sou · H4B381d6 · 2016-11-25 00:00:00 — In making this assessment, the Swedish Enforcement Authority must also take account of whether a measure is proportionate in the particular case, in addition to considering efficiency and integrity. The resources of the Swedish Enforcement Authority and other authorities have to be used in the best way possible. Enforcement Authority makes the assessment that a measure can be assumed to have no effect, an applicant should not be able to require that it be taken without a legal examination. On the other hand, the applicant must be able to request that the Swedish Enforcement Authority takes a particular measure and have the request examined. If the Swedish Enforcement Authority does not comply with a request by the applicant to take a particular measure, the applicant should therefore be able to appeal the decision of the Swedish Enforcement Authority not to take the particular measure. efficient rules for the communication of decisions We propose that the Swedish Enforcement Authority should, in the same way as other authorities, be able to use simplified service of process abroad in cases where this is appropriate. The requirement that certain decisions must be served on employers of persons with attachment of pay should be abolished. This will result in resource and efficiency gains for the Swedish Enforcement Authority that can be translated into an annual saving of between and 1.8 million. Better access for parties through modern technology A legally secure enforcement procedure must mean that the parties can access all decisions taken in an enforcement case and that they can appeal the decisions when they do not accept the assessments made and positions taken by the Swedish Enforcement Authority. On account of the large quantity of enforcement cases and the large number of decisions taken in each case, it would not be efficient for either the Swedish Enforcement Authority or the parties if the Authority sent out all these decisions. Instead the Swedish Enforcement Authority should develop an online information tool so that the parties are able to follow what is happening in their enforcement case in a simple way and to the extent that they themselves choose. This would make the enforcement procedure more transparent, legally secure and efficient. A debtor who is subject to attachment of pay would be able to follow the payments made and see how much of each debt still has to be paid. Both parties would be able to access each decision on distribution and payment and would therefore have a real possibility of appealing the decisions. The Swedish Enforcement Authority should be responsible for enforcement cases being investigated sufficiently While the enforcement procedure has to be quick and efficient, the legal rights of the individual must not be neglected. Clear and correct information from authorities is an important precondition for legal certainty. An authority must always be able to provide correct information without appearing partial as long as the information is of an informative and not an advisory nature. Both debtors and creditors benefit if everyone knows what the rules are and the decisions are correct to begin with. In addition to the general service obligation that follows from the Administrative Procedure Act we propose that the Swedish Enforcement Authority shall be given an obligation, regulated in the Enforcement Code, to case manage the parties so that they can act in an efficient and appropriate way. The Swedish Enforcement Authority should remedy the parties’ submissions where they are unclear or incomplete by asking questions and making comments. This proposal can increase the proportion of substantively correct decisions and the Swedish Enforcement Authority can focus more in its processing on what is of significance in the case. Well-judged case management ought to be able to replace, to some extent, the need for a party to engage a legal representative. This proposal provides advantages for both the debtor and the creditor collective and for the authorities and courts affected. Obligation of the Swedish Enforcement Authority to take account of the best interests of the child laid down in law The best interests of the child have to be taken into account in all decisions by authorities or other measures that apply to children. The Swedish Enforcement Authority already has an obligation to take account of the provisions of the Convention on the Rights of the Child. A provision saying explicitly that the best interests of the child have to be taken into account will make the child rights perspective even clearer to both the Swedish Enforcement Authority and those affected by decisions made by the Authority. This obviously means that children’s situation and needs must be taken into account when the Swedish Enforcement Authority comes into direct contact with children, for example if the Authority meets children in connection with enforcement administration in homes or when carrying out evictions. But the child rights perspective must also be taken into account when the Swedish Enforcement Authority determines what property to attach, when the Swedish Enforcement Authority determines whether certain property can be exempted as non-attachable property and when the Swedish Enforcement Authority orders the attachment of pay. The principle of proportionality laid down in law The principle of proportionality is a general legal principle that is applicable without any special support in legislation. Codifying the principle of proportionality in the Enforcement Code will give the principle a greater impact during the enforcement process, which also means that will be better able to live up to some of its international commitments. Both Court of Human Rights and national courts have provided guidance regarding the content and assessment of the principle of proportionality in several rulings. A principle of proportionality laid down in the Enforcement Code means that the reasons for a measure must always be set in relation to the detriment that the measure or decision entails for the individual. When the Swedish Enforcement Authority makes its choice of measure, the alternative or alternatives chosen should be those that achieve their purpose through the least far-reaching measures in the light of the circumstances in the individual case. The protection afforded by Convention is applicable irrespective of whether there are one or more attachable assets. The Swedish Enforcement Authority must therefore make an assessment of proportionality even if there is only one asset that can be attached. The Swedish Enforcement Authority should be able to set aside a decision if it is manifest that the decision is not proportionate Under current regulations an attachment shall be set aside if the sale of the attached property cannot be assumed to yield a surplus that makes the measure justifiable. The attachment can be set aside if the sale of the attached property cannot be expected to generate so much that the applicant can receive a considerable sum in payment. However, this provision does not allow the Swedish Enforcement Authority to set aside other measures and decisions, e.g. the sale of a real property at auction. Since the principle of proportionality has to be taken into account throughout the entire enforcement procedure, we consider that it must be possible for the Swedish Enforcement Authority to set aside all decisions in the enforcement procedure, provided that they have not gained legal force. To some extent this means less predictability for the applicant. So, strong reasons must be required to set aside a decision. We therefore propose that it should only be possible to set aside a decision if it is manifestly disproportionate. Thus, the possibility of setting aside a decision pursuant to the principle of proportionality should only be applied in pure exceptional cases when letting the decision remain in place would lead to unreasonable results. Decisions already taken by the Swedish Enforcement Authority should not until the decision to set them aside has gained legal force. How does the principle of proportionality relate to existing regulations? There are already provisions in the regulatory framework for enforcement that deal with the balance between the interests of the applicant, the defendant and third parties. A principle of proportionality laid down in law does not replace the existing regulations on assessments of what is justified. If a measure is not justified from a purely financial perspective, it shall, for that reason alone, not be taken and then the Swedish Enforcement Authority does not need to make the much more complex assessment of whether the measure is proportionate. The present provision saying that reasonable account shall be taken of both the applicant’s interests and the defendant’s situation when an eviction is enforced has been retained as a supplement to the general provision on the principle of proportionality. Efficient attachment of pay and a reasonable living standard Attachment of pay means that the Swedish Enforcement Authority decides that the debtor’s employer shall withhold part of the debtor’s pay and report it to the Swedish Enforcement Authority so that the money can be used for payment of the debtor’s debts. It is not just pay that can be attached in this way: attachment of pay can also be applied to other benefits and compensation like pension, annuity, sickness benefit, parental benefit, unemployment benefit and taxable reimbursement of costs. Following a comprehensive reform in 1996 attachment of pay can continue without a break for an unlimited period of time. Attachment of pay is very efficient. year about billion is paid through attachment of pay, and this corresponds to about a third of the total sum collected by the Swedish Enforcement Authority in a year. At present, attachment of pay is taking place for about 100 000 debtors. The average amount attached is about 000 per month but there are large variations. We have seen examples of amounts for attachment of pay between and more than 000 per month. Our starting point is that efficient attachment of pay presupposes that a person subject to attachment of pay is allowed to retain enough of his or her income to have a reasonable living standard. Otherwise there is an evident risk that the debtor will lose the incentive for open work. There is also a great risk of the debtor and the debtor’s family being hit by health problems and other problems. should attachment of pay lead to the debtor being entitled to income support from municipal social services. In the long run, it is also better for the creditor collective if attachment of pay takes place on terms that enable the debtor to retain his or her ability to pay. Higher reserve amounts for families with children As is the case with other attachment, pay shall only be attached if this is justifiable in view of the financial outcome. In addition, pay may only be attached to the extent that the pay exceeds the sum needed by the debtor for his or her own and the debtor’s family’s maintenance and for the payment of debts that have priority over the claim being met by attachment. The part that may not be attached through attachment of pay (the reserve amount) is set, since the 1996 reform, on the basis of standard amounts intended to cover all normal living expenses apart from housing costs. The standard amounts are set by the Swedish Enforcement Authority after an annual recalculation that protects these amounts from inflation compared with the amounts that were applicable when the reform was implemented. Even though the standard amounts are protected from changes in the value of money, the standard amounts have decreased relative to what can now be paid in income support. The main reason for this is that the national standard for income support now takes a great deal of account of the fact that costs for children and young people increase as children grow older and have more needs of recreation and of participation and integration in society. Following a special examination, income support can also be paid for special costs not included in the standard amounts in the attachment of pay procedure. We have considered whether the national standard for income support should also guide the reserve amount in attachment of pay. But one very important aspect is that the system of regulations for attachment of pay has to be simple and predictable. Both the person who requests enforcement and the person who can be subject to attachment of pay must be able to see the consequences of an attachment of pay decision in advance. The activities of the Swedish Enforcement Authority must be efficient and legally secure. The Swedish Enforcement Authority cannot take decisions on the needs of individuals at a detailed level in every single case in the same way as the social services. This is why it is necessary for the rules for normal and reserve amounts in attachment of pay to be blunter to some extent and therefore simpler to predict and apply than those that cover income support. The need for predictable regulations and an efficient procedure takes precedence over the need for absolute relative equal treatment over time. Even if it is again necessary in the future to adjust the levels of the standard amounts, on account of changes in perspectives and regulations in society, this should not be done as often and with the same rapid impact as when the regulations for income support are amended. The Swedish Enforcement Authority should continue to set a standard amount that may not be taken through attachment of pay. We propose adjusting the standard amounts for children so that families with children are able to retain a higher sum than at present. With our proposal the aggregate standard amount for the families that are subject to attachment of pay would increase by just under million per year. However, this does not mean that attachment of pay would decrease by the same amount. Many debtors would still pay the whole of their debt, the difference being that the attachment of pay would last for longer. Other debtors would “hit the ceiling” if the standard amount was increased. If a person who now has an attachment of pay amount of has his or her standard amount increased by 000, this does not mean that the creditors lose a monthly payment of 000, instead the figure is . Costs for housing should be calculated separately according to the present principles. What other costs can be taken into account should be regulated in the Enforcement Ordinance instead of in the current notices from the Swedish Enforcement Authority. This includes costs for work, access with children, sickness and dental care. Respite for attachment of pay Before the reform concerning attachment of pay, attachment of pay could only continue for up to six months per calendar year. During the payment-free months the debtor had some possibilities of financial recovery. Now attachment of pay can continue without any break and go on for an unlimited period. But the Swedish En- forcement Authority can grant a respite that means that a pause is made in attachment of pay for a certain period of time. At present the possibility of obtaining more than one respite is relatively limited. We consider that a person who is subject to attachment of pay should be able to obtain a respite several times if needed in order, for example, to be able to buy new non-attachable property or pay unforeseen charges on account of illness or an accident. We propose a supplement to the respite provision in which we make clear that the defendant’s and his or her family’s personal and financial circumstances have to be taken into account when the question of respite is As part of this, the Swedish Enforcement Authority should take account of how long the attachment of pay has lasted. How often it should be possible to grant a respite must be determined after an assessment of the needs in the particular case. If the debtor is given a break in the attachment of pay, this means that the attachment of pay may continue for longer. The creditors will therefore have to wait slightly longer for full payment. In our assessment, however, this proposal is an important safety valve for individuals subject to pay attachment without it leading to any appreciable financial impacts for the creditor collective. The apportionment principle laid down in law If a person whose pay is being attached is living together with a spouse or partner, the reserve amount is decided in the light of the partner’s financial capacity to contribute to the maintenance of the family. This “apportionment principle” is not laid down in the Enforcement Code but is set out in the general advice issued by the Swedish Enforcement Authority. The principle is based on the provisions of the Marriage Code that each spouse shall contribute according to his or her capacity to the maintenance needed to satisfy their common and personal needs. We consider that this principle should still be applicable. Since the enforcement regulations should be efficient, predictable and legally secure, the apportionment principle should be laid down in law. No reconsideration of the attachment of pay decision when the change is insignificant We propose that the Swedish Enforcement Authority should not vary a decision on attachment of pay if the change would be of no importance for the applicant and defendant. Today the Swedish Enforcement Authority sends new decisions to all debtors and their employers if the standard amount in attachment of pay is altered as a result of the annual recalculation carried out so that the amounts follow changes in the level of prices even if the change is minimal. This proposal results in an annual saving of about million in postage costs alone. Then there is also reduced administration for employers and paying authorities. Better safeguards in eviction Eviction means that a previous owner or holder of a user right is forced to move from real property, a dwelling or some other space. Often eviction takes place after it has been established that a right of user has been forfeited. Eviction can also take place after a compulsory sale of real property or a cooperative housing title if the buyer requests enforcement assistance to remove the previous owner or holder of the user right. In 2015 the Swedish Enforcement Authority received 6 684 applications for eviction. 2 224 of them were enforced. 472 children were affected by an eviction. Another 1 581 children risked being affected by an eviction that was, however, not enforced for various reasons. Being forced to move from a home is a very far-reaching measure. It is therefore important that there are sufficient safeguards for a person who risks eviction at the same time as the applicant’s right to gain access to the property must be satisfied. An obligation to move can only be enforced if the obligation has been established in a judgment that has gained legal force or contains a special order that it may be enforced before it gains legal force. Such an order can be rendered ineffective if a higher court orders a stay after the judgment has been appealed. The summary procedure at the Swedish Enforcement Authority involves a simplified procedure. If the application is contested, the case is transferred to a court, but if the applicant does not reply within the prescribed period, the Swedish Enforcement Authority issues a ruling. This ruling may be enforced before it has gained legal force. If the defendant applies for re-opening of the case, the court can order a stay. We have considered whether a requirement should be introduced to the effect that an enforcement title must have gained legal force before an eviction may be enforced or whether extended possibilities for a court to order a stay should be introduced. However, we consider that the current regulations in combination with our proposal of a statutory obligation for the Swedish Enforcement Authority to apply the principle of proportionality and to give special con- sideration to whether the eviction relates to the home of the defendant or a third party if a stay of enforcement is to be considered provide sufficient safeguards. We therefore consider that there is no need to introduce any additional possibilities of postponing the enforcement of an eviction. We also consider that the current deadlines are appropriate and well-balanced. In cases of eviction from a home the Swedish Enforcement Authority shall always notify the municipal social welfare committee in advance so that the social welfare committee is able to help families with children, in particular, who are forced to move from their home. We propose that the Swedish Enforcement Authority should always check that the social welfare committee has received the notification. We also propose that the Swedish Enforcement Authority should notify that social welfare committee as soon as a home has been attached so as to enable the social welfare committee to work to counter or facilitate a possible future sale of the home and subsequent enforcement assistance. effective handling of eviction property leads to lower storage costs When the Swedish Enforcement Authority enforces an eviction, it often finds property that is not taken in hand by the person to be evicted. In many instances the handling of eviction goods by the Swedish Enforcement Authority entails practical difficulties and costs a lot of money. In the past two years the annual cost has been between and 10 million. Central government has paid the bulk of this cost. We propose that the Swedish Enforcement Authority should be able to throw away property that is obviously of no value or that should not be stored for some other reason. Before the property is thrown away, the parties should be notified if this may be of importance to them. For the Swedish Enforcement Authority this proposal means that it will not need to store as much property as at present and this will lead to lower storage costs for central government. It should be possible to attach cooperative housing titles in the same way as single-family home properties Under certain circumstances cooperative housing titles can be exempted from attachment because the defendant has a need of the property, what is called ‘non-attachable property’. The underlying purpose is to protect the defendant and the defendant’s family for social reasons related to housing. But there is no corresponding protection for other housing tenures apart from the protection given to rental homes, which are protected because they cannot be sold and therefore have no asset value that can be attached. Single-family home properties may be attached as long as this is justifiable in view of the financial outcome and is also proportionate in other respects. There is also a strong need in present-day society for social protection for housing. But the need for protection is the same for a person who owns a single-family home property or some other housing as for a person who owns a cooperative housing title. We consider that this need for protection should be satisfied by the Swedish Enforcement Authority making an assessment of justifiability and proportionality in each specific case before a home is attached, and not, as now, by giving cooperative housing titles special treatment through provisions on non-attachable property. We therefore propose that it should be possible to attach cooperative housing titles in the same way as singlefamily home properties. A more modern procedure for the compulsory sale of real property