Opinion of the European Economic and Social Committee on the "Proposal for a Council Regulation creating a European Enforcement Order for uncontested claims" (COM(2002) 159 final — 2002/0090 (CNS))
Date: 2002-12-11
Institutions: European Economic and Social Committee
Subjects: civil law, claim, commercial law, judicial cooperation, law of obligations

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II

(Preparatory Acts)

ECONOMIC AND SOCIAL COMMITTEE

395th PLENARY SESSION, 11 AND 12 DECEMBER 2002

Opinion of the European Economic and Social Committee on the ‘Proposal for a Council
Regulation creating a European Enforcement Order for uncontested claims’

(COM(2002) 159 final — 2002/0090 (CNS))

(2003/C 85/01)

On 15 April 2002, the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 27 November 2002. The rapporteur was
Mr Ravoet.

At its 395th plenary session (meeting of 11 December 2002), the European Economic and Social
Committee adopted the following opinion by 79 votes to one with two abstentions.

Gist of the conclusions

The Committee welcomes the proposed regulation, which
dispenses with the need for exequatur in the case of undisputed
claims. The proposed regulation follows on from existing
Community instruments, in particular the Brussels I Regulation
and the Service Regulation. The weak point in the proposal is
that the Member States are to be free to decide whether to
bring their procedural rules into line with the minimum
procedural requirements governing the issuing of the European
Enforcement Order. In order to create a genuine European
judicial area, there must be more far-reaching harmonisation
of Member States’ legislation.

1. Summary of the Commission document

The Tampere European Council of 15 and 16 October
1.1.
1999 endorsed the principle of mutual recognition of judge-
ments and other decisions of
judicial authorities as the
cornerstone of judicial cooperation within the Union. In civil
matters the European Council called for a further reduction of
the intermediate measures required to enable the recognition
and enforcement in one Member State of a judgement delivered
in another Member State.

1.1.1.
The joint programme of measures for the implemen-
tation of the principle of mutual recognition of decisions in
civil and commercial matters — a programme that was
established by the Commission and the Council at the request
of the European Council and adopted by the Council on
30 November 2000 (1) — singles out the abolition of exequatur
for uncontested claims as one of the Community’s priorities (1).

The introduction of the European Enforcement Order
1.1.2.
for uncontested claims forms the pilot project for the abolition
of exequatur.

Council Regulation (EC) No 44/2001 of 22 December
1.2.
2000 on jurisdiction and the recognition of judgements in civil
and commercial matters (hereinafter referred to as ‘Brussels I
Regulation’) entered into force on 1 March 2002. This
regulation represents a major step forward in streamlining the
procedure for obtaining a declaration of enforceability vis-à-
vis the 1968 Brussels Convention on jurisdiction and the
enforcement of judgements in civil and commercial matters
(hereinafter referred to as the ‘EEX Convention’).

1.3.
The Council now wishes to go a step further than the
Brussels I Regulation in proposing a regulation creating a
European Enforcement Order for uncontested claims.

(1) OJ C 12, 15.1.2001.

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1.3.1.
It must be emphasised that the ‘European Enforce-
ment Order’ has a twofold significance which reflects its
twofold objective. In the strict sense its aim is to abolish
exequatur. In the wider sense, it amounts to (the creation of) a
simple procedure for obtaining a decision which can be
enforced in all the Member States without exequatur. The
Commission is actively pursuing both objectives for uncontest-
ed claims, albeit not in the same legislative instrument.

national legislation into line with the minimum procedural
requirements in order that the largest possible number of
decisions on uncontested claims can be certified as a European
Enforcement Order. And secondly, creditors can choose
between the classical declaration of enforceability under Brus-
sels I Regulation and certification as a European Enforcement
Order.

1.4.
The present proposal seeks simply to achieve the first
objective, i.e. the abolition of exequatur as a precondition for
enforcement in another Member State of judicial decisions or
settlements and authentic instruments that have been attained
in the verifiable absence of any dispute by the debtor over the
nature or extent of the debt. It is assumed that this passivity
on the part of the debtor is a conscious choice based on the
fact that he recognises the existence of the debt or on his
deliberate disregard of the claim. For creditors, the abolition
of exequatur offers the advantage of speedy and efficient
enforcement abroad. In this proposal the European Enforce-
ment Order is understood to be a comprehensive and trans-
parent certificate which textifies that a court judgement or
settlement or an authentic act fulfills all the conditions for
enforcement throughout the Community without intermediate
measures.

1.5.
For the second, more extensive objective the Com-
mission is preparing a Green Paper on the creation of a
uniform or harmonised procedure for a European order of
payment, which is likely to be published before the end of
2002.

1.6.
Exequatur can only be abolished if Member States have
trust in each other’s legal systems. There must also be strict
observance of the requirements for a fair trial in accordance
with Article 6 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms as well as
Article 47 of the Charter of Fundamental Rights of the
European Union. For these reasons the Commission considered
that its proposal must lay down a number of minimum
procedural requirements with regard to the service of docu-
ments (more specifically, the admissible methods of service
and the time of service), which guarantee that the debtor is
properly informed about the claim against him and can
prepare his defence. Only if these minimum requirements are
complied with, will it be possible to abolish the checks on the
observance of the rights of the defence in the Member State
where the judgement is to be enforced.

2. Details of the proposal

2.1.
The subject matter is clearly defined in Chapter I
(Article 1), viz. the creation of a European Enforcement Order
for uncontested claims in civil and commercial matters in
order to permit the free circulation of court judgements, court
settlements and authentic instruments in all Member States.
The scope (Article 2) is identical to that of the Brussels I
Regulation.

Article 3 defines the following terms:

2.1.1.
judgement,
claim, uncontested, authority of a final decision, ordinary
appeal, authentic instrument, Member State of origin, Member
State of enforcement, and court of origin.

2.2.
Chapter II deals with the European Enforcement Order.
If the conditions laid down in Article 5 are satisfied, a
judgement delivered in a Member State by the court of origin
at the request of the creditor is to be certified as a European
Enforcement Order, with the result that it is recognised and
enforced in the other Member States without any special
procedure being required. Certification is provided by using
the standard form contained in Annex I (Article 7).

2.2.1.

The conditions laid down in Article 5 are as follows:

— the judgement

is enforceable and has acquired the
authority of a final decision in the Member State of origin;

— the judgement does not conflict with sections 3, 4 or 6

of Chapter II of the Brussels I Regulation;

Use of the ‘facilitated enforcement’ provided for in the
1.7.
proposed regulation is optional
in two respects. Firstly,
Member States can decide themselves whether to bring their

— where a claim is uncontested within the meaning of
Article 3(4)(b) or (c) of the proposed regulation, the court
proceedings must meet the procedural requirements set
out in Chapter III; and

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— where the service of documents required under Chapter III
of the proposed regulation has to be effected in a Member
State other than the Member State of origin, such service
has to conform with Article 31 (this refers to Council
Regulation (EC) No 1348/2000 on the service in the
Member States of judicial and extrajudicial documents in
civil or commercial matters (1), hereinafter referred to as
the Service Regulation).

2.3.3.
It is feasible that in exceptional circumstances the
debtor may not have obtained knowledge of the documents to
be served on him without any fault on his part. If the
conditions laid down in Article 20 are satisfied, the debtor is
entitled to relief from the effects of the expiration of the time
for ordinary appeal against the judgement by the competent
court of the Member State of origin.

2.2.2.
If a judgement as a whole does not meet these
conditions, provision is made in Article 6 for the issuing of a
partial European Enforcement Order.

2.2.3.
certificate is dealt with in Article 7.

The content of the European Enforcement Order

2.4.
Chapter IV deals with the actual enforcement. The
enforcement procedures are governed by the law of the
Member State of enforcement (Article 21). Only a copy of the
judgement, a copy of
the European Enforcement Order
certificate and, where necessary, a translation needs to be
provided.

2.2.4.
There is to be no appeal against a decision regarding
an application for a European Enforcement Order Certificate
(Article 8), bearing in mind the guarantees for the debtor set
out in Article 15.

2.2.5. When a judgement has not yet acquired the authority
of a final decision but all the other conditions in Article 5 are
satisfied, a European Enforcement Order can be issued for
protective measures (Article 9).

2.3.
A European Enforcement Order cannot be issued
unless the rights of defence were adequately guaranteed when
the court judgement forming the basis for the Order was
enacted. For these reasons the proposal lays down minimum
procedural requirements which must be satisfied by the court
proceedings in the Member State of origin. It is to be left to
the Member States to judge whether it
is necessary or
desirable to adapt their national legislation to these minimum
requirements.

2.3.1.
The minimum procedural requirements concern first
of all the serving of the document instituting the proceedings
(or an equivalent document). This must be served on the
debtor (the addressee) as soon as possible in order to give him
sufficient time to defend himself if he so wishes (Articles 11-
15). The debtor should also be duly informed about the claim
(Article 16) and about the procedural steps necessary to
contest it (Article 17) and to avoid a judgement in default of
appearance at a court hearing (Article 18).

2.3.2.
If the defendant has become aware of the proceedings
against him, he cannot simply rely on a procedural defect at
the beginning of these proceedings and on its automatic effect
on enforceability abroad. Article 19 specifies how, if necessary,
cure of non-compliance with minimum standards can be
obtained.

2.4.1.
If the judgement is irreconcilable with an earlier
judgement given in any Member State or a third country, the
Member State of enforcement may make judicial review
available to the debtor provided that strict conditions are met.
Under no circumstances may the judgement or its certification
as a European Enforcement Order be reviewed as to their
substance in the Member State of enforcement (Article 22).

Only in the exceptional circumstances described in
2.4.2.
Articles 20 and 22 is it possible to stay or limit the enforcement
proceedings (Article 23).

2.4.3.
The abolition of exequatur makes it easier to enforce
a judgement in another Member State. This does not detract
from the fact
that there are still considerable differences
between Member States’ enforcement procedures. The pro-
posal therefore specifies that Member States should work
together to provide information about
these procedures,
especially via the European Judicial Network (Article 24).

2.5.
Chapter V makes provision for the certification of
court settlements and authentic instruments as European
Enforcement Orders. Standard forms have also been drawn up
for this purpose. The provision of suitable information about
the direct enforceability of documents in all Member States is
also obligatory (Article 26).

2.6.
The domicile of both natural persons and companies
or other legal persons is to be determined by analogy with the
provisions in the Brussels I Regulation (Chapter VI, Articles 27-
28).

( 1) OJ L 160, 30.6.2000.

Chapter VII lays down detailed provisions specifying

2.7.
when the proposal is to come into force (Article 29).

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2.8.
Chapter VIII contains provisions about the relationship
with other Community instruments, viz. the Brussels I Regu-
lation and Regulation (EC) No 1348/2000, which are still
applicable (Articles 30-31). The creditor is still able to opt for
a declaration of enforceability under the Brussels I Regulation.

3.2.2.
The rights of defence are also safeguarded by the
obligation to inform the debtor, via the document instituting
the proceedings or the equivalent document, of the claim and
of the procedural steps necessary to contest the claim and
prevent a judgement being issued by default.

2.9.
The standard forms appended to the proposal can be
updated in accordance with the procedure provided for in
Article 33. The proposal is due to enter into force on 1 January
2004.

3. General comments

3.1.
The Committee endorses the aim of the proposal,
which offers considerable advantages vis-à-vis the procedure
for obtaining a declaration of enforceability under the Brussels I
Regulation. As a result of the abolition of exequatur, the
intervention of the judicial authorities in the Member State of
enforcement is no longer a requirement. The legal delays
caused by their intervention are thus avoided and costs are
saved. Translations are not required either in most cases, as
multilingual standard forms are used for the certification. The
economic advantages should also not be scorned, since it is
estimated that 90 % of court judgements which are enforced
in a Member States other than the Member State of origin
concern uncontested claims within the meaning of the pro-
posed regulation.

3.2. Member States’ trust in each other’s legal systems is
vital for the introduction of the European Enforcement Order.
It is necessary to ensure strict respect for the fundamental
principles of litigation and in particular for the right of defence.
In order to achieve this, the proposal includes minimum
procedural requirements.

Special attention is rightly paid to the serving of the
3.2.1.
relevant legal documents. One feature of judgements about
uncontested claims is that the debtor expressly agrees with the
claim (1) or does not take part in the court proceedings. In
order to be certain in the latter case that this is a conscious
choice on the part of the debtor, there need to be sufficient
guarantees with regard to the serving of the documents, which
must happen at such a time and in such a way as to enable the
debtor to defend himself, if he so wishes. Only if the debtor
has been duly notified in accordance with the minimum
requirements, can his non-appearance at a court hearing be
interpreted as a lack of defence against the claim.

3.2.3.
The proposal does not opt for the harmonisation of
Member States’ procedural rules. Nor are the aforementioned
minimum procedural requirements to be mandatory. Each
Member State can decide for itself whether to bring its
legislation into line with the minimum requirements set out in
the proposal. If national legislation does not comply with the
minimum requirements, this simply means that the judge-
ments issued in that Member State with regard to uncontested
claims cannot be certified as European Enforcement Orders. If
Member States’ provisions at present do not satisfy the
minimum procedural requirements, it will be up to them to
achieve the objective of the proposed regulation. This aim of
the draft legislative instrument — which seems modest at first
sight — should not cause us to lose sight of the advantages for
the inhabitants of Member States whose provisions do comply
or have been made to comply. It is likely that the results which
the proposed regulation achieves will drive Member States to
harmonise their procedural rules.

The term ‘claim’ is defined rather narrowly in the
3.3.
proposed regulation as ‘a pecuniary claim for a specific amount
that has fallen due’. This implies that the amount of the claim
must be fixed prior to the court proceedings, i.e. a precise
estimate must be indicated in the authentic instrument on the
basis of which it will be possible to apply for a European
Enforcement Order certificate.
the numerous
guarantees required for obtaining a European Enforcement
Order, this raises the question of whether pecuniary claims for
an undetermined amount should not be included, too. In this
case, it would suffice if the document or documents on which
the claim is based were to allow the precise amount to be
fixed.

In view of

3.4.
In keeping with a modern and constructive attitude
towards procedural rules, it is not the intention in the proposal
to adopt a purely formalistic approach to the strict formal
requirements. In particular, Article 19 exemplifies the concern
that the obtaining of a European Enforcement Order should
not be thwarted by formal requirements which have been
interpreted too strictly and which prompt the debtor to show
bad faith. This attitude also accords with the development set
in train by the transition from the EEX Convention to the
Brussels I Regulation (2).

( 1) In the course of the court proceedings the debtor either expressly
agrees with the claim or acknowledges the existence of the debt
or reaches a settlement which is approved by the court. Agreement
with the claim may also not involve any proceedings, for example
it may take the form of an authentic instrument.

(2) See Article 34(2) Brussels I Regulation and compare with the
ruling of the Court of Justice of 12 November 1992, Minalmet
versus Brandeis (case C-1233/91, European Court Reports 1992,
I-5661.

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3.5.
The proposal takes due account of, and follows on
directly from, the new Community legislative instruments that
have come into being since the amending of the European
Union’s competences, in particular the Brussels I Regulation
and the Service Regulation.

The proposed regulation does not make any provision
3.6.
either for the harmonisation of Member States’ provisions with
regard to enforcement. The mandatory execution of
the
European Enforcement Order will have to accord with the
enforcement provisions in force in the/each Member State. For
the plaintiff this is not very transparent and probably difficult
to comprehend. In addition, there are appreciable differences
between Member States’ bankruptcy and overindebtedness
provisions, and the protection offered by them to debtors.
Although harmonisation of all these provisions is clearly
outside the scope of the present proposal, the Committee
would like to draw attention to this difficult problem.

4. Specific comments

A court judgement can only be certified as a European
4.1.
Enforcement Order if the judgement is enforceable and has
acquired the authority of a final decision in the Member State
of origin (Article 5(a)). The term ‘ordinary appeal’ is given a
special Community content in the proposal (Article 3(6)),
based on the wording of the ruling issued by the Court of
Justice in the case Industrial Diamond Supplies versus Riva (1).
There is a reference in this wording to national law with regard
to the period laid down by law for lodging an appeal. This
definition offers too little legal certainty with regard to the
moment from which this period starts to run.
It should
therefore be amended as follows in the light of the lesson
learnt from the aforementioned judgement: ‘Ordinary appeal
means any appeal which may result in the annulment or the
amendment of the judgement which is the subject-matter of
the procedure of being certified as a European Enforcement
Order the lodging of which is bound, in the Member State of
origin, to a period which is laid down by the law and which
starts to run by virtue of the judgement itself or by virtue of
the service of the judgement’.

4.1.1.
In order to specify more clearly what type of appeals
should be covered here, the definition given in the proposal
should be more precise, in line with the definition given in the
aforementioned judgement of the Court of Justice, namely that
an ordinary appeal is ‘any appeal which forms part of the
normal course of an action and which, as such, constitutes a
procedural development which any party must reasonably
expect’ (2). The inclusion in the proposed regulation of the
Justice in the
negative definition given by the Court of

( 1) Court of Justice judgement of 22 November 1977, Industrial
Diamond Supplies v. Riva, case 43/77, European Court Reports
1977, I-2175, points 37 and 38.

( 2) Court of Justice judgement of 22 November 1977, Industrial
Diamond Supplies v. Riva, case 43/77, European Court Reports
1977, I-2175, point 37.

aforementioned judgement, could also avoid discussions and
difficulties with regard to certification as a European Enforce-
ment Order. Thus, the Court specified (3) that appeals ‘which
are dependent either upon events which were unforeseeable at
the date of the original judgement or upon the action taken by
persons who are extraneous to the case and who are not
bound by the period for entering an appeal which starts to run
from the date of the original judgement’ cannot be considered
as ‘ordinary appeals’. If amplified in this way, the definition
satisfies the aim of the regulation, viz. the swift enforcement
of judgements, and also takes account of the ultimate fate of
the judgement to be enforced.

4.2.
The explanation with regard to Article 7(3) specifies
that the number of copies of the European Enforcement Order
certificate must correspond to the number of enforceable
originals of the judgement which are supplied to the creditor
in the Member State of origin. However, the proposal itself
talks about ‘authenticated copies’ whereas ‘enforceable instru-
ments’ is clearly meant. The text should expressly refer to the
enforceable original of the judgement, which can be certified
as a European Enforcement Order. On the one hand, various
types of copies of court judgements are provided for in the
legislation of different Member States and these cannot always
serve as a basis for mandatory enforcement (4). On the other
hand, the aim is rightly to supply as many copies of the
European Enforcement Order certificate as there are enforce-
able originals of a judgement. In addition, the term ‘enforceable
original’ should also be defined more precisely in Article 3.

4.3.
In Article 11(1)(b) and (c) the phrase ‘or has refused to
take receipt of the document’ should be added. Refusal on the
part of the debtor to take receipt of a document served on him
should not stand in the way of the judicial process leading to
a judgement which satisfies the requirements to be certified as
a European Enforcement Order (5). The same problem also
arises in connection with Article 11(1)(d), for which a suitable
solution should also be found, with due regard to the special
features of the technology referred to therein and future
technological developments (as a result of which, for example,
an automatic acknowledgement of receipt could be generated).

(3) Court of Justice judgement of 22 November 1977, Industrial
Diamond Supplies v. Riva, case 43/77, European Court Reports
1977, I-2175, point 39.

(4) Under Belgian law a distinction can be made between unsigned
copies, certified copies and an enforceable original of a judgement.
In principle only one enforceable original of a ruling or verdict is
supplied to any one party (see Article 1379 of the Belgian Legal
Code).

(5) See Article 13(a), which rightly fails to mention the case provided
for in Article 11(1)(b). Compare with Article 13(b)(iii):
‘if the
document has been served on a person other than the debtor, .....’.

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4.4.
For the sake of the cross-border serving of documents,
the terms ‘statutory legal representative’ and ‘authorised rep-
resentative’ in Article 11(2) should be defined in Article 3 in
line with the explanations given in the explanatory memor-
andum. Neither of these terms is defined in the Service
Regulation.

4.5.
A number of vague terms are used in Article 12(1). If
these are not defined more precisely, they could be interpreted
differently, at least in the case of the cross-border serving of
documents. The terms in question are: ‘reasonable efforts to
serve the document’ (Article 12(1), introduction) and ‘adults’
(Article 12(1)(a)). Here, too, a uniform definition should be
found. The expression ‘if the mailbox is suitable for the safe
keeping of mail’ (Article 12(1)(d)) is also vague and could
be interpreted differently. The remarks made above about
Article 11(2) also apply to Article 12(2).

The draft Article 15(1) spells out what is meant by
4.6.
‘service in sufficient time to arrange for defence’. This period
must be calculated ‘starting from the date of service of the
document which institutes the proceedings or of an equivalent
document’ (Article 15(1) in fine). Similar terms and timeframes
are to be found in Article 15(2). Depending on the details of
the court action, the precise time at which the document is
served and the way in which these timeframes must be
calculated will be governed by either the law of the Member
State empowered to judge on the claim (when the document
is served on the debtor in the same Member State) or the law
of the Member State which is requested to do the serving (in
the event of cross-border serving). The explanation given in
Article 9(1) of the Service Regulation with regard to this time
will prove useful in the latter case. This does nothing to detract
from the fact that, in order to avoid all discussions and legal
uncertainty, the proposed regulation must specify which law
is to be used — in the event of cross-border serving — to
calculate the 28-day timeframe (the law of the Member State
where the proceedings initiating the European Enforcement
Order are conducted, or the law of the Member State which is
requested to do the serving).

come from another source apart from the court (e.g. the
creditor himself or the bailiff acting on his behalf) (1).

4.8.
The Dutch version of the draft Article 20(1)(a)(i) — ‘de
schuldenaar heeft buiten zijn schuld niet tijdig genoeg van de
beslissing tot instelling van een gewoon rechtsmiddel kennis
kunnen nemen’ is an infelicitous and inaccurate rendering (2)
of what the text is meant to say and which in English reads
‘did not have knowledge of the judgement in sufficient time to
lodge an ordinary appeal’ (cf the French version ‘n’a pas eu
connaissance de la décision en temps utile pour exercer un
recours ordinaire’). The phrase ‘tot instelling van een gewoon
rechtsmiddel’ should be deleted.

4.9.
The draft Article 20 deals with relief from the effects
of the expiration of time for lodging an appeal against a
judgement regarding an uncontested claim, but the conditions
governing this, as set out in the introduction to Article 20(1)
and in Articles 20(1)(a)(ii) and (iii) and Article 20(1)(b), seem
to be contradictory. It is difficult to see how the requirement
in Article 20(1)(b) (‘the debtor has disclosed a prima facie
defence to the action on the merits’) can be satisfied if the
debitor did not have knowledge of the document instituting
the proceedings or equivalent document in sufficient time to
defend himself (Article 20(1)(a)(ii)) or did not have knowledge
of the summons in sufficient time to appear at a court hearing
(Article 20(1)(a)(iii)). This applies even more so to the case
mentioned in Article 3(4)(b), to which Article 20(1) refers in
its introduction.

4.10.
The term ‘court settlement’ (Article 25), which has
already been used in Article 58 of the Brussels I Regulation
without being defined, should for the sake of clarity be
included in the definitions in Article 3 (where it is already
referred to implicitly in Article 3(4)(d)).

4.11.
In contrast with other recent Community instruments
in the field of procedural law, this proposed regulation makes
no provision for reports on its application or any proposals
for amendments (cf. Article 73 of the Brussels I Regulation
and Article 24 of the Service Regulation). The very fact that
the draft regulation is the first step in a programme for
improving the effectiveness of the measures for enforcing
judgements, is a good enough reason for recommending the
inclusion of such a provision.

4.7.
There should be no mention of a court in Article 18.
There are major differences between Member States’ laws with
regard to the drawing-up of summons and the intervention of
the judge or the court. The proposed regulation does not seek
to harmonise procedural law in the Member States and the
information to be supplied under Article 18 can just as well

(1) Under Belgian law a judge or a court does not intervene before a

summons is served on a defendant.

(2) See also the explanatory memorandum on Article 20:

‘If the

debtor did not receive the judgement in time ....’.

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5. Conclusions

5.1.

The Committee welcomes the proposed regulation:

— The introduction of a European Enforcement Order has
considerable advantages vis-à-vis the existing exequatur
procedure. There is no need for the judicial authorities in
the Member State to intervene, and this saves time and
money. As a result of the extensive guarantees with
regard to the rights of defence, it is possible to abolish
checks. Another simplification is that translations are
unnecessary in most cases, since multilingual standard
forms are used for the European Enforcement Order
certificates.

— The proposed regulation makes allowance for, and
accords with, the Brussels I Regulation and the Service
Regulation, which are being used as the basis for creating
a European judicial area.

5.2.
The weak point in the proposal is the freedom which
the Member States have to decide whether to adapt national
procedural rules to the minimum requirements laid down in
the proposed regulation. It is to be hoped that Member States

Brussels, 11 December 2002.

will quickly realise that a European Enforcement Order can
offer creditors nothing but advantages with the result that,
where necessary, provisions will be adjusted swiftly and
fittingly in the light of the minimum procedural requirements.

5.3.
Though the proposed regulation undoubtedly rep-
resents a new step towards the creation of a European judicial
it must be emphasised that there is still a very long
area,
way to go before this area is created. More far-reaching
harmonisation of national procedural laws (including enforce-
ment laws)
is vital. The Committee is well aware of the
challenges involved here, because of the impact of these rules
on difficult and delicate issues such as the equal treatment of
creditors, consumer protection and the provisions on crisis-
ridden, bankrupt and overindebted companies.

The Committee recommends that the possibility of
5.4.
framing similar provisions for alternative dispute resolution
(ADR) be examined. ADR is quite rightly a political priority
for the EU institutions, and the publication of the Green Paper
on alternative dispute resolution in civil and commercial law
(Brussels, 19 April 2002 (1)),
is a clear indication of the
renewed interest in such procedures.

(1) COM(2002) 196 final.

The President

of the European Economic and Social Committee

Roger BRIESCH