Netherlands: Recent Case Law of the Court of Justice of the EU on the European Order for Payment Procedure
The Court of Justice of the EU (hereinafter: "ECJ") was faced with two preliminary procedures on the interpretation of the Regulation 1896/2006 (hereinafter: "the Regulation") regarding the European Order for Payment Procedure. These cases were the first ones on this Regulation which came fully into force on 12 December 2008. Since the Regulation leaves certain aspects open, national law is applicable and questions arise in the judicial practice. Therefore, it is not surprising that the ECJ had to answer questions on this – for some Member States – new procedure.
The first decision from 13 December 2012 in the case Szyrocka concerned the question of whether the requirements to grant a European Order for Payment are regulated exhaustedly or whether the Member States are allowed to set up additional requirements. In the second decision from 13 June 2013 in the case Goldbet Sportwetten GmbH, the ECJ had to answer the question whether the defense against a European Order for Payment can be qualified as a situation as regulated in article 24 of the Regulation 44/2001 (hereinafter: "Brussels I-Regulation").
Decision in the case Szyrocka
The ECJ ruled in the decision Szyrocka that even though article 26 of the Regulation states that in cases where the Regulation does not provide for an exhausted provision, national law of the Member States shall be applicable, this does not mean that Member States may introduce additional requirements. This would result in different forms of the European Order for Payment Procedure and not in a uniform procedure as the European law maker wished for. With the loss of the uniformity, this procedure will as well become less efficient and effective. This does not mean that the national laws of the Member States do not play any role in this context. Due to the fact that this procedure is unknown in certain Member States or not known in such a form, national laws of the Member States shall have the function to integrate this uniform procedure in the national law systems of the Member States.
Decision in the case Goldbet Sportwetten GmbH
In the decision in the case Goldbet Sportwetten GmbH the ECJ stated that the European Order for Payment Procedure is a procedure for undisputed claims. That means, according to the ECJ, that the essence of this procedure is whether the defendant disputes the claim. Due to the ex parte character of this procedure, the defendant can only dispute the claim after the European Order for Payment has been granted. If the defense within the European Order for Payment Procedure was qualified as a situation where article 24 of the Brussels I-Regulations applies, this would have resulted in the defendant losing his right to object to the jurisdiction of the court in the following ordinary proceedings. Additionally, the forms to file a defense within the European Order for Payment Procedure do not provide for a defense regarding the jurisdiction of the court. The ECJ concluded therefore that article 24 Brussels I-Regulation is not applicable in the case of a defense against a European Order for Payment.
These decisions are not surprising. The European Order for Payment Procedure, as regulated by the Regulation, is a compromise made by the Member States. Certain aspects are therefore not regulated. In order to be effective, the key elements of this procedure should be uniform. The national laws of the Member States shall only have the function of integrating this European procedure in their national law systems. It is therefore good that the ECJ focuses on the uniform character of this procedure. Due to the unregulated aspects within the Regulation, more decisions of the ECJ can be expected in the near future.
Dr. Bartosz Sujecki
Boels Zanders Advocaten
T: +31 88 304 0263
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