Commission communication to the Council and the European Parliament - 'Towards greater efficiency in obtaining and enforcing judgments in the European Union'
Date: 1997-11-26
Institutions: European Commission
Subjects: European convention, civil law, enforcement of ruling, judicial proceedings, jurisdiction

31.1.98

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Commission  communication  to  the  Council  and  the  European  Parliament  "towards  greater
efficiency  in  obtaining  and  enforcing  judgments  in  the  European  Union’

(98/C  33/03)

SUMMARY

This  Communication  has  two  functions.

1.(cid:217)Its  chief  aim 

is  to  facilitate  the  recognition  and
enforcement  of 
in  the  European
judgments  given 
Union,  a  process  which  is  currently  governed  by  the
Brussels  Convention  of  1968,  extended  to  the  EFTA
States  by  the  Lugano  Convention  of  1988.

in 

The  Brussels  Convention  has  allowed  substantial
progress 
the  field  of  enforcement  of  foreign
judgments  passed  in  other  Member  States.  Further
steps  can  still  be  made  to  accelerate  and  simplify  the
procedure  so  as  to  mould  it  more  to  the  needs  of  the
citizen  and  the  firm  by  providing  an  ever  quicker
system  of  exchange,  in  particular  within  the  internal
market.

by 

authorities 

empowered 

To  meet 
this  objective,  proposal  COM(97)  609
final(cid:216)(*)  contains  several  elements.  It  is  proposed  that
checks 
to  make
enforcement  orders  be  confined  to  formal  checks
notably  on  the  basis  of  a  certificate  issued  by  a  court
in  the  State  of  origin  attesting  in  particular  that  the
judgement  to  which  it  relates  is  enforceable.  It  is  also
proposed  that  the  grounds  for  not  recognizing  a
judgment  be  revised;  those  grounds  will  be  reviewable
only 
the  defendant  opposing
enforcement,  and  the  burden  of  proof  will  be  on  him.
Proposals  are  also  made  for  decisions  authorizing
enforcement  to  be  provisionally  enforceable  and  for
the
easier  provisional/protective  measures.  Finally, 
system  of  provisional  and  protective  measures  has
been  reframed  with  the  accent  on  the  European
dimension  of  those  measures.  All  these  proposals  are
incorporated 
for  a  Convention
destined  to  replace  Brussels  Convention.

the  proposal 

if  pleaded 

by 

in 

to 

also 

proposed  Convention 

take  account  of  developments 

incorporates
This 
provisions 
in
economic  relations  and  certain  rulings  of  the  Court  of
Justice  since  the  signing  of  the  Brussels  Convention,
notably  as 
two
proposals  for  new  Protocols  to  replace  those  annexed

jurisdiction.  There  are 

regards 

(*) See  page  20  of  this  Official  Journal.

to  the  Brussels  Convention  (Annexes  1  and  2)  and
suggestions  for  a  parallel  revision  of  the  Lugano
Convention  (Annex  3).  The  Commission  will  take  the
necessary  steps 
the  new
framework  brought  in  by  the  entry  into  force  of  the
Amsterdam  Treaty,  in  relation  to  civil  judicial  co(cid:220)
operation.

to  adapt 

its  work 

to 

2.(cid:217)The  communication  has 

the  added  purpose  of
prompting  comments  from  all  legal  practitioners  and
interested  parties  on  a  series  of  considerations  going
beyond  the  legislative  proposal.  The  idea  is  to  prompt
debate  on  a  common  Union  approach  to  certain
aspects  of  national  laws  of  procedure.

It  is  necessary  to  facilitate  the  free  movement  of
judgements,  but  that  is  not  enough  to  enable  the
citizen  and  firms  to  take  full  advantage  of  the  rights
conferred  on  them  in  the  Union’s  area.  The  objective
is  indeed  to  ensure  as  globally  as  possible  a  swift,
efficient  and  inexpensive  access  to  justice.

justice  within  the 

Problems  for  access  to 
internal
market  due  to  legal/judical  borders  being  maintained
have  already  come  to  light,  notably  in  consumer  liti(cid:220)
gation(cid:216)(˛).  This  is  the  area  where,  taking  into  account
the  generally  small  sums  in  play,  obstacles  to  access  to
justice  are  most  acutely  felt(cid:216)(ˇ).  These  difficulties  also
affect  commercial 
small  and
medium(cid:220)sized  companies,  by  acting  as  a  brake  on
commercial  activity(cid:216)(—).

firms,  particularly 

It  is  therefore  timely  to  provide  the  consumer  and
commercial  firm,  along  with  all  the  European  Union
citizens,  an  improved  procedural  environment.  It  is
proposed  that  to  start  with  a  step(cid:220)by(cid:220)step  approach  be

(˛)(cid:217)Green  Paper  -  Access  of  consumers  to  justice  and  the
settlement  of  Consumer  disputes  in  the  single  market  -
COM(93)  576;  over  a  hundred  contributions  were  sent  to
the  Commission.

(ˇ)(cid:217)A  Eurobarometre  poll,  carried  out  in  1991  revealed  that
difficulties 
in  settling  disputes  form  one  of  the  biggest
obstacles  to  the  development  of  purchases  of  consumer
goods  in  other  Member  States.

(—)(cid:217)Commission  Recommendation  of  12  May  1995  on  payment
periods  in  commercial  transactions.  OJ  L  127,  10.6.1995  and
Commission  Communication  relating  to  that  Recommen(cid:220)
dation,  OJ  C  144,  10.6.1995.

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31.1.98

followed  and  that  attention  be  focused  on  essential
questions.  It  is  worth  reflecting  on  the  establishment
in  each  Member  State  of  a  rapid  procedure  for  the
payment  of  money  debts  but  also  of  high(cid:220)performance
instruments  for  effective  enforcement  of  judgments
(concentrating  initially  on  seizures  of  bank  accounts).
The  effectiveness  of  enforcement  depends  heavily  on
knowledge  of 
the  debtor’s  assets;  consequently,
thought  also  needs  to  be  given  to  the  various  means
of  improving,  transparency  in  this  respect  and  to  the
development  of  cooperation  between  enforcement
authorities.

is  designed 

2.(cid:217)The  Brussels  Convention  is  indelibly  linked  to  the
whole  Community  process  and 
to
complement  the  liberties  provided  for  in  the  EC
Treaty  with  a  more  fluid  system,  for  the  circulation
of  judgments(cid:216)((cid:210)).  The  Court’s  autonomous  uniform
interpretation  of  its  provisions  proceeds  from  the
concept  of  non(cid:220)discrimination  and  equal  rights  for
all  litigants  in  the  Union.  The  Convention  served  as
the  basis  for  a  similar  Convention  between  the
Member  States  and  the  EFTA  States,  signed  at
Lugano  on  16  September  1988(cid:216)((cid:211)).

These  two  aspects  together  contribute  to  greater  effi(cid:220)
ciency  in  obtaining  and  enforcing  judgments  in  the
European  Union.

Any  person  wishing  to  make  comments  on  the  second
objective  of  this  Communication  is  welcome  to  write
before  30  April  1998  to:

Mr  Adrian  Fortescue
Task  Force  "Justice  and  Home  Affairs’
European  Commission
Rue  de  la  Loi/Wetstraat  200
B(cid:220)1049  Brussels.

INTRODUCTION

Purpose  of  this  Communication

1.(cid:217)The  free  movement  of 

judgments 

in  Europe 

is
currently  secured, 
in  most  civil  and  commercial
matters(cid:216)((cid:209)),  by  the  Brussels  Convention  of  1968,
drawn  up  on  the  basis  of  Article  220  (4)  of  the  EC
Treaty  and  subsequently  acceded  to  by  all  the  new
Member  States. 
is  a  particularly  complete
Convention:  it  establishes  rules  governing  the  inter(cid:220)
national  jurisdiction  of  the  courts  of  the  Member
States,  which  enables 
to  be
recognized  downstream,  together  with  strict  rules
for  cases  of  non(cid:220)recognition,  and  it  provides  for  an
enforcement  procedure  that  is  not  only  uniform  but
also  unilateral,  at  least  at  the  initial  stages.

judgments  given 

It 

judicial  cooperation  between 

3.(cid:217)The  Brussel  Convention  is  to  date  the  only  general
instrument  of 
the
Member  States.  Community  law  has  traditionally  left
it  up  to  the  Member  States  to  determine  how  their
authorities  and  courts  operate,  even  though  they  are
the  process  of  applying
heavily 
Community 
European
no 
There 
law(cid:220)enforcement  area  but  rather  a  juxtaposition  of
national  systems  each  configured  as  an  autonomous
body  of  civil  procedure.  Their  respective  bodies  of
law  are  the  fruit  of  their  respective  historical  back(cid:220)
grounds  and  vary  widely  in  consequence.

involved 

law. 

in 

is 

In  this  context,  this  Communiction  serves  two  purposes:

recognition 

- It  presents  a  set  of  practical  proposals  to  further
the 
enforcement  of
and 
facilitate 
judgments 
in  the  European  Union.  It  contains  a
proposal  for  a  Convention  which  takes  into  account
recent  developments  in  economic  relations  and  certain
rulings  by  the  Court  of  Justice.  It  also  contains
proposals 
the  Convention
(Annexes  1  and  2)  and  the  Commission’s  suggestions
the  Lugano
regarding 
Convention  (Annex  3).  The  proposals  are  based  on
Article  K3  (c)  of  TEU:  Following  the  entry  into  force
of  the  Treaty  of  Amsterdam  they  will  be  adapted
taking  into  account  the  new  framework  applicable  to
civil  judicial  cooperation.

for  new  Protocols 

the  parallel 

revision  of 

to 

- It  has  the  added  purpose  of  generating  debate  and
prompting  reactions  and  suggestions  from  all  circles
secure
in  possible  Union  action 
interested 

to 

((cid:209))(cid:217)Some  matters  are  excluded:  But  there  is  a  draft  Convention
jurisdiction  and  the  recognition  and  enforcement  of

on 
judgments  in  matrimonial  causes  (Brussels  II),  q.v.

((cid:210))(cid:217)Case  C(cid:220)398/92,  Mund  and  Fetner  [1994(cid:129)  ECR  I(cid:220)474

(judgment  given  on  10  Febuary  1994).

((cid:211))(cid:217)OJ  L  319,  25.11.1988,  p.  9

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justice.  There 

equivalent  access  of  litigants  to  efficient,  swift  and
inexpensive 
are  no  operational
proposals  in  this  second  part,  which  is  directed  solely
to  gathering  reactions  and  suggestions 
from  all
interested  circles  on  the  avenues  offered  for  explo(cid:220)
ration.

Background

proof,  the  impact  of  an  appeal,  the  enforceability  of
the  resultant  order  -  these  are  matters  that  escape
the  comprehension  of 
the  uninitiated.  Rules  of
procedure  are  already  substantially  arcane  in  the
purely  national  context;  they  are  even  more  so  in  the
cross(cid:220)border  context.  In  an  integrated  area,  however,
all  ought  to  have  easy  access  to  the  rules  of  the  game
and  ought  to  know,  before  deciding  to  embark  on
proceedings,  what  their  rights  and  duties  are,  what
formalities  are  to  be  complied  with,  what  the  effect
of  the  resultant  documents  will  be,  what  effect  the
judgment  will  have  and  what  redress  procedures  are
available,  not 
rules  governing
enforcement  of  judgment.

to  mention 

the 

4.(cid:217)Since  it  was  signed  in  1968,  the  Brussels  Convention
has  undergone  only  limited  changes.  There  has  been
its  provisions,  merely  such
no  general  review  of 
adaptations  as  were  necessitated  by  the  accession  of
new  Member  States.  Following  accessions,  certain
provisions  of  the  Lugano  Convention  have  diverged
from  those  of  the  Brussels  Convention.  Practical
the  difficulties
application  of  both  has  revealed 
inherent  in  some  of  them.

On  top  of  the  non(cid:220)transparency  problem,  there  is
the  problem  of  varying  costs(cid:216)((cid:212)).  In  some  Member
States  advocates  charge  high  fees  and  expenses,  and
the  costs  of  the  registration  (exequatur)  procedure
where  they  are  chargeable  are  a  further  barrier  to
access  to  justice,  often  constituting  a  frank  disin(cid:220)
centive(cid:216)((cid:213)).

inherent 

implementation  of 

5.(cid:217)Despite  the  progress  achieved  as  a  result  of  the
Brussel  Convention, 
the
the 
recognition  and  enforcement  procedures  takes  far
too  long  and  costs  too  much.  The  costs  and  delays
are  added  on  to  those  already 
in  the
national  procedures  and  are  of  such  a  nature  as  to
influence  the  choice  of  forum 
in  favour  of  the
country  where  enforcement  is  to  be  sought  so  as  to
avoid  the  registration  (exequatur)  procedure.  These
further  obstacles,  especially  in  the  event  of  a  small
claim,  can  be  a  disincentive  to 
litigation  where
enforcement  is  to  be  sought  against  an  adversary  or
assets  in  another  country.  Moreover,  there  is  a  risk
that  assets  will  escape  the  enforcement  procedure  if
it 
free
movement  of  judgments  between  Member  States.

is  delayed.  These  barriers 

impede 

the 

National  procedures,  often  opaque  and  costly  to
varying  degrees,  also  vary  in  their  degree  of  effec(cid:220)
tiveness.  Certain  Member  States  have  established
special  quick  and  cheap  procedures  that  more  closely
match 
the  needs  of  consumers  and  businesses.
Others,  by  contrast,  continue  to  preserve  more
the
complex  procedures  which  may  overburden 
courts  and 
lengthen  the  time  needed  to  obtain
judgment.  The  duration  of  the  procedures  is  often  a
blessing  for  "bad  debtors’.

Content  of  this  Communication

6.(cid:217)Apart 

from 

relations 

the  question  of 
between 

free  movement,
and
private(cid:220)law 
individuals 
economic  operators,  even  where  rules  of  Community
law  underpin  them,  are  set  in  the  context  of  an  area
where  widely(cid:220)divergent  procedural  systems  coexist
and  render  procedures  less  transparent  than  they
might  be,  while  procedures  vary  in  cost  and  effec(cid:220)
tiveness.

The  Procedures  for  lodging  actions,  the  computation
of  time(cid:220)limits,  the  rules  of  evidence,  the  burden  of

7.(cid:217)The 

improvement  of 

free  movement  of
judgments  given  by  the  courts  of  the  Member  States
is  currently  under  discussion  in  the  Council  in  two
revision
parallel  but  distinct  contexts  - 

the 

the 

((cid:212))(cid:217)The  Green  paper  on  Access  to  Justice  for  Consumers  high(cid:220)
lighted  that  the  average  cost  (court  and  counsel  fees)  of
court  settlement  in  EC  litigations  for  a  claim  of  around
ECU  2(cid:216)000,  goes  up  to  around  ECU  2(cid:216)500  for  the  plaintiff.
((cid:213))(cid:217)This  much  is  clear  from  the  replies  to  the  Commission’s
questionnaire  in  the  preparatory  work  for  the  European  writ
of  execution  and  from  its  study  on  Cost  of  Judicial  Barriers
for  Consumers  in  the  Single  Market,  following  up  the  Green
Paper  on  Access  to  Justice  for  Consumers.

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the  Brussels  and  Lugano  Conventions  and

of 
proceedings  on  a  "European  enforcement  order’.

departments  came  together(cid:216)(˛˝).  Under  the  Dutch
Presidency  there  have  been  several  meetings  in  the
Council.

8.(cid:217)Work  on  the  re(cid:220)examination  of  the  Brussels  and
Lugano  Conventions,  now  at  the  exploratory  stage,
originated  in  the  fact  that  in  the  Convention  of
29  November  1996  for  the  accession  of  Austria,
Finland  and  Sweden  to  the  Brussels  Convention  it
was  not  possible  to  absorb  the  amendments  (other
than  the  purely  technical  ones)  requested  by  the
acceding  States.  Moreover,  the  Standing  Commitee
of  the  Lugano  Convention  has  repeatedly  called,
notably  at 
for
alignment  of  the  two  Conventions.

fourth  meetings, 

third  and 

its 

The  Member  States  and  the  Commission  share  the
view  that  the  opportunity  should  be  taken  when  this
alignment  process  is  conducted  to  review  certain
provisions  of  the  two  Conventions  in  the  light  of  the
growing  complexity  of  human  relations  and  business
activity,  trends  in  the  relevant  categories  of  litigation
and  the  Court  of  Justice’s  case(cid:220)law.  There  have
already  been  discussions 
in  the  Council  and  the
Lugano  Standing  Committee  on  the  basis  of  written
submissions  from  the  Member  States  in  order  to
identify  the  provisions  that  might  be  suitable  for
revision.

foreign 

9.(cid:217)In  1995 
the  Commission  began 
thinking  about
whether 
the  Member  States  should  preserve  a
judgments
procedure  of  registration  of 
(exquatur)  for  enforcement  and  about  the  possible
outlines  of  an  enforcement  order  valid  without
restriction  everywhere  without  special  procedures  in
the  Member  States  -  the  "European  enforcement
order’.  The  freedom  of  movement  of  judgments,
which  ought  to  be  the  corollary  of  the  other
freedoms  of  movement,  has  no  practical  reality  in
positive  law:  to  cross  a  border  and  be  enforced  in
another  Member  States,  any  writ,  be  it  judicial  or
not,  needs  a  passport,  so  to  speak,  issued  by  the
Member  State  of  enforcement  in  the  form  of  an
endorsement  for  execution  or  the  equivalent.

At  the  same  several  Member  States  have  shown  their
interest  in  this  topic,  which  was  incorporated  in  the
Council’s  multiannual  work  programme  in  the  field
of  justice  and  home  affairs  cooperation(cid:216)((cid:214)).  Finland
initiative  of  organizing  a  seminar  on
took 
the 
it  at  Helsinki 
large
in  March  1997  at  which  a 
number  of  experts  from  the  the  academic  and
professional  worlds  and  from  national  government

((cid:214))(cid:217)OJ  C(cid:216)319,  26.10.1996.

the 

that 

registration 

establishing 

the  reference 

The  need  for  a  uniform  procedure  for  obtaining  a
writ  in  the  State  of  origin  as  a  precondition  for
(exequatur)
the  elimination  of 
procedures  was  a  key  point  made  in  these  various
discussions,  which  explains 
to  a
"European  enforcement  order’.  It  has  been  ascer(cid:220)
tained,  however, 
a  uniform
procedure  in  the  State  of  origin  and  abolishing  the
registration  (exequatur)  procedure  are  two  distinct
questions,  the  solution  to  one  not  being  dependent
on  the  solution  to  the  other.  It  has  also  emerged  that
(exequatur)
full 
procedure  is  inconceivable,  if  only  because  of  the
wide  procedural  divergences  between  Member  States
as  regards  enforcement.  The  object  is  therefore  to
simplify  and  lighten  the  registration  procedure  as  far
as  possible  rather  than  to  abolish  it.

abolition  of 

registration 

the 

them 

to  be  put 

in  cross(cid:220)border 

in  place  quickly 

i.e.  proceedings 
procedure 

10.(cid:217)The  question  of  provisional  and  protective  measures
has  also  been  raised  in  the  preparatory  work,  The
need  for 
is
particularly  acute 
litigation,  on
account  of  the  time  inevitably  taken  by  proceedings
involving  the  registration
abroad, 
(exequatur) 
national
on 
proceedings,  but  also  of  the  very  great  variety  of
different  legal  instruments  in  use  in  the  Member
States.  The  Brussels  Convention  deals  with  these
measures  only  as  a  marginal  matter,  and  special  rules
are  accordingly  needed  both  as  regards  jurisdiction
to  order  them  and  the  conditions  for  giving  effect  to
them.

top 

of 

11.(cid:217)The  draft  proposal  included  in  this  Communication
does  not  set  out  to  narrow  the  current  wide  diver(cid:220)
gences  between  national  procedural  laws.

so 

believes 

the  Commission 

a
Even, 
supplementary  step  forward  should  be  taken  and  that
a  debate  should  be  launched  on  the  substance  of  the
problem  of  litigation  in  Europe,  not  just  in  terms  of
cooperation  between  courts  but  in  much  broader
to  rapid,  efficient  and
terms  of  equal  access 

that 

(˛˝)(cid:217)To  feed 

its  own  reflections  and  enrich  these  debates,
the  Commission  widely  circulated  a  questionnaire  in  prep(cid:220)
aration  for  the  Helsinki  seminar;  this  went  to  European
associations 
(notaries/
representing  professional  circles 
solicitors,  advocates, 
judiciary,  bailiffs  and  court
the 
registrars).  The  replies  were  collated  for  the  seminar.

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inexpensive  justice.  The  Commission  intends  to  have
legal  practitioners  and  all  other 
interested  circles
closely  associated  with  its  work  on  this.

of 

sound 

operation 

Security  as  to  the  law  and  trust  in  judicial  insti(cid:220)
tutions  are  important  conditions  for  the  development
the  Community’s
and 
frontier(cid:220)free  area.  Hence  the  need  to  explore  how
that  security  and  that  trust  can  be  enhanced  in  a
more  horizontal  perspective  for  the  benefit  of  all
citizens  and  businesses,  subject  always,  of  course,  to
compliance  with  the  principles  of  subsidiarity  and
proportionality.

-(cid:217)Lastly,  claims  have  increasingly  to  be  recovered
abroad.  International  cooperation  should  make
recovery 
therefore
easier.  The  Commission 
suggests  enhancing  such  cooperation,  possibly  via
between
exchange 
a 
enforcement  authorities  in  the  Member  States,
subject  to  compliance  with  their  legislation  and
practice,  particularly  with 
to  data(cid:220)
protection  (II.4).

information 

scheme 

regard 

The  prospects

12.(cid:217)This  Communication  accordingly  contains  a  second
part  describing  the  difficulties  generated  by  divergent
national  procedural 
the
debate  on  a  number  of  additional  questions  which
the  Commission  would  like  to  see  dealt  with  in
greater  depth.

legislation  and  opening 

-(cid:217)The  first 

is  the  procedure  for  obtaining  an
enforcement  order  in  the  State  of  origin  (II.1).
The  principle  of  equality  of  armaments,  the
speed  with  which  the  business  world  operates
and  the  consequent  risk  that  the  debtor’s  assets,
on  which  the  creditor’s  action  is  targeted,  will
litigants’
disappear,  all  militate 
having 
have
access 
comparable  results  in  terms  of  time(cid:220)consumption,
cost  and  effectiveness.  The  Commission  has
concluded,  therefore,  that  special  attention  must
initially  be  paid  to  the  possibility  in  all  Member
States  of  a  rapid  procedure  for  money  claims.

in  favour  of 

procedures 

that 

to 

is 

It 

required. 

-(cid:217)This  Communication  also  goes  into  the  question
of  enforcement  proper  (II.2).  A  gradual  approach
is 
that
reflections  be  confined  initially  to  the  practice  of
seizure  of  bank  accounts  so  that  the  principles
underlying  the  procedure  can  be  ascertained  and
common  guidelines  for  a  European  principle  can
be  devised.

therefore  proposed 

-(cid:217)Closely  linked  to  enforcement  procedures  is  the
important  topic  of  transparency  of  assets  (II.3).
The  Commission  considers  that  litigants  in  the
Union  ought  to  have  comparable  facilities  at
their  disposal  in  this  respect  and  proposes  that
thought  be  given 
to  a  possible  generalized
application  of  the  "assets  declaration’  principle  in
use  in  some  Member  States.

13.(cid:217)A  major  objective  of  the  new  treaty  is  to  develop  and
maintain  the  Union  as  an  "area  of  freedom,  security
and  justice’.  In  order  to  create  such  an  area,  civil
judicial  cooperation  has  been  transferred  to  a  new
chapter  of 
to  policies
the  EC  Treaty  relating 
pursuant  to  this  objective  and  now  appears  in  Article
73M.  This  article  allows  notably  for  measures  to  be
taken  to  eliminate  obstacles  to  the  smooth  working
of  civil  rulings  by  favouring  compatibility  between
the  rules  of  civil  procedure  applicable  in  Member
States.  These  measures  are  linked  to  the  situations  of
incidents  and  the  necessity  for  the
trans(cid:220)border 
internal  market.  The
smooth  working  of 
to 
thus  bears  withness 
Amsterdam  Treaty 
the
Member 
extreme
awareness 
importance  of  this  field  for  European  integration
and  for  the  efficiency  of  the  internal  market  in
particular.

States’ 

the 

the 

of 

It  will  offer  European  citizens  and  businesses  the
environment  they  need  on  a  procedural  level,  for
actions  in  national  courts.

The  Brussels  Convention  and  the  rules  relating  to
civil  procedure  are  of  ever  increasing  importance  in
relations  between  citizens  and  businesses 
in  an
increasingly  integrated  internal  market,  to  which  the
rapid  development  of  electronic  transactions  will  add
a  new  dimension  in  the  years  to  come.  It  seems
essential  to  amplify  the  functional  character  of  rules
in 
the
enforcement  of 
civil  and
commercial  matters.  This  need  comes  in  part  from
an  increasingly  narrow  integration  process  in  the
internal  market  and  partly,  from  the  implications
raised  by  the  prospective  future  enlargement  of  the
Community.

future,  particularly 

those  regarding 

rulings  on 

judicial 

the 

It  is  in  the  light  of  this  double  prospect  of  tighter
integration  and  enlargement,  that  the  Commission

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to 

firstly, 

initiatives 

would  like  to  stimulate  a  debate  on  cooperation  in
civil  matters.  The  Commission  feels  that  it  is  most
in  stages.  It
its 
appropriate  to  present 
proposes, 
the  circulation  of
improve 
judgments  in  the  framework  of  the  existing  judicial
system  and  to  initiate  reflection  on  other  aspects  of
the  problem  as  from  now.  While  waiting  for  the  new
Treaty  to  enter  into  force,  the  proposals  made  are
based  on  the  current  judicial  system,  while  reflecting
thoroughly  on  the  fields  covered  by  this  initiative.  It
should  be  noted  that  the  Amsterdam  Treaty  will
allow  the  Convention  instrument  to  be  replaced  by
Community  instruments  with  the  institutional  effects
this  entails,  without  requiring  a  ratification  process
on  the  part  of  the  Member  States  and  potential
candidates 
enlargement.  The  Commission
reserves  its  position  to  take  new,  complementary
initiatives  on  the  subjects  reflected  upon,  or  to
present,  at  the  appropriate  time,  a  proposal  within
the  framework  of  the  new  Treaty,  consistent  with
transforming 
into  a  Community
instrument,  taking  care,  where  possible,  to  maintain
the 
future  Community
the  Lugano  Convention  which
instrument  and 
extends 
the
Member  States  of  the  AELE.

the  Brussels  Convention 

the  Convention 

between 

parallel 

rules 

the 

for 

to 

possible,  notably  following  the  changes  made  by  the
most  recent  accession  Conventions(cid:216)(˛˛).  It 
is  also
agreed  that  certain  provisions  may  be  re(cid:220)assessed  in
the  light  of  practical  experience  and  of  interpre(cid:220)
tations  put  on  them  by  the  Court  of  Justice.  After
well(cid:220)nigh  thirty  years’  practical  operation, 
it  has
been  found  that  Title  II  (jurisdiction)  has  been  the
most  difficult  to  interpret  and  apply.  In  this  context,
the  Commission  proposes  a  rearrangement  of  these
jurisdictions.  The  point  is  to  enhance  certainty  as  to
the  mechanisms  and  effectiveness  by  providing  for
autonomous  definitions  of  certain  concepts  in  place
of  a  general  renvoi  to  the  concepts  of  national  law
(e.g.  the  definition  of  "court  first  seised’  in  relation  to
lis  pendens  and  the  concept  of  "provisional,  including
protective,  measures’  (cf.  Chapter  II)).  Finally,  the
new  Convention,  like  the  Brussels  Convention,  is
part  of  the  acquis  of  Community  legislation,  it  must
therefore  be  in  the  Act  of  Accession  of  new  Member
into  force  by  the  appropriate
States  and  enter 
procedure. 
include
therefore  proposed 
is 
provisions  to  this  effect.

to 

It 

I. FREE  MOVEMENT  OF  JUDGMENTS

14.(cid:217)Any  new  efforts  to  improve  the  free  movement  of
judgments  in  civil  and  commercial  matters  in  the
European  Union  will  have  a  direct  impact  on  the
Brussels  and  Lugano  Conventions.  The  Commission
considers  that  the  aim  of  facilitating  the  Union(cid:220)wide
recognition  and  enforcement  of  judgments  given  in
any  Member  State  should  be  pursued  by  means  of  a
general  revision  of  the  Conventions.

I.1. REVISION  OF   THE  BRUS SEL S  AN D  L U GA N O

C O N V E N T I O N S

15.(cid:217)The  Commission  shares  the  Member  States’  view
that  the  current  revision  exercise  cannot  be  allowed
to  generate  a  major  upheaval  in  the  conventions  or
modify  the  general  structure  and  the  underlying
principles  that  have  proved  their  worth.

The  object  of  the  exercise  is  rather  to  align  the
provisions  of  the  two  Conventions  as  closely  as

I.2. S IMP LI FI E D  R EC OG NITI ON  A N D
E NF OR CE ME N T  PR OC E DUR E

to 

be 

abolish 

16.(cid:217)The  most  radical  solution,  and  the  most  compatible
with  the  concept  of  a  frontier(cid:220)free  law(cid:220)enforcement
area,  would 
registration
(exequatur)  procedure  purely  and  simply.  National
courts  being  European  courts,  judgments  given  in
other  Member  States  would  enjoy  the  same  status  as
judgments  given  "at  home’  and  be  enforceable  in  the
same  way,  with  no  special  review  procedures  and
formalities  attaching  to  the  foreign  judgment.

the 

17.(cid:217)But  the  vast  majority  of  those  consulted  felt  this  was
premature.  To  be  enforceable,  a  foreign  judgment
needs  some  kind  of  "passport’  so  that  it  can  be  given
the  same  treatment  as  a  judgment  given  at  home.
One  of  the  most  commonly  cited  arguments  is  the
concept  of  imperium,  the  power  of  governance,
underlying  the  enforcement  of  a  judgment.  This  is  a
privileged  expression  of  national  sovereignty.  The
other  argument  proceeds  from  the  substantial  diver(cid:220)
gences  between 
the  Member  States’  procedural
systems  as  regards  the  definition  of  an  enforcement
order,  the  procedures  for  enforcing  judgments  and,
above  all,  the  status,  powers  and  responsibilities  of
enforcement  officials.  The  general  view  is  that  there
will  have  to  be  approximations  of  these  definitions,

(˛˛)(cid:217)Portugal  and  Spain  in  1989,  Austria,  Finland  and  Sweden  in

1996.

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statuses  and  procedures  before  radical  change  can  be
introduced.

18.(cid:217)On  the  other  hand,  even  if  there  are  major  barriers
to  a  European  enforcement  order  circulating  uncon(cid:220)
trolled  between  Member  States,  the  Union  has  the
possibility  of  other,  more 
immediately  accessible
facilities.  Considerable  progress  towards  the  free
movement  of  enforcement  orders  could  be  made  by
simplifying 
enforcement
recognition 
procedures.

and 

the 

that  re(cid:220)examination  of 

In  the  Council  the  question  arose  whether  the
changes  should  be  made  by  amendment  of  the
relevant  provisions  of  the  Brussels  Convention  or
whether  it  might  be  preferable  to  establish  a  separate
instrument  applying  only  to  money  judgments.  The
Commission  believes 
the
Brussels  Convention  offers  the  best  context  in  the
present  situation.  For  one  thing,  the  new  recognition
and  enforcement  scheme  is  to  apply  to  all  judgments
in  civil  and  commercial  matters,  and  not  just  to
judgments  ordering  payment  of  a  sum  of  money.
There  is  no  legal  reason  why  the  new  arrangements
should  be  specifically  linked  to  the  pecuniary  or
non(cid:220)pecuniary  nature  of  the  claim.

fundamentally  calling 

instrument
Moreover,  the  creation  of  a  separate 
would  have  serious  disadvantages  and  this  solution
may  well  turn  out  to  generate  more  problems  than
are  to  be  solved.  The  immediate  impact  of  a  new
instrument  would  be  to  deprive  the  mechanism  of
the  Convention  of  the  bulk  of  its  potential  scope
despite  the  intention  declared  in  the  revision  exercise
of  not 
the
context  of  an  instrument  that  is  a  central  pillar  of  the
free  movement  of  judgments  in  Europe.  Superim(cid:220)
posing  two  competing  schemes  would  have  obvious
disadvantages  in  practice,  primarily  for  users  (the
judiciary, 
already
reasonably  familiar  on  the  whole  with  the  general
scheme  of  the  Brussels  Convention  and  would  face
acute  problems  of  interpretation  in  relation  to  hybrid
judgments.

into  question 

etc.),  who 

advocates, 

are 

19.(cid:217)The  proposed  approach  proceeds  from  the  generally
accepted  fact  that  the  involvement  of  the  authorities
of  the  State  of  enforcement  could  be  simplified  and
that  the  endorsement  for  enforcement  or  the  regis(cid:220)
tration  of  a  judgment  could  be  reduced  to  little  more
than  a  formality.  The  frequency  of  appeals  from

for 

and 

responsible 

recognition 

the  authorities 

the  Member  States, 

it  would  be  most  helpful 

the  Brussels
enforcement  decisions  given  under 
Convention’s 
enforcement
procedures  is  negligible.  The  question  is  therefore
whether,  given  the  endemic  overload  of  the  courts  in
the  current  registration
all 
procedure,  even  at  the  early  stages,  should  retain  its
"judicial’  character.  There  is  no  wish  to  interfere
with  the  responsibilities  of  the  Member  States  for
the
designating 
formality,  but 
if  the
Member  states  designated  in  pursuance  of  the  grant
of  enforcement  other  authorities  than  the  courts
themselves  (public  officials,  registrars,  etc.),  although
any  appeals  against  the  granting  of  enforcement
should  still  be  of  a  judicial  nature.  The  immediate
advantage  of  this  would  be  that  it  would  relieve  the
already  overloaded  courts  of  the  burden  and  bear
clear  witness 
the
enforcement  order  (or  whatever  other  formality  is
chosen),  in  the  initial  stages  of  the  procedure.  On
the  other  hand  it  may  well  be  worth  designating  a
court 
in  those  Member  States  where  the  actual
enforcement  of  judgments  requires  the  prior  author(cid:220)
ization  of  a  court.  This  would  not  express  any  form
of  distrust  vis(cid:220){(cid:220)vis  foreign  courts  but  merely  the
wish  to  pool  the  power  to  declare  foreign  judgments
enforceable  and  order  their  enforcement  in  a  single
pair  of  hands.

the  changed  nature  of 

to 

that 

from 

the  principle 

Regarding  enforcement  proper,  the  Commission’s
proposals  proceed 
the
formality  should  be  virtually  automatic  and  involve
no  more  than  a  formal  check  on  the  judgment,  with
no  review  of  the  grounds  for  opposing  enforcement.
It  would  be  facilitated  if  the  judgment  to  be  enforced
were  accompanied  by  a  uniform  multilingual
certificate  issued  by  the  authorities  of  the  State  of
origin  unequivocally  establishing 
the  conditions
required  for  registration  for  enforcement  (Annex  to
the  Convention).  The  onus  would  be  on  the  person
against  whom  the  judgment  has  been  registered  for
enforcement  to  contest  it  and  furnish  evidence  that
one  of  the  Convention’s  remaining  grounds  for
opposing  enforcement  was  available.

20.(cid:217)The  changes  to  the  procedure  would  have  to  be
accompanied  by  revision  of  the  grounds  on  which
recognition  of  a  foreign  judgment  may  currently  be
opposed  (Article  37a),  and  in  particular  the  public
policy  ground,  which  does  not  sit  well  with  the
European 
the  civil  and
commercial  matters  concerned  here.  There  is  also
the  question  of  the  defendant  being  duly  served  and
given  sufficient  time  to  prepare  his  defence,  where
the  current  wording  gives  the  "bad  payer’  a  valuable
means  of  escaping  enforcement.  Finally, 
the
current  state  of  the  legislation  in  the  Member  States,

integration  process  or 

in 

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there  is  no  obvious  need  to  preserve  the  right  to
oppose  enforcement  where 
the  Member  State
violates  the  rules  of  private  international  law  relating
to  personal 
capacity,  matrimonial
and 
property  schemes  and  succession.

status 

To  avoid  purely  dilatory  appeals,  the  Commission
considers  that  the  judgment  authorizing  enforcement
should  be  declared
in  another  Member  State 
the  original
provisionally 
judgment  is  enforceable.  But  safety  nets  are  needed
to  ensure  that  there  are  no  irreparable  consequences
of  provisional  enforcement  (Article  36).

enforceable, 

just  as 

21.(cid:217)The  Commission  proposes  substantial  changes  to  the
mechanism  currently  governed  by  the  Convention
along  these  lines,  but  does  not  exclude  the  possibility
that  this  might  be  but  a  step  along  the  road  towards
the  pure  and  simple  abolition  of  the  registration
(exequatur)  procedure  in  due  course.

I.3. PROVISIONAL  A ND  P ROTEC T I VE

M E A S U R E S

in 

22.(cid:217)Provisional  and  protective  measures  are  of  vital
the  context  of  recognition  and
importance 
enforcement  of  foreign 
judgments.  The  negative
consequences  of  inherent  procedural  delays  can  be
alleviated  or  offset  if  the  State  applied  to  takes  a
favourable  attitude  to  such  measures.  But,  while
throughout  the  Union  there  has  recently  been  a
considerable  expansion  in  such  measures,  reflecting
the  need  for  quick  action  in  the  business  world  and
thus  for  palliatives  for  the  excessive  slowness  of  the
justice  system,  this  has  occurred  on  an  autonomous
and  divergent  basis.  The  Brussels  Convention
contains  only  two  provisions  relating  to  provisional
measures,  Articles  24  and  39,  and  they  merely  refer
to  the  domestic  laws  of  the  Member  States  for  their
application.

protective  measures  and  that  the  legal  situations  vary
widely.  The  only  convergence  that  can  be  ascer(cid:220)
tained  is  between  the  function  of  such  measures,
which  is  to  secure  the  subsequent  enforcement  of
judgments  on  the  substance  of  a  case  (or  their
anticipated  enforcement),  organize  factual  situations
or  the  parties’  rights  pro  tem  and  safeguard  all
interests  affected  pending  settlement  of  the  dispute.

But  the  gap  between  Member  States  widens  when  it
comes  to  measures  anticipating  the  final  judgment
on  the  substance,  with  the  risk  that  proceedings  on
the  substance  will  become  futile  and  that  it  promotes
a  bending  of  the  usually  applicable  rules  of  juris(cid:220)
diction  (e.g:  the  r~f~re(cid:220)provision  in  french  law  and
law).  The
the  Befriedigungsverf(cid:190)gung 
recourse 
such
for 
to 
anticipatory  measures 
is  unevenly  distributed,  as
certain  Member  States  refuse  to  allow  the  courts  in
interlocutory  proceedings  any  power  to  anticipate
the  final  outcome.

in  German 
interlocutory  proceedings 

24.(cid:217)There  are  quite  considerable  differences  in  the  terms
on  which  such  measures,  which  are  normally  directly
enforceable,  may  be  ordered.  Although  the  legis(cid:220)
lation  of  the  Member  States  generally  makes  this
conditional  on  the  probability  of  the  alleged  claim
(fumus  boni  juris)  and  of  the  risk  of  non(cid:220)recovery
(periculum  in  mora),  the  urgency  factor  is  more  and
more  often 
loosely.  There  are  also
substantial  differences  as  to  the  kind  of  assets  that
may  be  affected,  the  type  of  measures  that  may  be
taken  and  the  relationship  between  the  proceedings
in  an  interlocutory  action  and  the  proceedings  on
the  substance.

interpreted 

Formal  aspects  are  also  divergent.  Many  Member
States  subject  protective  measures  to  prior  author(cid:220)
ization  by  the  court,  in  some  cases  a  special  court
and  in  some  not,  whereas  in  others  this  is  sometimes
not  necessary.  Moreover  the  unilateral  nature  of  the
action  (heard  ex  parte)  is  the  rule  in  a  good  number
of  Member  States,  whereas  in  others  the  adversary
procedure 
in  the
absence  of  specific  considerations  of  urgency,  so  that
nobody  can  be  taken  by  surprise.

is  mandatory  from  the  outset, 

23.(cid:217)A  comparative  survey  of  national  legislation  reveals
that  there  are  virtually  no  definitions  of  provisional/

25.(cid:217)The  Brussels  Convention  does  nothing  to  solve  this
the
fragmentation.  Article  24  merely  establishes 
principle  of  jurisdiction  by  way  of  derogation  from
the  general  rules  on  jurisdiction  as  to  substance,
without  specifying  those  for  whose  benefit  this  juris(cid:220)

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to 

interpret 

diction 
is  conferred  and  above  without  defining
provisional/protective  measures.  To  fill  in  the  gap,
the  Court  of  Justice  has  had 
the
provisions  in  question.  In  Reichert  II (˛ˇ),  it  laid  the
foundations  for  a  uniform  autonomous  definition
and  specified  how  freedom  of  movement  of  such
judgments  was  to  be  secured.  As  for  article  39,  the
Court  of  Justice  usefully  held 
in  Capelloni  and
Aquilini  v.  Pelkmans (˛—)  that  the  party  applying  for
and  obtaining  authorization  for  enforcement  may,
under  the  Article  and  during  the  period  allowed,
have  protective  measures  executed  without  needing
specific  authorization  to  do  so.

26.(cid:217)The  Commission  considers  it  necessary  to  continue
along  the  path  mapped  out  by  the  Court  of  Justice
and  to  launch  debate  in  the  Union  on  ways  and
means  of  securing  equivalent  protection  for  litigants
everywhere.  Given  the  variety  of  legal  systems  and  of
measures  available  in  them,  the  debate  will  have  to
focus  on 
served  by  provisional/
protective  measures,  the  minimum  conditions  to  be
satisfied,  the  adversary  procedure  requirement,  the
enforceability  of  the  measures  and  possible  redress
procedures.

functions 

the 

be  without  prejudice  to  the  natural  jurisdiction  of
the  court  hearing  the  substance  of  the  case  to  order
provisional  measures  also(cid:216)(˛(cid:210)).

Where  a  non(cid:220)enforceable  judgment  has  been  given
on  the  substance  or  an  enforceable  judgment  has
been  given  but  not  yet  declared  enforceable  in  the
Member  State  applied  to,  such  judgment  must  permit
protective  measures  to  be  taken  in  the  State  in  which
they  may  be  executed(cid:216)(˛(cid:211)).  The  judgment  on  the
substance  is  automatically  recognizable  under  Article
26  of  the  Brussels  Convention,  on  the  basis  of  an
international  presumption  of  regularity,  and  must
have  the  status  of  "European  provisional  enforcement
order’  (cf.  Article  27).

of 

the 

prejudice 

judgment  on 

then,  without 

the  enforceable 

to 
judgment 

Lastly,  where 
the
substance  is  declared  enforceable  in  the  State  applied
provisional
to, 
enforcement 
authorizing
enforcement,  this  judgment  automatically  entails  full
authorization 
the  provisional/protective
measures  allowed  by  the  law  of  that  State.  This  does
not  presuppose 
judgment  authorizing
the 
execution  has  been  first  served  on  the  defendant,
and  the  measures  remain  in  force  until  expiry  of  the
period  allowed  for  appeal  or  until  judgment  has  been
given  on  the  appeal  (cf.  Article  36).

take 

that 

to 

27.(cid:217)The  Commission  proposes 

"provisional  and
protective  measures’  be  given  a  uniform  definition.  It
is  suggested  that  the  guiding  principles  posited  by
the  Court  of  Justice  in  Reichert  II  be  taken  as  inspi(cid:220)
ration(cid:216)(˛(cid:209)).

that 

29.(cid:217)All  the  suggested  amendments  are  incorporated  in
the  draft  convention  at  Annex  1.  For  convenience,
this  proposed  convention  follows,  as  far  as  possible,
the  Brussels
the 
in
Convention  and  only 
which  a  change  with 
the  Brussels
Convention  is  envisaged.

includes  the  provisions 
to 

structure  and  numbering  of 

regard 

to 

rule 

conferring 

in  whose 

jurisdiction 

28.(cid:217)The  Commission  further  proposes  that  there  be  a
order
clear 
provisional/protective  measures  on  the  courts  of  the
Member  State 
they  may
effectively  be  executed,  even  if  the  courts  of  another
Member  State  have  jurisdiction  to  determine  the
substance  of  the  case  (Article  18a).  The  basis  for  this
new  rule  of  jurisdiction  is  the  urgency  of  provisional
measures,  which  is  not  compatible  with  a  registration
(exequatur)  procedure.  This  rule  would,  of  course,

territory 

II. AVENUES 

TO 
IMPROVEMENT 
JUSTICE  IN  THE  EUROPEAN  UNION

AN
IN  THE  ADMINISTRATION  OF

EXPLORED 

FOR 

BE 

30.(cid:217)Because  of  the  heterogeneity  of  national  procedural
systems,  litigants  in  the  European  Union  are  not  on

(˛ˇ)(cid:217)Case  C(cid:220)261/90  [1992(cid:129)  ECR  I(cid:220)2149.
(˛—)(cid:217)Case  119/84  [1985(cid:129)  ECR  3147.
(˛(cid:209))(cid:217)It  will  be  for  the  Court  to  determine  whether  measures  that
anticipate  the  final  outcome  are  within  the  definition.
Question  for  preliminary  ruling  No  C(cid:220)46/7  of  1996,  Case
C(cid:220)391/95  Van  Uden  Maritime  BV  v.  Firma  Deco(cid:220)Line,  Peter
Determann  KG.

(˛(cid:210))(cid:217)But  there  are  limits  to  the  recognition  of  such  measures:  see
Case  125/79  Denilauler  v.  Couchet  [1980(cid:129)  ECR  1553.  The
measure  will  not  be  recognized  if  taken  ex  parte.

(˛(cid:211))(cid:217)E.g.  Article  68  of  the  French  Civil  Procedure  (Enforcement)
Act  (9.7.1991)  and  Article  1414  of  the  Belgian  Judiciary
Code.

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31.1.98

an  equal  footing.  They  do  not  have  access  to
instruments  of  equal  performance 
levels  whereas
equality  of  citizens  and  business  partners  in  an  inte(cid:220)
grated  area  presupposes  equal  access  to  the  weapons
of  the  law.  Attention  has  focused  on  this  divergence
between  law  and  reality  that  flows  from  the  preser(cid:220)
vation  of  judicial  frontiers  in  the  Union  for  several
years, 
institutions  have
expressed  awareness  of  it(cid:216)(˛(cid:212)).  The  Court  of  Justice
itself  has  repeatedly  had  occasion  to  declare  that  the
availability  of  redress  procedures  where  rights  are
violated  by  an  infringement  of  Community  law  is  a
the  Member  States,
fundamental  obligation  of 
the  EC
inter  alia 
flowing 
Treaty(cid:216)(˛(cid:213)).

from  Article  5  of 

the  Community 

and 

several 

31.(cid:217)The  institutions’  awareness  has  been  echoed  in  a
legislation.  The
number  of  pieces  of  Community 
council  has  enacted 
instruments  under
Articles  66,  100  and  100a  of  the  EC  Treaty,  some  of
them  containing  special  rules,  rules  on  conflict  of
jurisdiction  or,  more  rarely,  rules  on  conflict  of  laws,
substantial  rules  of
and 
procedure  has  not  been  excluded 
specific
in 
cases(cid:216)(˛(cid:214)).  This  technique  is  limited,  however,  by  the
very  purpose  it  is  supposed  to  serve.  The  work
launched  thus  far  on  the  harmonization  of  national
conflict  rules  or  substantial  procedural  rules  has
suffered  from  being  developed  in  a  sectoral  context.

the  harmonization  of 

32.(cid:217)Without  prejudice  to  possible  new  proposals 

they 

are  needed, 

areas  where 

in
the
specific 
Commission  wishes  to  pay  special  attention  to  estab(cid:220)
lishing  as  horizontal  an  approach  as  possible  for  the
future  which  will  be  adopted  following  the  entry  into
force  of  the  Treaty  of  Amsterdam  taking 
into
account  the  new  provisions  relating  to  civil  judicial
cooperation  (Article  73M).  The  complexity  of  the
problems  that  arise,  and  the  deep(cid:220)rooted  situation  of
procedural  law  in  national  traditions,  suggest  that
measures  should  be  taken  on  a  progressive,  prudent
and  proportionate  basis.  Particular  attention  must  be
given  to  maintaining  a  balance  of  the  respective
parties’  interests,  especially  with  regard  to  the  rights
of  the  defence.  The  Commission  accordingly  wishes
attention  to  focus  on  those  points  of  divergence
whose  maintenance  it  considers  to  be  prejudicial  to

(˛(cid:212))(cid:217)Notably 

in  the  Green  Paper  on  Access  to  Justice  for
settlement  of  consumer  disputes
Consumers  and 
(COM(93)  576)  and  in  the  Strategic  Programme  for  the
Internal  Market  (COM(93)  256).

the 

justice 

the  harmonious  administration  of 
the
Union.  These  have  already  been  looked  into  in  the
course  of  Council  work  on 
"European
enforcement  order’,  which  is  evidence  of  the  need
for  and  an  awareness  of  a  possible  common  Union
approach.

the 

in 

II.1. PR OC E D UR E   FOR   OB TAI NIN G   A  WRIT   OF
E XE C UTI ON  IN   TH E   S TAT E  OF   OR I GIN

33.(cid:217)In  view  of  the  growing  needs  of  both  ordinary
citizens  and  economic  operators,  the  general  intro(cid:220)
duction  and  approximation  of  rapid  procedures  for
the  payment  of  sums  of  money  merits  consideration
as  a  matter  of  priority.

34.(cid:217)In  1994  a  study(cid:216)(ˇ˝)  was  made  at  the  Commission’s
request  as  part  of  the  Community  strategy  for
promoting  enterprise  and 
improving  the  business
environment.  It  found  that  operators  feel  the  legal
framework  in  the  Member  States  is  uneven  in  its
deterrent  effect  on  bad  debtors  and  may  even  work
to  their  financial  benefit  in  many  Member  States  by
affording  them  a  certain  degree  of  impunity.  It  also
revealed  that  some  SMEs  are  reluctant  to  engage  in
international  trade  because  they  know  that  it  will  be
much  more  difficult  to  recover  debts  abroad  than  at
home  in  the  event  of  non(cid:220)payment.

legal  framework 

35.(cid:217)The  Commission  already  highlighted  the  lack  of  a
in  connection  with  the
suitable 
proper  functioning  of  the  single  market  in  its  recom(cid:220)
mendation  of  12  May  1995  on  payment  periods  in
commercial  transactions(cid:216)(ˇ˛).  Believing  that  creditors
affected  by  late  payments  should  have  access  to
rapid,  efficient  and  inexpensive  redress  procedures,
the  Commission  requested  the  Member  States  to
improve  the  effectiveness  of  legal  procedures  for  the
settlement  of  claims  for  payment  and  to  simplify
methods  for  recovering  uncontested  cross(cid:220)border
debts.  But 
its  report  of  9  July  1997  on  an
evaluation  of  the  effects  of  the  1995  Recommen(cid:220)
dation(cid:216)(ˇˇ), 
the
situation  had  developed  very  little  in  the  Member
States  and  that  small  businesses  remained  reluctant
to  engage  in  export  trade.

to  conclude 

felt  bound 

that 

in 

it 

(˛(cid:213))(cid:217)Cases  .(cid:216).(cid:216).
(˛(cid:214))(cid:217)Examples  are  Directive  84/450/EEC  on  misleading  adver(cid:220)
tizing,  Directive  93/13/EEC  on  unfair 
in  con(cid:220)
sumer  contracts,  Directives  88/357/EEC,  90/619/EEC,
insurance,  Directive
92/49/EEC  and  92/96/EEC  on 
96/71/EC  concerning 
the
framework  of  the  provision  of  services.

the  posting  of  workers 

terms 

in 

(ˇ˝)(cid:217)"European  Late  Payment  Survey’  -  Intrum  Justitia.
(ˇ˛)(cid:217)OJ  L  127,  10.6.1995; 

cf.  Communication  on 

Commission  Recommendation  on  payment  periods 
commercial  transactions:  OJ  C  144,  10.6.1995,  p.  3.

the
in

(ˇˇ)(cid:217)OJ  C  216,  17.7.1997,  p.  10.

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36.(cid:217)The  Commission’s  approach,  which  won  broad
support  in  Parliament(cid:216)(ˇ—),  rests  on  the  fact  that  a
comparison  of  national  systems  shows  considerable
disparities.  The 
last  twenty  years  have  seen  the
emergence,  in  varying  degrees,  of  a  range  of  specific
or  summary  procedures  in  the  Member  States.  Their
proliferation  reflects  not  only  the  Member  States’
desire  to  tackle  the  chronic  backlog  of  court  cases
and  prevent  the  courts  from  becoming  clogged  up
but  also  their  differing  priorities  on  effective  judicial
protection  for  particular  categories  of  rights  of
litigants.

37.(cid:217)Besides  procedures 

for 

small  claims  or  more
specifically  for  consumer  debts,  several  Member
States  have  already  introduced  -  or  are  in  the
process  of  introducing  -  procedures  making  the
recovery  of  sums  of  money  simpler,  faster  and  less
expensive.  However,  this  kind  of  procedure(cid:216)(ˇ(cid:209))  does
not  exist  in  all  the  Member  States(cid:216)(ˇ(cid:210)).  Where  they
do  exist, 
the  substantive  and  formal  conditions
governing  their  application  differ  quite  markedly.
The  differences  concern  such  fundamental  aspects  as
the  maximum  amount  of  debt  that  can  be  dealt  with
under  the  procedure,  whether  the  proceedings  are
adversarial  or  ex  parte,  the  rules  of  evidence,  costs
and  charges,  and  whether  the  services  of  a  lawyer
are  required.  In  addition,  the  degree  of  formality  of
the  procedure  varies  from  one  Member  State  to
another,  to  the  point  where  it  may  be  completely
removed  from  the  judicial  sphere(cid:216)(ˇ(cid:211)).

to 

to  counter 

the  Union  should  seek 

this  case  the  disparity  between  national  legislative
provisions  may  significantly  affect  the  choice  of
jurisdiction  ("forum  shopping’).  In  the  Commission’s
view, 
these
differences  which  could  influence  debtors’  behaviour.
It  has  been  demonstrated(cid:216)(ˇ(cid:213)),  in  the  context  of  the
follow(cid:220)up 
the  Recommendation  of  payment
periods  as  between  firms,  that  payments  are  delayed
far  less  in  those  Member  States  where  judgments  can
be  obtained  and  enforced  more  quickly,  more
cheaply  and  more  efficiently.  There,  the  proportion
of  all  payment  delays 
is
substantially  below  the  average,  which  is  35(cid:216)%.  To
benefit  fully  from  the  advantages  of  the  dismantling
of  national  frontiers,  both  economic  operators  and
ordinary  citizens  should  have  access  to  a  rapid,
efficient  and  inexpensive  procedure  meeting  certain
substantive  and  formal  conditions  that  offers  them
equivalent  protection.  And  that  protection  should
not  be  confined  to  firms  but  available  to  all  citizens
(consumers,  alimony  creditors  etc.) 
faced  with
unpaid  claims.

intentional 

that  are 

39.(cid:217)The  general 

provided 

introduction  of  a  payment  order
procedure  in  the  Member  States(cid:216)(ˇ(cid:214))  would,  as  the
competent  authorities  became  more  familiar  with  it,
also  help  facilitate  the  recognition  and  enforcement
procedures(cid:216)(—˝) 
the  Brussels
Convention.  It  should  also  be  noted  that  a  number
of  academic  papers  on  the  "European  enforcement
order’  have  started  from  the  premise  that  a  uniform
procedure  for  the  payment  of  sums  of  money  could
lead  to  the  complete  disappearance  of  the  recog(cid:220)
(registration/
nition  and  enforcement  procedure 
exequatur)  provided  for  in  the  Brussels  Convention.

for 

in 

38.(cid:217)This  widening  disparity  does  tend  to  weight  the
scales  in  favour  of  litigants  who  have  access  to  a  very
efficient  recovery  procedure  and  against  those  at  the
other  extreme  who  have  no  such  option  and  have  to
rely  on 
"normal’  procedures  -  which  are
generally  synonymous  with  much  higher  costs  and
lengthy  delays.  Furthermore,  in  some  Member  States
the  use  of  a  simple  payment  order  procedure  is  flatly
prohibited  in  the  case  of  cross(cid:220)border  disputes(cid:216)(ˇ(cid:212)).  In

the 

(ˇ—)(cid:217)OJ  C  211,  22.7.1996.
(ˇ(cid:209))(cid:217)Known  as  proc~dure  d’injonction  de  payer 

in  France,
Mahnverfahren  in  Germany,  decreto  ingiuntivo  in  Italy,  and
betalningsf‰rel…ggande  in  Sweden,  Summiere  rechtspleging  om
betaling  te  bekomen  in  the  Netherlands.

(ˇ(cid:210))(cid:217)Spain  and  Portugal  have  no  such  procedure.  The  United
Kingdom  and  Ireland  have  a  summary  procedure  that  is
very  similar.

(ˇ(cid:211))(cid:217)For  example,  the  kronofogdemydighet  in  Sweden.
(ˇ(cid:212))(cid:217)There  is  some  uncertainty  as  to  whether  this  restriction  is
compatible  with  the  Court  of  Justice’s  reading  of  the
Brussels  Convention,  and  in  particular  of  Article  6,  which
prohibits  discrimination  (Case  C(cid:220)398/92  Mund(cid:216)&(cid:216)Festner  v
Hatrex  Internationaal  Transport  [1994(cid:129)  ECR  I(cid:220)467).

the  debt.  Under 

40.(cid:217)The  fundamental  principle  is  that  litigation  for  the
payment  of  a  sum  of  money  should  be  avoided
where  there  is  no  real  disputed  claim  and  where  the
this
debtor  does  not  contest 
principle  the  responsibility  for  action  is  reversed  and
the  initiative  for  starting  proceedings  rests  not  with
the  applicant  but  with  the  defendant.  Having  been
served  with  an  order  for  payment  issued  at  the
creditor’s  request,  the  debtor  must  take  the  initiative
the
of  going 
procedure 
if  the
legal  effects 
debtor  knowingly  fails  to  act.  Special  care  must
the  debtor’s
therefore  be 

to  court.  The  major 
is  the 

it  produces 

feature  of 

to  ensure 

taken 

that 

(ˇ(cid:213))(cid:217)European  Payment  Habits  Survey,  April  1997,  Intrum

Justitia.

(ˇ(cid:214))(cid:217)Cf.  Communication  mentioned  above,  p.  9.
(—˝)(cid:217)In  its  judgment  in  Klomps  v (cid:216)Michel  (Case  166/80  [1981(cid:129)
ECR  1593)  the  Court  of  Justice  agreed  that  an  order  for
payment  constituted  a  "judgment’  within  the  meaning  of  the
Brussels  Convention.

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the  enforcement 

interests  are  properly  protected.  Service  or  notifi(cid:220)
cation  of 
the
creditor’s 
is  a  matter  of  considerable
importance  here,  since  this  is  when  the  time  limit
starts  to  run  for  the  debtor  to  lodge  an  objection  and
start  adversary  proceedings.

instrument  at 

request 

41.(cid:217)Having  set  out 

these  general  principles,  which
underlie  all  the  existing  systems,  a  number  of  issues
still  have  to  be  settled.  First  the  ways  of  maintaining
a  balance  between  the  parties  (whether  consumers,  in
which  case  the  existing  position  of  inferiority  in  the
market(cid:216)(—˛) 
should  not  be  reinforced,  or  other
categories  of  persons)  must  be  examined.  Then  it  is
necessary  to  define  what  roles  the  judicial  authority,
the  process  server  and  the  lawyer  should  play.  The
material  scope,  the  potential  maximum  amount  of
the  debt,  application  procedures,  rules  of  evidence,
methods  of  serving  orders,  what  courses  are  open  for
appeals  and  the  time  limits  for  lodging  them  -  these
are  all  factors  that  have  to  be  borne  in  mind  when
considering 
shape  of  a  European
procedure  for  payment  orders.  This  process  of
reflection  will  be  guided  by  the  desire  not  to
undermine  existing  systems  which  have  proved  to  be
effective.

the  possible 

II.2. ENFORCEMENT  OF  JUDG MEN TS

42.(cid:217)A  prompt  and  efficient  system  for  enforcing  court
judgments  is  vital  for  justice  to  be  accessible.  A  free
circulation  of  court  judgments  would  be  illusory  if
enforcement  instruments  were  not  equally  effective
in  all  the  Member  States.

and 

provisional  measures  means 

43.(cid:217)It  is  not  clear  that  at  present,  national  legal  systems
are  up  to  the  task  of  fullfulling  this  goal.  As  with
of
interim 
enforcement  are  organized  in  very  different  ways
and  subject  to  widely  differing  conditions  from  one
Member  State  to  another.  Although  all  the  Member
States  have  different  enforcement  rules  depending  on
the  nature  of  the  claim  against  the  debtor  and
enforced  execution  in  almost  all  of  them  is  condi(cid:220)
tional  on  service  of  the  instrument  on  which  it  is
based  or  an  serving  formal  notice  to  the  debtor,
there  are  still  considerable  differences  as  regards

the  nature  of  the  instruments  by  which  enforcement
can  be  obtained(cid:216)(—ˇ),  since  res  judicata  is  not  the  only
decisive  factor.  Exceptions  to  the  generally  accepted
principle  that  all  the  debtor’s  effects  are  liable  to
seizure  are  numerous  and  also  vary  widely  from  one
country  to  another.  The  same  is  true  as  regards
appeals, 
in  enforcement
proceedings,  the  cost  of  enforcement  and  publication
of  enforcement  measures.

the  role  of 

the  courts 

(exequatur) 
proper 

procedure  more 
subject 
remains 

44.(cid:217)The  Brussels  Convention  seeks  solely  to  facilitate  the
free  movement  of  judgments  by  making  the  regis(cid:220)
flexible.
tration 
Enforcement 
the
to 
procedural  rules  of  the  State  where  it  is  effected.
The  enforceability  of  an  instrument,  then,  is  not  to
be  confused  with  its  actual  enforcement,  and  there  is
still  a  long  way  to  go  before  the  conditions  for
enforcement  of  judgments  and  the  risks  attaching  to
the  difficulties  which  they  pose  are  the  same  in  all
the  Member  States(cid:216)(——).

45.(cid:217)The  diversity  and  complexity  of  the  rules  highlighted
by  the  Court  has  to  do  with  the  specific  nature  of
the  law  on  enforcement,  which  is  deeply  rooted  in
the  national  culture  and  also  affects  individual  rights,
contract 
law  of
succession,  tax  law  and  the  law  on  securities.  The
multidisciplinary  nature  of  the  law  on  enforcement,
plus 
territoriality  as
regards  seizure,  makes  it  necessary  to  take  a  cautious
and  very  gradual  approach  to  the  subject.

traditional  principle  of 

law,  matrimonial 

law  and 

the 

the 

seizures,  which  exist 

46.(cid:217)It  is  proposed  to  confine  reflection  initially  to  the
in
problem  of  banking 
practically  all  the  Member  States  and  are  a  powerful
weapon  against  bad  debtors.  Their  effectiveness  is
somewhat  lessened  by  the  territoriality  principle  and
the  substantial  differences  between  legislation  in  the
Member  States.  But  above  all,  the  extreme  volatility
of  the  contents  of  bank  accounts  is  a  major  obstacle
to  the  seizure  and  attachment  of  funds.  Thought
therefore  needs  to  be  given  to  the  various  ways  of
neutralizing  the  obstacles  and  volatility  and  to  define
a  common  approach  for  the  European  Union.

47.(cid:217)Several  questions  merit  special  attention.  Deciding
what  is  the  place  of  seizure  is  one  of  these  key
questions.  The  answer  will  have  to  take  account

(—ˇ)(cid:217)Some  Member  States  make  a  distinction  between  the  writ

and  the  endorsement  for  enforcement.

(—˛)(cid:217)Green  Paper  on  acccess  to  justice  of  consumers.

(——) Mund(cid:216)&(cid:216)Festner,  supra,  note  24.

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traditional  principle  whereby 

of  the  massive  growth  in  electronic  funds  transfer.
The 
the  place  of
seizure  is  where  the  funds  held  by  the  banker  are
intercepted  or  where  payment  is  made  by  the  bank
(generally  its  head  office)  will  have  to  be  reviewed.

The  scope  of  seizure  as  regards  funds  held  by  a
foreign  branch  or  subsidiary  of  the  bank  seized,  also
poses  a  particular  problem  in  connection  with  the
principle  of 
the
branch  is  very  often  treated  as  a  separate  estab(cid:220)
lishment  from  that  where  the  seizure  is  effected,  at
any  rate  as  far  as  release  from  seizure  of  the  latter  is
concerned.

territorality.  The  subsidiary  or 

assets  and,  with  advances  in  information  technology
and  the  Internet(cid:216)(—(cid:209)),  much  greater  volatility.

50.(cid:217)National  legislators  have  not  ignored  these  devel(cid:220)
opments  and  have  gradually  introduced  measures  to
tackle  this  lack  of  transparency,  at  least  to  some
extent.  Nevertheless 
currently
available  in  the  Member  States  to  uncover  and  locate
the  various  elements  of  a  debtor’s  assets  are
extremely  varied  and  do  not  afford  all  creditors
equal  protection.

the  mechanisms 

The  date  when  a  third  party  subject  to  seizure  is
required  to  produce  information  about  the  debtor’s
account  and  what  becomes  of  debts  due  that  are
immune  from  seizure  and  paid  into  a  bank  account
are  questions  that  need  to  be  examined  carefully.
The  same  applies  to  the  priority  treatment  afforded
to  the  execution  creditor  in  some  Member  States,
which  also  carries  a  risk  of  discrimination  against
more  "distant’  creditors.

51.(cid:217)One  method  is  to  oblige  the  debtor  to  disclose  the
details  of  his  assets  on  application  by  the  creditor  or
by  order  of  the  court  responsible  for  enforcement.  In
one  group  of  Member  States  no  such  legal  rule
exists.  Here,  it  is  up  to  the  creditor  to  make  the
necessary  effort  to  identify  and  locate  the  assets,
more  often  than  not  to  the  debtor’s  advantage  since
he  is  forewarned  or  more  than  adequately  advised.
Indeed, 
there  are  no
it  punishable  for  a  debtor  to
provisions  making 
contrive  his  own  insolvency.

in  some  Member  States 

II.3. TRANS PARENCY  REGARDING  ASS ETS

in  order 

is  essential 

the  rights  of 

48.(cid:217)Making  it  easier  to  ensure  prompt  enforcement  of
foreign  judgments  through  a  simpler  recognition  and
enforcement  procedure 
to
safeguard 
the  creditor  effectively.
Progress  on  this  front  can,  however,  be  rendered
worthless  if  the  debtor  turns  out  to  be  insolvent  or
conceals  assets.  The  creditor  must  therefore  be  able
to  place  an  accurate  valuation  on  the  debtor’s  actual
realizable  fortune  in  terms  of  assets  and  liabilities
is  worth  pursuing
before  deciding  whether 
enforcement.

it 

49.(cid:217)Yet  transparency  regarding  a  debtor’s  assets,  which
constitute  the  creditor’s  general  security,  has  largely
disappeared.  Once  they  would  have  consisted  mainly
identifiable  -  and  hence  seizable  -
of  easily 
immovable  property,  but  now  the  make(cid:220)up  has
changed  substantially.  By  and  large  such  assets  no
longer  take  material  form  but  tend  to  comprise
mostly  bank  accounts,  miscellaneous  payments,
company  shares,  securities  or  founders’  shares  in
companies  scattered  across  Europe,  usually  under
arrangements  that  ensure  complete  anonymity  for
the  holder.  There  is  far  less  clarity  about  a  debtor’s

In  a  second  group  of  Member  States  there  is  a
definite  obligation  to  declare  one’s  assets,  in  writing
or  orally,  either  to  a  court,  possibly  under  oath,  or
to  a  clerk  or  court  officer,  or  to  the  authorities
specially  charged  with  enforcing  judgments.  Debtors
who  refuse  to  give  a  declaration  make  themselves
liable  to  penalties  or  even  imprisonment.  As  a  rule,
the  obligation  to  declare  assets  covers  all  types  of
movable  and  immovable  property.

the 

The  effectiveness  of  this  kind  of  declaration  depends
largely  on  the  use  made  of  it  and  the  publicity  it  is
given.  In  some  Member  States 
information
obtained  in  this  way  is  disclosed  only  to  the  court
and  the  parties  concerned.  On  the  other  hand,  the
deterrent  effect  of  the  obligation  to  declare  is  much
greater  where  the  information  can  be  made  known
to  anyone  interested  via  the  court  records.  Thus  the
obligation  to  declare  assets  can  be  a  very  effective
means  of  bringing  pressure  to  bear  on  bad  debtors.

(—(cid:209))(cid:217)See  the  Commission’s  Green  Paper  on  electronic  commerce

(COM(97)  157).

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31.1.98

52.(cid:217)Making 

information  available  through  the  public
records  can  constitute  a  useful  extra  source  of
information  or  even  an  alternative 
in
Member  States  where  there  is  no  declaration.  Once
again,  the  extent  of  the  information  available  in  this
way  varies  considerably  from  one  Member  State  to
another.

solution 

53.(cid:217)In 

the 

courts  or 

some  Member  States 

the
enforcement  authorities  also  have  the  power  to
require  third  parties,  in  particular  banks  and  other
financial  institutions,  to  disclose  information  about
debtor’s  bank  accounts.  In  others,  this  option 
is
completely  ruled  out,  banking  secrecy  being  the
reason  most  commonly  cited.

is  viewed.  Firstly 

54.(cid:217)Fairly  substantial  differences  exist  in  the  European
Union  over  the  way  in  which  the  concept  of  trans(cid:220)
the
parency  regarding  assets 
discretion  observed  by  some  Member  States  tends  to
encourage  bad  debtors  to  move  their  assets  there  in
order  to  escape  seizure.  In  addition  creditors  in  the
Union  are  not  all  on  an  equal  footing.  It  depends  on
the  country  where 
to  obtain
payment.  In  the  Commission’s  view  the  present
situation  is  unsatisfactory,  effective  enforcement  in
the  European  Union  calls  for  coordinated  action.
Taking  into  account  the  interest  of  such  a  system,
thought  should  be  given  to  the  possibility  of  bringing
in  a  general  obligation  across  the  Union  to  declare
assets  in  order  to  be  able  to  locate  them.

they  are  seeking 

the 

"European 

enforcement 

This  approach  was  broadly  welcomed  by  those  in  the
profession  following  consultation  by  the  Commission
in  the  run(cid:220)up  to  the  Helsinki  seminar  in  March  1997
on 
order’.  The
Commission  believes  that  it  is  essential  to  reconcile
the  effectiveness  of  such  a  procedure  with  the  rules
on  immunity  from  seizure  and  also  with  the  need  to
protect  debtors  and  third  parties  against  inappro(cid:220)
priate, 
investigation.
Particular  attention  will  be  given  to  data  protection.
The  Commission  will  proceed  with  protacted  consul(cid:220)
tation  in  order  to  obtain  specific  points  of  views
from  the  interested  parties.

inadequate 

excessive 

or 

II.4. E XC HA N GE   OF  I NF ORM ATI ON   B E TWE E N

E NF OR CE ME N T  AU THOR I TI E S

55.(cid:217)A  further  dimension  which  reflection  on  improving
the  effectiveness  of  judgments  will  have  to  cover  is
cooperation  between  the  authorities  responsible  for
enforcement  in  the  Member  States.  This  issue  is
identifying  the
inseparable  from  the  problem  of 
property  subject  to  enforcement  action  and 
is  a
natural  complement  to  it.  The  more  progress  made
towards  greater  transparency  regarding  assets,  the
greater  the  scope  for  future  cooperation.  At  present
the  fact  is  that,  although  judicial  cooperation  on  civil
matters 
the
European  Union  has  no  general  multilateral
instrument  aimed  at  speeding  up  the  settlement  of
disputes  and  the  enforcement  of  judgments  through
a  system  of  mutual  assistance.

the  Union’s  objectives, 

is  one  of 

56.(cid:217)This  was  also  one  of  the  topics  discussed  at  the
seminar  on  the  European  enforcement  order  held  in
Helsinki  in  March  1997  as  a  factor  that  could  help
to  make  court 
judgments  more  effective.  The
Member  States  were  also  consulted  on  the  possibility
of  introducing  a  system  for  exchanging  information
in  this  area  in  the  context  of  work  on  the  "European
enforcement  order’(see  I.2).  The  reception  given  to
the  proposal  was  a  sign  that  the  Member  States  are
growing  increasingly  aware  of  the  difficulties  caused
by  the  absence  of  a  formal  framework  for  co(cid:220)
operation  between  courts  with  regard  to  making
judgments  effective.

to  overcome 

57.(cid:217)The  Commission  takes  the  view  that  improving  legis(cid:220)
lative  mechanisms  for  recognition  and  enforcement
is  a  matter  of  priority,  but  that  the  positive  results
expected  from  the  work  done  in  this  area  could  be
further  enhanced  by  active  cooperation  between  the
national  authorities  involved  in  these  mechanisms.
Cooperation  here  would  help 
the
drawbacks  of  the  principle  of  territoriality  as  regards
means  of  enforcement,  a  principle  that 
is  firmly
anchored  in  the  Member  States’  legal  traditions.  On
the  other  hand,  the  difficulty,  or  even  impossibility
in  some  cases,  of  locating  assets  easily  and  inex(cid:220)
pensively  in  order  to  satisfy  a  creditor  tends  to
undermine  the  free  movement  and  effectiveness  of
judgments  and,  more  generally,  the  ability  of  the
Member  States’  judicial  systems  to  meet  the  concerns
of  litigants.  it  would  therefore  be  wise  to  begin
and
considering 

appropriate 

possible 

forms 

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C  33/17

arrangements  for  an  information  exchange  system
between  enforcement  authorities 
the  Member
States.

in 

rules.  Such  systems  are  especially  well  developed  in
the  fields  of  customs,  agriculture  and  taxation(cid:216)(—(cid:211)).

58.(cid:217)To  be  effective,  a  system  of  this  kind  should  not  be
confined  solely  to  exchanging  information  on  the
legislation  applicable  in  the  Member  State  applied  to.
The  main  goal  of  such  cooperation  should  be  to  help
the  creditor  obtain  the  information  available  in  the
Member  State  applied  to  on  the  debtor  himself  and
on  the  nature  of  his  property,  what  it  comprises  in
terms  of  assets  (including  debts  due  to  third  parties)
and  liabilities,  and  their  location.

60.(cid:217)In  the  forthcoming  reflections,  the  differences  of
culture  between 
the  Member  States  as  regards
responsibility  for  the  conduct  of  proceedings  and  the
enforcement  of  judgments,  the  disparities  or  simi(cid:220)
larities  in  terms  of  the  information  available  within
each  Member  State,  and  the  wide  differences  in  the
status  and  responsibilities  of  enforcement  officers
will  occupy  a  major  place  in  the  discussions  and  a
number  of  factors  will  have  to  be  taken  into  account.

59.(cid:217)A  comparison  of  existing 

instruments 

in  other
matters  will  make  the  definition  of  a  possible  system
easier.  There  are  a  series  of  instruments,  in  particular
at  the  level  of  the  European  Union,  the  purpose  of
which  is  to  allow  or  facilitate  reciprocal  information
and  cooperation  between  authorities.

of 

European 

the  recovery  of  maintenance 
interest(cid:216)(—(cid:210)).  Under  Article  3  of 

In  this  connection  the  machinery  provided  for  by  the
Convention  signed  on  6  November  1990 
in  the
Political  Cooperation
context 
is  of
concerning 
particular 
the
Convention,  the  designated  authorities  undertake  to
cooperate  with  a  view  to  making  judgments  effective
and  to  take  the  necessary  enforcement  measures,  but
also  to  seek  out  and  locate  the  debtor’s  assets  and  to
obtain 
the  State  authorities  all  necessary
information  regarding  the  debtor.

from 

Community  law  also  offers  several  models  for  a
and  mutual
system  of 
exchange 
information 
the  aim  of
assistance  between  authorities  with 
the  proper  application  of  Community
ensuring 

(—(cid:210))(cid:217)The  Convention  has  been  ratified  by  only  four  Member
States.  A  review  of  the  Convention  now  under  way  in  the
Council,  in  particular  as  to  the  reasons  for  its  non(cid:220)ratifi(cid:220)
cation,  should  provide  some  useful  information.

In  particular  there  needs  to  be  a  precise  definition  of
information.  It  would
who  may  have  access  to 
probably  be  preferable  to 
limit  access  to  official
authorities  rather  than  extending  it  to  private  indi(cid:220)
viduals.  In  this  case  it  will  have  to  be  decided  which
authorities  are  likely  to  be  receiving  information  and
which  ones  will  be  supplying  it.  A  system  of  this  kind
will  probably  have  to  be  open  to  all  administrative
and 
independent
professional  authorities  that  are  authorized  by  the
State  to  effect  the  enforced  execution  of  judgments.
A  related  question  will  be  the  degree  of  decentral(cid:220)
ization  which  any  such  system  should  lead  to.

judicial  authorities  and 

those 

The  material  scope  of  the  system  and  the  conditions
which  applications  for  assistance  would  have  to
satisfy  will  need  to  be  clearly  defined.  Besides  cases
where  assistance  may  validly  be  refused,  it  will  be
necessary  to  identify  what  limits  may  need  to  be
placed  on  the  system  in  order  to  take  accountof
legitimate  concerns  for  the  protection  of  privacy  and
personal  data  and  of  national  rules  on  the  confiden(cid:220)
tiality  of  information  and  banking  secrecy  in  the
State  applied  to.

(—(cid:211))(cid:217)See  in  particular  Council  Directive  76/308/EEC  on  mutual
assistance 
from
operations  forming  part  of  the  system  of  financing  the
EAGGF  and  of  the  agricultural  levies  and  customs  duties:
OJ  L  73,  19.3.1976,  p.  18.

the  recovery  of  claims  resulting 

for