DE AMICIS & PETROVA LAW FIRM HELPS YOU RECOVER YOUR DEBT IN BULGARIA
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creates a European order for payment procedure. This simplified procedure expedites cross-border civil and commercial cases concerning uncontested monetary claims, reducing their cost and duration. A European order for payment is recognised and enforced in all Member States except Denmark without a declaration of enforceability; the European order for payment system is therefore fully operational and effective in Bulgaria and Italy. In cross-border disputes, the Regulation ensures the free circulation of European orders for payment throughout the Member States by establishing minimum standards whose observance removes the need for any intermediate procedure in the Member State of enforcement before recognition and enforcement. The procedure is consequently fully applicable between Bulgaria and Italy in either direction. The European order for payment procedure applies to cross-border civil and commercial matters, whatever the nature of the court or tribunal. A cross-border case is one in which at least one party is domiciled or habitually resident in a Member State other than the Member State of the court seised.
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By express statutory provision, the European order for payment procedure does not apply to revenue, customs or administrative matters, or to State liability for acts or omissions in the exercise of public authority. The Regulation expressly excludes matrimonial property regimes; bankruptcy, compositions and similar proceedings; social security; and claims arising from non-contractual obligations, unless they have been the subject of an agreement between the parties, there has been an acknowledgement of debt, or the claims concern liquidated debts arising from joint ownership of property.
Submitting an application for a European order for payment is relatively straightforward and follows the same format in all EU Member States except Denmark, where the procedure does not apply. The Regulation provides Form A (Annex I) for the application. The pecuniary claims concerned must, of course, be for a determined amount and due when the application for a European order for payment is submitted.
Jurisdiction is governed by the relevant Community rules, particularly Regulation (EC) No 44/2001. Where the claim relates to a contract concluded by a consumer for a purpose regarded as outside their trade or profession, and the defendant is the consumer, only the courts of the Member State in which the defendant is domiciled have jurisdiction.
The court to which an application for a European order for payment is submitted assesses as soon as possible whether the admissibility requirements are met—such as the cross-border nature of the civil and commercial dispute and the jurisdiction of the court seised—and whether the application is well founded.
If the application form does not contain all the necessary information, the court gives the claimant an opportunity to complete or rectify the application within a specified period, unless it is manifestly unfounded or inadmissible. For this purpose, the Regulation provides Form B (Annex II).
The court may submit a proposal to the claimant to amend the application if it meets only some of the prescribed conditions. For this purpose, the Regulation provides Form C (Annex III). Within a specified period, the claimant is invited to accept or refuse the proposed European order for payment for an amount specified by the court. The claimant is informed of the consequences of their decision and submits their response by returning the form.
If the claimant accepts the court’s proposal, the court issues a European order for payment for the part of the application accepted by the claimant. The consequences for the remaining part of the original application are governed by national law. If the claimant fails to meet the deadline set by the court or rejects its proposal, the court rejects the application for a European order for payment in its entirety.
The court informs the claimant of the reasons for rejection using Form D (Annex IV). There is no right of appeal against rejection of the application. Rejection does not, however, prevent the claimant from pursuing the claim through a new application for a European order for payment or any other procedure available under the law of a Member State. Issuing a European order for payment following a successful application.
If the application for payment is granted, the court issues the European order for payment as soon as possible, normally within thirty days of the application being lodged. The thirty-day period excludes the time taken by the claimant to complete, rectify or amend the application.
The European order for payment is issued solely on the basis of information provided by the claimant, which has not been verified by the court. The European order for payment becomes enforceable unless the defendant lodges a statement of opposition with the court of origin. A distinctive feature and foundation of the procedure is that the Regulation abolishes exequatur: the European order for payment is recognised and enforced in other Member States without a declaration of enforceability and without the possibility of opposing its recognition. Enforcement procedures are governed by the national law of the Member State where enforcement of the European order for payment is sought. Methods of serving the European order for payment on the defendant.
The European order for payment is served on the defendant under the national law of the country where service is to take place. The Regulation lays down minimum standards for various methods of service, with or without proof of receipt by the defendant. Service with proof of receipt: personal service, with the defendant signing a dated acknowledgement; personal service, with the person effecting service signing a dated document stating that the defendant received the document or refused it without legal justification; the defendant signs and returns a dated acknowledgement when receiving the European order for payment by post or electronically, such as by fax or email. Service without proof of receipt: personal service at the defendant’s personal address on a person living in the same household or employed there; personal service at the defendant’s business premises on an employee, where the defendant is self-employed or a legal person; depositing the order in the defendant’s letterbox; depositing it at a post office or with a competent public authority and placing written notification in the defendant’s letterbox, specifying the judicial nature of the document; service by post or electronically, evidenced by automatic confirmation of transmission, provided that the defendant has agreed in advance. The defendant’s address must be known with certainty for the European order for payment to be served. The order may be served on the defendant’s representative.
Method and form of opposition to a European order for payment
The person who receives a European order for payment — the defendant — may lodge a statement of opposition with the court that issued it. The statement must be sent within thirty days of service. To oppose the order, the defendant may use Form F (Annex VI), supplied together with the order for payment. The defendant indicates that the claim is contested without having to give reasons. If the defendant opposes the European order for payment, proceedings continue before the courts of the Member State of origin under national civil procedure, unless the claimant has requested that proceedings be terminated in that event. After the thirty-day opposition period expires, the Regulation allows the defendant to request a review of the European order for payment by the issuing court where the order was served without proof of receipt by the defendant and service was not effected in sufficient time to enable a defence; where force majeure or exceptional circumstances prevented the defendant from contesting the claim; or where the order was wrongly issued. If the court rejects the defendant’s request, the European order for payment remains valid. Conversely, if the court decides that review is justified, the order is null and void. At the defendant’s request, the competent court in the Member State of enforcement refuses enforcement of the European order for payment if it is irreconcilable with an earlier judgment or order issued in any other Member State or a third country. That decision must concern proceedings involving the same cause of action and the same parties and must be recognised in the Member State of enforcement.
Consequently, the rules governing the European order for payment are fairly straightforward and standardise how proceedings are initiated, whereas any opposition stage is governed by the civil procedure rules of the state of origin. It is therefore important to know the procedural and substantive civil law rules of both Member States in order to have a reasonable opportunity to mount a complete defence.
Through its Bulgarian and Italian offices and before all courts in the respective countries (Italy and Bulgaria), De Amicis & Petrova Law Firm offers the opportunity to obtain a European order for payment in one State and enforce it in the other, without having to rely on other local professional firms, by directly handling every stage and step of the procedure.
Although the procedure for obtaining an enforceable title is harmonised and simplified, the enforcement stage—seizing the debtor's assets and actually achieving a financially beneficial outcome for the client—requires knowledge and expertise in both the Member State in which the decision originates and the State in which it is enforced, particularly Italy and Bulgaria. Otherwise, knowledge of only one stage of the proceedings does not enable the client to obtain a positive outcome.