Common Position (EC) No 19/2004

adopted by the Council on 6 February 2004

with a view to adopting Regulation (EC) No .../2004 of the European Parliament and of the Council of ... creating a European enforcement order for uncontested claims

(2004/C 79 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 61(c) and the second indent of Article 67(5) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the Opinion of the European Economic and Social Committee(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1) The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, inter alia, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market.

(2) On 3 December 1998, the Council adopted an Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice(4) (the Vienna Action Plan).

(3) The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area.

(4) On 30 November 2000, the Council adopted a programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters(5). This programme includes in its first stage the abolition of exequatur, that is to say, the creation of a European Enforcement Order for uncontested claims.

(5) The concept of "uncontested claims" should cover all situations in which a creditor, given the verified absence of any dispute by the debtor as to the nature or extent of a pecuniary claim, has obtained either a court decision against that debtor or an enforceable document that requires the debtor's express consent, be it a court settlement or an authentic instrument.

(6) The absence of objections from the debtor as stipulated in Article 3(1)(b) can take the shape of default of appearance at a court hearing or of failure to comply with an invitation by the court to give written notice of an intention to defend the case.

(7) This Regulation should apply to judgments, court settlements and authentic instruments on uncontested claims and to decisions delivered following challenges to judgments, court settlements and authentic instruments certified as European Enforcement Orders.

(8) In its Tampere conclusions, the European Council considered that access to enforcement in a Member State other than that in which the judgment has been given should be accelerated and simplified by dispensing with any intermediate measures to be taken prior to enforcement in the Member State in which enforcement is sought. A judgment that has been certified as a European Enforcement Order by the court of origin should, for enforcement purposes, be treated as if it had been delivered in the Member State in which enforcement is sought. In the United Kingdom, for example, the registration of a certified foreign judgment will therefore follow the same rules as the registration of a judgment from another part of the United Kingdom and is not to imply a review as to the substance of the foreign judgment. Arrangements for the enforcement of judgments should continue to be governed by national law.

(9) Such a procedure should offer significant advantages as compared with the exequatur procedure provided for in Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(6), in that there is no need for approval by the judiciary in a second Member State with the delays and expenses that this entails.

(10) Where a court in a Member State has given judgment on an uncontested claim in the absence of participation of the debtor in the proceedings, the abolition of any checks in the Member State of enforcement is inextricably linked to and dependent upon the existence of a sufficient guarantee of observance of the rights of the defence.

(11) This Regulation seeks to promote the fundamental rights and takes into account the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full respect for the right to a fair trial as recognised in Article 47 of the Charter.

(12) Minimum standards should be established for the proceedings leading to the judgment in order to ensure that the debtor is informed about the court action against him, the requirements for his active participation in the proceedings to contest the claim and the consequences of his non-participation in sufficient time and in such a way as to enable him to arrange for his defence.

(13) Due to differences between the Member States as regards the rules of civil procedure and especially those governing the service of documents, it is necessary to lay down a specific and detailed definition of those minimum standards. In particular, any method of service that is based on a legal fiction as regards the fulfilment of those minimum standards cannot be considered sufficient for the certification of a judgment as a European Enforcement Order.

(14) All the methods of service listed in Articles 13 and 14 are characterised by either full certainty (Article 13) or a very high degree of likelihood (Article 14) that the document served has reached its addressee. In the second category, a judgment should only be certified as a European Enforcement Order if the Member State of origin has an appropriate mechanism in place enabling the debtor to apply for a full review of the judgment under the conditions set out in Article 19 in those exceptional cases where, in spite of compliance with Article 14, the document has not reached the addressee.

(15) Personal service on certain persons other than the debtor himself pursuant to Article 14(1)(a) and (b) should be understood to meet the requirements of those provisions only if those persons actually accepted/received the document in question.

(16) Article 15 should apply to situations where the debtor cannot represent himself in court, as in the case of a legal person, and where a person to represent him is determined by law as well as situations where the debtor has authorised another person, in particular a lawyer, to represent him in the specific court proceedings at issue.

(17) The courts competent for scrutinising full compliance with the minimum procedural standards should, if satisfied, issue a standardised European Enforcement Order certificate that makes that scrutiny and its result transparent.

(18) Mutual trust in the administration of justice in the Member States justifies the assessment by the court of one Member State that all conditions for certification as a European Enforcement Order are fulfilled to enable a judgment to be enforced in all other Member States without judicial review of the proper application of the minimum procedural standards in the Member State where the judgment is to be enforced.

(19) This Regulation does not imply an obligation for the Member States to adapt their national legislation to the minimum procedural standards set out herein. It provides an incentive to that end by making available a more efficient and rapid enforceability of judgments in other Member States only if those minimum standards are met.

(20) Application for certification as a European Enforcement Order for uncontested claims should be optional for the creditor, who may instead choose the system of recognition and enforcement under Regulation (EC) No 44/2001 or other Community instruments.

(21) When a document has to be sent from one Member State to another for service there, this Regulation and in particular the rules on service set out herein should apply together with Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters(7), and in particular Article 14 thereof in conjunction with Member States' declarations made under Article 23 thereof.

(22) Since the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(23) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(8).

(24) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Regulation.

(25) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Regulation, and is therefore not bound by it or subject to its application.

(26) Pursuant to the second indent of Article 67(5) of the Treaty, the codecision procedure is applicable from 1 February 2003 for the measures laid down in this Regulation,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

Subject matter

The purpose of this Regulation is to create a European Enforcement Order for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement.

Article 2

Scope

1. This Regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

2. This Regulation shall not apply to:

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;

(d) arbitration.

3. In this Regulation, the term "Member State" shall mean Member States with the exception of Denmark.

Article 3

Enforcement titles to be certified as a European Enforcement Order

1. This Regulation shall apply to judgments, court settlements and authentic instruments on uncontested claims.

A claim shall be regarded as uncontested if:

(a) the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings; or

(b) the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or

(c) the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin; or

(d) the debtor has expressly agreed to it in an authentic instrument.

2. This Regulation shall also apply to decisions delivered following challenges to judgments, court settlements or authentic instruments certified as European Enforcement Orders.

Article 4

Definitions

For the purposes of this Regulation, the following definitions shall apply:

1. "judgment": any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court;

2. "claim": a claim for payment of a specific sum of money that has fallen due or for which the due date is indicated in the judgment, court settlement or authentic instrument;

3. "authentic instrument":

(a) a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which:

(i) relates to the signature and the content of the instrument; and

(ii) has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates;

or

(b) an arrangement relating to maintenance obligations concluded with administrative authorities or authenticated by them;

4. "Member State of origin": the Member State in which the judgment has been given, the court settlement has been approved or concluded or the authentic instrument has been drawn up or registered, and is to be certified as a European Enforcement Order;

5. "Member State of enforcement": the Member State in which enforcement of the judgment, court settlement or authentic instrument certified as a European Enforcement Order is sought;

6. "court of origin": the court or tribunal seised of the proceedings at the time of fulfilment of the conditions set out in Article 3(1)(a), (b) or (c);

7. in Sweden, in summary proceedings concerning orders to pay (betalningsföreläggande), the expression "court" includes the Swedish enforcement service (kronofogdemyndighet).

CHAPTER II

EUROPEAN ENFORCEMENT ORDER

Article 5

Abolition of exequatur

A judgment which has been certified as a European Enforcement Order 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.

Article 6

Requirements for certification as a European Enforcement Order

1. A judgment on an uncontested claim delivered in a Member State shall, upon application at any time to the court of origin, be certified as a European Enforcement Order if:

(a) the judgment is enforceable in the Member State of origin; and

(b) the judgment does not conflict with the rules on jurisdiction as laid down in sections 3 and 6 of Chapter II of Regulation (EC) No 44/2001; and

(c) the court proceedings in the Member State of origin met the requirements as set out in Chapter III where a claim is uncontested within the meaning of Article 3(1)(b) or (c); and

(d) the judgment was given in the Member State of the debtor's domicile within the meaning of Article 59 of Regulation (EC) No 44/2001, in cases where

- a claim is uncontested within the meaning of Article 3(1)(b) or (c); and

- it relates to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession; and

- the debtor is the consumer.

2. Where a judgment certified as a European Enforcement Order has ceased to be enforceable or its enforceability has been suspended or limited, a certificate indicating the lack or limitation of enforceability shall, upon application at any time to the court of origin, be issued, using the standard form in Annex IV.

3. Without prejudice to Article 12(2), where a decision has been delivered following a challenge to a judgment certified as a European Enforcement Order in accordance with paragraph 1 of this Article, a replacement certificate shall, upon application at any time, be issued, using the standard form in Annex V, if that decision on the challenge is enforceable in the Member State of origin.

Article 7

Costs related to court proceedings

Where a judgment includes an enforceable decision on the amount of costs related to the court proceedings, including the interest rates, it shall be certified as a European Enforcement Order also with regard to the costs unless the debtor has specifically objected to his obligation to bear such costs in the course of the court proceedings, in accordance with the law of the Member State of origin.

Article 8

Partial European Enforcement Order certificate

If only parts of the judgment meet the requirements of this Regulation, a partial European Enforcement Order certificate shall be issued for those parts.

Article 9

Issue of the European Enforcement Order certificate

1. The European Enforcement Order certificate shall be issued using the standard form in Annex I.

2. The European Enforcement Order certificate shall be issued in the language of the judgment.

Article 10

Rectification or withdrawal of the European Enforcement Order certificate

1. The European Enforcement Order certificate shall, upon application to the court of origin, be

(a) rectified where, due to a material error, there is a discrepancy between the judgment and the certificate;

(b) withdrawn where it was clearly wrongly granted, having regard to the requirements laid down in this Regulation.

2. The law of the Member State of origin shall apply to the rectification or withdrawal of the European Enforcement Order certificate.

3. An application for the rectification or withdrawal of a European Enforcement Order certificate may be made using the standard form in Annex VI.

4. No appeal shall lie against the issuing of a European Enforcement Order certificate.

Article 11

Effect of the European Enforcement Order certificate

The European Enforcement Order certificate shall take effect only within the limits of the enforceability of the judgment.

CHAPTER III

MINIMUM STANDARDS FOR UNCONTESTED CLAIMS PROCEDURES

Article 12

Scope of application of minimum standards

1. A judgment on a claim that is uncontested within the meaning of Article 3(1)(b) or (c) can be certified as a European Enforcement Order only if the court proceedings in the Member State of origin met the procedural requirements as set out in this Chapter.

2. The same requirements shall apply to the issuing of a European Enforcement Order certificate or a replacement certificate within the meaning of Article 6(3) for a decision following a challenge to a judgment where, at the time of that decision, the conditions of Article 3(1)(b) or (c) are fulfilled.

Article 13

Service with proof of receipt by the debtor

1. The document instituting the proceedings or an equivalent document may have been served on the debtor by one of the following methods:

(a) personal service attested by an acknowledgement of receipt, including the date of receipt, which is signed by the debtor;

(b) personal service attested by a document signed by the competent person who effected the service stating that the debtor has received the document or refused to receive it without any legal justification, and the date of the service;

(c) postal service attested by an acknowledgement of receipt including the date of receipt, which is signed and returned by the debtor;

(d) service by electronic means such as fax or e-mail, attested by an acknowledgement of receipt including the date of receipt, which is signed and returned by the debtor.

2. Any summons to a court hearing may have been served on the debtor in compliance with paragraph 1 or orally in a previous court hearing on the same claim and stated in the minutes of that previous court hearing.

Article 14

Service without proof of receipt by the debtor

1. Service of the document instituting the proceedings or an equivalent document and any summons to a court hearing on the debtor may also have been effected by one of the following methods:

(a) personal service at the debtor's personal address on persons who are living in the same household as the debtor or are employed there;

(b) in the case of a self-employed debtor or a legal person, personal service at the debtor's business premises on persons who are employed by the debtor;

(c) deposit of the document in the debtor's mailbox;

(d) deposit of the document at a post office or with competent public authorities and the placing in the debtor's mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time limits;

(e) postal service without proof pursuant to paragraph 3 where the debtor has his address in the Member State of origin;

(f) electronic means attested by an automatic confirmation of delivery, provided that the debtor has expressly accepted this method of service in advance.

2. For the purposes of this Regulation, service under paragraph 1 is not admissible if the debtor's address is not known with certainty.

3. Service pursuant to paragraph 1, (a) to (d), shall be attested by:

(a) a document signed by the competent person who effected the service, indicating:

(i) the method of service used; and

(ii) the date of service; and

(iii) where the document has been served on a person other than the debtor, the name of that person and his relation to the debtor,

or

(b) an acknowledgement of receipt by the person served, for the purposes of paragraphs 1(a) and (b).

Article 15

Service on the debtor's representatives

Service pursuant to Articles 13 or 14 may also have been effected on a debtor's representative.

Article 16

Provision to the debtor of due information about the claim

In order to ensure that the debtor was provided with due information about the claim, the document instituting the proceedings or the equivalent document must have contained the following:

(a) the names and the addresses of the parties;

(b) the amount of the claim;

(c) if interest on the claim is sought, the interest rate and the period for which interest is sought unless statutory interest is automatically added to the principal under the law of the Member State of origin;

(d) a statement of the reason for the claim.

Article 17

Provision to the debtor of due information about the procedural steps necessary to contest the claim

The following must have been clearly stated in or together with the document instituting the proceedings, the equivalent document or any summons to a court hearing:

(a) the procedural requirements for contesting the claim, including the time limit for contesting the claim in writing or the time for the court hearing, as applicable, the name and the address of the institution to which to respond or before which to appear, as applicable, and whether it is mandatory to be represented by a lawyer;

(b) the consequences of an absence of objection or default of appearance, in particular, where applicable, the possibility that a judgment may be given or enforced against the debtor and the liability for costs related to the court proceedings.

Article 18

Cure of non-compliance with minimum standards

1. If the proceedings in the Member State of origin did not meet the procedural requirements as set out in Articles 13 to 17, such non-compliance shall be cured and a judgment may be certified as a European Enforcement Order if:

(a) the judgment has been served on the debtor in compliance with the requirements pursuant to Article 13 or Article 14; and

(b) it was possible for the debtor to challenge the judgment by means of a full review and the debtor has been duly informed in or together with the judgment about the procedural requirements for such a challenge, including the name and address of the institution with which it must be lodged and, where applicable, the time limit for so doing; and

(c) the debtor has failed to challenge the judgment in compliance with the relevant procedural requirements.

2. If the proceedings in the Member State of origin did not comply with the procedural requirements as set out in Article 13 or Article 14, such non-compliance shall be cured if it is proved by the conduct of the debtor in the court proceedings that he has personally received the document to be served in sufficient time to arrange for his defence.

Article 19

Minimum standards for review in exceptional cases

1. Further to Articles 13 to 18, a judgment can only be certified as a European Enforcement Order if the debtor is entitled, under the law of the Member State of origin, to apply for a review of the judgment where:

(a) (i) the document instituting the proceedings or an equivalent document or, where applicable, the summons to a court hearing, was served by one of the methods provided for in Article 14; and

(ii) service was not effected in sufficient time to enable him to arrange for his defence, without any fault on his part;

or

(b) the debtor was prevented from objecting to the claim by reason of force majeure, or due to extraordinary circumstances without any fault on his part,

provided in either case that he acts promptly.

2. This Article is without prejudice to the possibility for Member States to grant access to a review of the judgment under more generous conditions than those mentioned in paragraph 1.

CHAPTER IV

ENFORCEMENT

Article 20

Enforcement procedure

1. Without prejudice to the provisions of this Chapter, the enforcement procedures shall be governed by the law of the Member State of enforcement.

A judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement.

2. The creditor shall be required to provide the competent enforcement authorities of the Member State of enforcement with:

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and

(b) a copy of the European Enforcement Order certificate which satisfies the conditions necessary to establish its authenticity; and

(c) where necessary, a transcription of the European Enforcement Order certificate or a translation thereof into the official language of the Member State of enforcement or, if there are several official languages in that Member State, the official language or one of the official languages of court proceedings of the place where enforcement is sought, in conformity with the law of that Member State, or into another language that the Member State of enforcement has indicated it can accept. Each Member State may indicate the official language or languages of the institutions of the European Community other than its own which it can accept for the completion of the certificate. The translation shall be certified by a person qualified to do so in one of the Member States.

3. No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment certified as a European Enforcement Order in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the Member State of enforcement.

Article 21

Refusal of enforcement

1. Enforcement shall, upon application by the debtor, be refused by the competent court in the Member State of enforcement if the judgment certified as a European Enforcement Order is irreconcilable with an earlier judgment given in any Member State or in a third country, provided that:

(a) the earlier judgment involved the same cause of action and was between the same parties; and

(b) the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member State of enforcement; and

(c) the irreconcilability was not and could not have been raised as an objection in the court proceedings in the Member State of origin.

2. Under no circumstances may the judgment or its certification as a European Enforcement Order be reviewed as to their substance in the Member State of enforcement.

Article 22

Agreements with third countries

This Regulation shall not affect agreements by which Member States undertook, prior to the entry into force of Regulation (EC) No 44/2001, pursuant to Article 59 of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, not to recognise judgments given, in particular in other Contracting States to that Convention, against defendants domiciled or habitually resident in a third country where, in cases provided for in Article 4 of that Convention, the judgment could only be founded on a ground of jurisdiction specified in the second paragraph of Article 3 of that Convention.

Article 23

Stay or limitation of enforcement

Where the debtor has

- challenged a judgment certified as a European Enforcement Order, including an application for review within the meaning of Article 19, or

- applied for the rectification or withdrawal of a European Enforcement Order certificate in accordance with Article 10,

the competent court or authority in the Member State of enforcement may, upon application by the debtor:

(a) limit the enforcement proceedings to protective measures; or

(b) make enforcement conditional on the provision of such security as it shall determine; or

(c) under exceptional circumstances, stay the enforcement proceedings.

CHAPTER V

COURT SETTLEMENTS AND AUTHENTIC INSTRUMENTS

Article 24

Court settlements

1. A settlement concerning a claim within the meaning of Article 4(2) which has been approved by a court or concluded before a court in the course of proceedings and is enforceable in the Member State in which it was approved or concluded shall, upon application to the court that approved it or before which it was concluded, be certified as a European Enforcement Order using the standard form in Annex II.

2. A settlement which has been certified as a European Enforcement Order in the Member State of origin shall be enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its enforceability.

3. The provisions of Chapter II, with the exception of Articles 5, 6(1) and 9(1), and of Chapter IV, with the exception of Articles 21(1) and 22, shall apply as appropriate.

Article 25

Authentic instruments

1. An authentic instrument concerning a claim within the meaning of Article 4(2) which is enforceable in one Member State shall, upon application to the authority designated by the Member State of origin, be certified as a European Enforcement Order, using the standard form in Annex III.

2. An authentic instrument which has been certified as a European Enforcement Order in the Member State of origin shall be enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its enforceability.

3. The provisions of Chapter II, with the exception of Articles 5, 6(1) and 9(1), and of Chapter IV, with the exception of Articles 21(1) and 22, shall apply as appropriate.

CHAPTER VI

TRANSITIONAL PROVISION

Article 26

Transitional provision

This Regulation shall apply only to judgments given, to court settlements approved or concluded and to documents formally drawn up or registered as authentic instruments after the entry into force of this Regulation.

CHAPTER VII

RELATIONSHIP WITH OTHER COMMUNITY INSTRUMENTS

Article 27

Relationship with Regulation (EC) No 44/2001

This Regulation shall not affect the possibility of seeking recognition and enforcement, in accordance with Regulation (EC) No 44/2001, of a judgment, a court settlement or an authentic instrument on an uncontested claim.

Article 28

Relationship with Regulation (EC) No 1348/2000

This Regulation shall not affect the application of Regulation (EC) No 1348/2000.

CHAPTER VIII

GENERAL AND FINAL PROVISIONS

Article 29

Information on enforcement procedures and authorities

The Member States shall cooperate to provide the general public and professional circles with information on:

(a) the methods and procedures of enforcement in the Member States; and

(b) the competent authorities for enforcement in the Member States,

in particular via the European Judicial Network in civil and commercial matters established in accordance with Decision 2001/470/EC(9).

Article 30

Information relating to redress procedures, languages and authorities

1. The Member States shall notify the Commission of:

(a) the procedures for rectification and withdrawal referred to in Article 10(2) and for review referred to in Article 19(1);

(b) the languages accepted pursuant to Article 20(2)(c);

(c) the lists of the authorities referred to in Article 25;

and any subsequent changes thereof.

2. The Commission shall make the information notified in accordance with paragraph 1 publicly available through publication in the Official Journal of the European Union and through any other appropriate means.

Article 31

Amendments to the Annexes

Any amendment to the standard forms in the Annexes shall be adopted in accordance with the advisory procedure referred to in Article 32(2).

Article 32

Committee

1. The Commission shall be assisted by the committee provided for by Article 75 of Regulation (EC) No 44/2001.

2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

3. The Committee shall adopt its Rules of Procedure.

Article 33

Entry into force

This Regulation shall enter into force on ....

It shall apply from ...(10), with the exception of Articles 30, 31 and 32, which shall apply from ...(11).

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 203 E, 27.8.2002, p. 86.

(2) OJ C 85, 8.4.2003, p. 1.

(3) Opinion of the European Parliament of 8 April 2003 (not yet published in the Official Journal), Council Common Position of 6 February 2004 and Position of the European Parliament of ... (not yet published in the Official Journal).

(4) OJ C 19, 23.1.1999, p. 1.

(5) OJ C 12, 15.1.2001, p. 1.

(6) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Commission Regulation (EC) No 1496/2002 (OJ L 225, 22.8.2002, p. 13).

(7) OJ L 160, 30.6.2000, p. 37.

(8) OJ L 184, 17.7.1999, p. 23.

(9) OJ L 174, 27.6.2001, p. 25.

(10) 18 months after the adoption of this Regulation.

(11) Date of entry into force.

ANNEX I

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ANNEX II

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ANNEX III

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ANNEX IV

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ANNEX V

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ANNEX VI

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

Under the codecision procedure (Article 251 of the EC Treaty) the Council reached a general approach on 27 November 2003, which led to the adoption on 6 February 2004, by the written procedure, of a common position on the draft Regulation creating a European enforcement order for uncontested claims. The Council took its decision by qualified majority: the Netherlands delegation voted against.

When adopting its position, the Council took into account the opinion of the Economic and Social Committee of 11 December 2002 and the opinion issued by the European Parliament at first reading on 8 April 2003.

The purpose of the draft Regulation is to help abolish the preconditions for the recognition and enforcement in another Member State of any enforceable judgment given concerning a debt, the nature and amount of which have not been contested by the debtor; it removes the obstacles to the recognition of the judgment in another Member State, and abolishes the existing enforcement supervisory measures commonly known as the "exequatur procedure". The Regulation also applies to court settlements and authentic instruments relating to a claim deemed uncontested.

The Regulation is thus a practical application of the principle of mutual recognition which is necessary for the free movement of judgments.

II. ANALYSIS OF THE COMMON POSITION

1. General

The Council's common position remains largely faithful to the Commission's original proposal as modified by the amended proposal sent to the Council on 18 June 2003.

The principal changes made to the text are as follows:

1. In the original proposal for a Regulation, only judgments which had obtained the force of res judicata in the Member State of origin could be certified as European enforcement orders. In the common position adopted by the Council, this condition has been removed: it is necessary and sufficient for the purposes of certification for the judgment to be enforceable in the Member State of origin. At the same time, to guarantee the coherence and efficiency of the system, where the certified judgment is then the subject of an appeal, the appeal judgment itself may be certified, even where the appeal was lodged by the debtor.

This amendment means that the claimant cannot be deprived of the benefit the enforcement order gives him simply by the debtor lodging an appeal.

2. The common position maintains the principle that the issue of an enforcement order certificate is not subject to appeal. It provides, however, that a request may be lodged for a certificate to be rectified in the event of a material error, or withdrawn where it has manifestly been issued wrongly.

3. The consumer is now granted special protection: a judgment relating to an uncontested claim against a debtor who is a consumer can only be certified as a European enforcement order if it has been issued in the Member State in which the debtor is resident.

4. With regard to the minimum standards required for procedures relating to uncontested claims, the original proposal established a hierarchy of methods of service of the document instituting the proceedings. The text of the common position dispenses with that hierarchy but distinguishes between methods of service depending on whether proof has, or has not, been supplied that the document has been served on the debtor. In addition, simple service by post is now permitted, subject to certain conditions.

The common position lays down, however, that methods of service not accompanied by proof that the debtor has received the document are only admissible for the purposes of certifying the judgment if, in accordance with the national law of the State of origin, the debtor has a right to apply for a review of the judgment where he has not received the document instituting the proceedings in time to prepare his defence.

Other amendments, of a more formal nature, have been made to make the text easier to read.

2. Parliament's amendments

The Council has tried to incorporate Parliament's amendments as far as possible.

The substance of Amendment 1 has been taken into account (see recital 26).

Amendment 2 has been taken into account in part; the Council considered that the second part of the text proposed by the Parliament in that amendment was not necessary (Article 3).

Amendment 3 was not incorporated by the Commission in its amended proposal and has not been incorporated by the Council in its common position.

Amendment 4 has become redundant as the common position no longer makes it a condition of certification that the judgment should be final.

The spirit of Amendment 5 was incorporated into the text of the amended proposal and accepted by the Council in its common position (Article 5).

Amendments 6, 7, 8 and 16, concerning the admissibility of an appeal against the issue or the refusal to issue a certificate, have not been accepted as such but their general structure has been. Article 10 of the common position lays down that there is no appeal against the issue of a certificate, but it authorises proceedings for rectification or withdrawal.

Amendment 9 has been incorporated (Article 13(1)(b)).

Amendment 10 has not been accepted because it was considered to be unnecessary.

Amendment 11 is redundant as the common position no longer establishes a hierarchy of methods of service of the document instituting the proceedings.

Amendments 12 and 13 have not been accepted.

The substance of Amendment 14 has been accepted (Article 16(d)).

Amendment 15, the aim of which is to delete Article 19(2) of the original proposal, has not been accepted but Article 18(2) now provides enhanced protection for a defendant in the circumstances envisaged by the provision.

III. CONCLUSION

The Council considers that the text of the common position on the creation of an enforcement order for uncontested claims achieves the balance desired between protection of the rights of the debtor on the one hand, and, on the other, the establishment of an efficient certification system so as to permit the free movement of judgments by removing obstacles to recognition and enforcement in the Member State of enforcement.