claim. Article 8 provides for the issue of a partial EEO certificate for judgments where only part of the order meets the regulations. Note that if the debtor has accepted the liability for costs in principle but has disputed their amount, the costs claims remains 'uncontested' for EEO purposes.


    The application for an EEO certificate is made to the courts of the member state of origin, not the member state of enforcement. Article 6 sets out what requirements have to be satisfied before a judgment can be made the subject of an EEO certificate. In England and Wales, article 6 requirements are covered by the (mainly) tick box items in forms N219 and N219A and also the EEO certificate itself (annex 1 of the regulations).


    In summary, the requirements are that the judgment is enforceable in the member state of origin and it does not conflict with sections 3 and 6 of regulation 44/2001. Section 3 deals with jurisdiction on cases involving insurance. Section 6 gives exclusive jurisdiction to certain courts in matters relating to land, property, company constitution/dissolution, patents and trademarks.


    The application for the EEO certificate in England and Wales is made to the master or district judge. It appears to be an application on paper. Part V of CPR 74 and the practice direction 74b outline the procedure, as does HMCS advice sheet Ex375. You need to submit:


  • An application fee, form N219 or N219A, and three completed copies of the EEO certificate for sealing (draft certificates are annexed to the regulations);


  • The judgment and any costs certificate. Any documentation not in English will need a duly certified translation.



    • If the debtor did not engage with the proceedings, you will need also to submit any document proving service of the claim, application notice or judgment.




    Enforcement


    The law of the member state to which the EEO has been sent governs the enforcement procedures. Article 20 sets out what has to be sent to the member state of enforcement. These include: a sealed copy of the judgment, the sealed EEO certificate, and a translation of the EEO certificate into the language of the country of enforcement. The translation must be certified by a 'person qualified to do so in one of the member states'.


    Interestingly, although CPR 74.31 requires that a judgment in a foreign currency has to have a certificate for the sterling equivalent, there does not seem to be a similar requirement in the regulations when sending an EEO to Europe.


    Therefore, before issuing an EEO for execution in Europe, it would be advisable to obtain the rules from the country of enforcement. Article 29 obliges member states to provide information as to procedures via the European Judicial Network.


    Note that under article 20(3), no security, bond or deposit can be required from the creditor before enforcement 'on the ground that he is a foreign national or... not domiciled or resident in the member state of enforcement'. Presumably security can be required if that is the standard practice for that country, even for its own nationals.


    Article 20(2) states that 'the creditor shall be required to provide the competent enforcement authorities of the member state of enforcement' with the documents. This raises an interesting question as to what constitutes the 'competent enforcement authority'. It may mean a court in the country of enforcement, but it may mean that it should be sent directly to the enforcement agent in countries where enforcement is by independent agents, for example, France and Holland. HMCS advice sheet Ex 375 suggests you contact the relevant court of the member state and ask what its procedure is for using the EEO in that country.



    It also gives the following web address: http://europa.eu.int/comm/justice_home/ejn/index_en.htm.



    Before embarking on the EEO procedure, contact the representative body of enforcement officers in the destination member state to ascertain what type of enforcement system operates in that country and what fees will be incurred. It may be more expensive than in the UK.


    In England and Wales, CPR 74.31 provides that the same documents have to be lodged as for other member states, but with the additional requirement of a certificate of the sterling equivalent for a judgment in a foreign currency.


    The practice direction to CPR 74.31 clarifies that in England and Wales, the point of entry for an EEO is the court. As no specific court is identified, it would appear they can be issued at any district registry or county court, subject to the usual rules on jurisdiction. The court will give it a number (see CPR 74.31, and paragraph 5.1 of the PD).


    If the chosen method of enforcement is the High Court Enforcement Officer (HCEO), then (since April 2004) the High Court warrant of execution - fieri facias (fi fa) - can be issued at any district registry and sent to the HCEO of your choice. Other methods of enforcement will be via court applications or the county court bailiff. All the usual enforcement methods are available &150; fi fa, warrant of execution, charging orders, attachment of earnings, etcetera.




    Disputes


    The procedural requirements of the regulations are designed to limit the circumstances in which an EEO could be the subject of dispute. Regulation 17 specifies that the summons must contain details of how the defendant can contest the proceedings.


    Article 19 provides that an EEO certificate can only be issued if the court of origin has a procedure to dispute the judgment in cases where the proceedings have been served in accordance with article 14 (in other words, without proof of receipt) and as a result the defendant has insufficient time to defend or through no fault of his own has not been able to defend, provided such application is made promptly (namely, CPR 13).


    If there are doubts as to whether the summons came to the defendant's attention as a result of service pursuant to article 14, article 18 provides a procedure to cure any perceived or arguable defects.


    Article 21(2) states that under no circumstances may the member state of enforcement review the judgment as to its substance. This can only be done by the member state of origin. However, note as an exception to this rule article 21(1), which specifies that the member state of enforcement can refuse to enforce if the judgment is irreconcilable with an earlier judgment given by any member state or a third-party country &150; provided the same parties and cause of action were involved, plus several other provisos. CPR 74.32 and paragraph 6.1 of the PD apply.


    Article 10 allows an application to the state of origin to rectify errors, namely mistakes in the EEO certificate or withdraw the EEO where it has been wrongly granted &150; for example, failing to meet minimum standard as per article 19. Annex V1 of the regulations is the application to rectify/withdraw. If applying in England and Wales, CPR 74.30 requires a part 23 application supported by written evidence.


    Articles 6(2) provides that where an EEO is no longer enforceable, because it and/or the judgment has been set aside, an appropriate certificate (see annex 1V to the regulations) has to be issued. It would seem appropriate to combine the application under CPR 74.30 with the application under CPR 74.29.


    Article 23 provides that, on application of the debtor, a court in the member state of enforcement can limit enforcement to protect the situation pending the outcome of an article 10 application in the state of origin. CPR 74.33 requires a part 23 application exhibiting evidence of the application to the court of origin (see CPR 74.33 paragraph 7.1 of the PD). If the application is successful, the judgment debtor must serve all parties and the court with copies of the order.



    District Judge Angela Marston sits at Kidderminster County Court