Concentration of jurisdiction (NL) EOP-procedure


Ondernemingsrecht - M&A


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20 oktober 2015

On 24 February 2015, the Senate of the Dutch Parliament rubber-stamped the legislative proposal to amend the Implementation Act on Regulation (EC) No 1896/2006 creating a European order for payment procedure (Read more). The legislative proposal provides for applications for a European order for payment (EOP) to be lodged with (exclusively) the District Court of The Hague (civil-law section). This concentration of jurisdiction simplifies litigation for (foreign) claimants, since they no longer have to establish which court has jurisdiction to issue a EOP. The legislative proposal makes it easier for foreign claimants to manage cross-border debt collection.

Initially, it was unclear whether or not the EOP-regulation allowed concentration of jurisdiction with regard to EOP-applications with a particular court. However, (non-public) minutes of a meeting on the implementation of the EOP-regulation in December 2008 show that the European Commission communicated that concentration was allowed. Moreover, Article 6 of the EOP-regulation and Council Regulation (EC) No 44/2001 on jurisdiction and recognition and enforcement of judgements in civil and commercial matters (Brussels I) in some cases provide for jurisdiction of local courts.

As from 12 December 2008, Regulation (EC) no 1896/2006 creating a European order for payment procedure applies (Read more about Regulation (EC) no 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ EC L 399 of 30.12.2006)). The regulation was adopted by all EU member states, with the exception of Denmark. The regulation lays down standards for a uniform European procedure creating a European enforcement order for cross-border collection of uncontested debts. Unlike the usual contradictory procedure, the EOP-procedure provides for a EOP to be issued without hearing the defendant beforehand. A defendant can only prevent enforceability by filing a statement of opposition. The use of standard forms makes the EOP-procedure simple. Furthermore, an enforceable EOP issued in a member state is considered to be an order issued in the member state in which enforcement is requested. This means that the claimant can directly enforce a EOP in another member state, without the need for a declaration of enforceability or exequatur. A EOP thus provides for a European enforcement measure which can be carried out directly in any other member state. The Regulation neither replaces nor harmonises the existing mechanisms for the recovery of uncontested claims under national law. In cross-border collection of uncontested debts, claimants in the Netherlands can therefore choose between the EOP-procedure and the Dutch summon or petition proceedings, depending on the subject matter.

The regulation applies to civil and commercial matters, with the exception of revenue, customs or administrative matters, bankruptcy and social security. The regulation particularly applies to contractual pecuniary claims, regardless their value. Claims based on tort and other non-contractual claims do not fall within the regulation’s scope (unless they have been the subject of an agreement between the parties or there has been an admission of debt, or if they relate to liquidated debts arising from joint ownership of property.

The regulation solely sees to the recovery of uncontested claim 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 other than the member state of the court seised. A claim is uncontested within the meaning of the EOP-Regulation if the defendant has not lodged a statement of opposition within 30 days after service of the EOP.

The court seised for an application for a EOP has to examine whether:

  • the application falls within the scope of the regulation;
  • a cross-border case is involved;
  • the pecuniary claim sees to a specific amount that has fallen due;
  • the court seised is competent with regard to the application;
  • all the information provided is complete and correct;
  • the claim is justified.

If information is lacking, the court gives the claimant the opportunity to complete or rectify the application within the time limit specified by the court, unless the claim is clearly unfounded or the application is inadmissible.

A EOP application is rejected if the requirements of the regulations are not met, or if the claim is clearly unfounded, or if the claimant failed to respond in time to the court’s invitation to complete or rectify the application. The court is to inform the claimant of the grounds for the rejection. The claimant has no right to appeal the rejection of the application. Instead, the claimant can file a new EOP-application or initiate ordinary proceedings.

When all requirements of the regulation have been met, the court issues a EOP as soon as possible and normally within 30 days after lodging the application. The court ensures that, subsequently, the EOP is served on the defendant in accordance with national law by a method that meets the minimum standards laid down in the regulation. The Netherlands have chosen for the EOP being served on the defendant by registered mail with acknowledgement of receipt, or by a bailiff.

The effect of a statement of opposition being filed (in time) against the EOP issued is that the EOP-procedure ends. The proceedings then continue before the competent court(s) of the member states of origin in accordance with the rules of ordinary civil proceedings (therefore a contradictory proceedings) , unless the claimant has explicitly requested that the proceedings be terminated in that event.

If within 30 days of service of the EOP on the defendant, no statement of opposition has been lodged with the court of origin, the court of origin shall without delay declare the EOP enforceable.

Since the regulation applies to uncontested pecuniary claims and the EOP-procedure is not a contradictory procedure, the regulation gives much attention to the necessary safeguards for defendants, including minimum standards for service of the EOP on the defendant, the provision of information to the defendant and a very simple way for the defendant to oppose. The regulation provides for an extra safeguard if the defendant is a consumer. An EOP-application against a consumer is only to be lodged with the court(s) in the member state in which the defendant is domiciled, within the meaning of Article 59 of Regulation (EC) No. 44/2001 (Brussels I) (Read more about Council Regulation (EC) No 44/2001 on jurisdiction and recognition and enforcement of judgements in civil and commercial matters (Brussels I)).

In order to make it as easy as possible for the defendant, it may lodge a statement of opposition by using the standard form provided for that purpose. The defendant only has to indicate that he contests the claim, without substantiating its contestation.