Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council creating a European enforcement order for uncontested claims
Date: 2004-02-09
Institutions: European Commission
Subjects: civil law, claim, commercial law, judicial cooperation in criminal matters in the EU, law of obligations

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 9.2.2004 
COM(2004) 90 final 

2002/0090 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council creating a European enforcement order for uncontested 
claims  

EN 

   EN 

 
 
 
  
 
 
  
  
2002/0090 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council creating a European enforcement order for uncontested 
claims  

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2002)159 final – 2002/0090 (COD): 

18.04.2002. 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

11.12.2002. 

Date of the opinion of the European Parliament, first reading: 

08.04.2003. 

Date of transmission of the amended proposal: 

Date of adoption of the common position: 

12.06.2003 

06.02.2004 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

This proposal is designed to enable creditors who have obtained an enforceable judgment in 
respect of a pecuniary claim which has not been contested by the debtor to have it enforced 
directly  in  another  Member  State,  so  as  to  ensure  the  free  circulation  of  judgments.  In  the 
realm of decisions on uncontested claims it aims at eliminating the intermediate measures that 
are  currently  necessary  for  enforcement  in  another  Member  State  (the  so-called  exequatur 
procedure) and at dispensing with the possibility of opposing recognition. The Commission’s 
proposal thus implements for the first time the principle whereby Member States must  treat 
the judgments of courts in other Member States as if they had been given by their own courts, 
and  offers  an  additional  option  of  facilitated  enforcement  to  creditors,  but  without  obliging 
them to utilise it. 

The proposal contains minimum standards with regard to the service of documents covering 
the  admissible  methods  of  service  and  the  proper  information  of  the  debtor  with  a  view  to 
enabling the preparation of a defence and thus  guaranteeing the fairness of the proceedings. 
Only  compliance  with  these  minimum  standards,  which  is  verified  by  the  courts  of  the 
Member  State  of  origin  in  the  procedure  leading  to  the  certification  of  a  judgment  as  a 
European enforcement order, justifies the abolition of control of the observance of the rights 
of the defence in the Member State where the judgment is to be enforced. 

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3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

General comment 

The general approach which the Council agreed upon unanimously on 27 November 2003 led 
to the adoption of a common position by written procedure on 6 February 2004. 

The Council’s common position preserves the essentials of the Commission’s initial proposal 
as modified by the amended proposal. 

The main changes made in the common position concern the following issues: 

– 

– 

– 

– 

– 

the  common  position  no  longer  requires  the  final  nature  of  a  judgment  as  a 
prerequisite  for  its  certification  as  a  European  enforcement  order  but  considers  the 
enforceability  of  a  judgment  as  being  sufficient  in  spite  of  its  being  subject  to  the 
possibility  of  an  appeal.  If  an  appeal  or  another  challenge  materialises  the  decision 
following  that  challenge  is  enforceable  in  other  Member  States  under  the  same 
conditions,  i.e.  without  exequatur,  even  though  the  underlying  claim  is  no  longer 
uncontested since it would be unacceptable to invalidate the European enforcement 
order  and  oblige  the  creditor  to  start  all  over  again  with  an  exequatur  procedure  in 
that  situation.  Indeed,  in  the  case  of  such  a  solution,  any  debtor  against  whom  a 
certificate  has  been  issued  could  delay  enforcement  of  the  judgment  by  lodging  an 
appeal, even an obviously unfounded one, in the country of origin and annulling the 
beneficial  effect  of  the  use  of  the  European  enforcement  order.  This  would 
undermine  the  very  objective  of  the  Regulation,  the  simplification  and  the 
acceleration  of  cross-border  enforcement,  to  the  point  of  rendering  the  instrument 
counter-productive.  The  debtor’s  legitimate  interests  in  the  event  of  an  appeal 
subsequent  to  the  issuance  of  a  European  enforcement  order  certificate  are 
adequately safeguarded by Articles 8Y and 23 that relate to the stay or limitation of 
enforcement; 

the  common  position  retains  the  principle  that  no  appeal  lies  against  the  issuing  of 
the  European  enforcement  order  certificate.  It  newly  introduces,  however,  the 
possibility  for  the  debtor  to  apply  for  the  rectification  of  material  errors  in  the 
certificate (e.g. a typing error) and for the withdrawal of the certificate where it has 
been clearly wrongly granted; 

consumers  as  judgment  debtors  are  accorded  special  protection  going  beyond  the 
control  of  compliance  with  the  jurisdictional  rules  of  Council  Regulation  (EC)  No 
44/2001 (“Brussels I”). A judgment delivered against a consumer in the absence of 
an  explicit  admission  of  the  claim  in  question  can  only  be  certified  as  a  European 
enforcement order if the consumer is domiciled in the Member State of origin; 

instead  of  a  hierarchical  structure  of  methods  of  service  which  would  require  an 
attempt to serve on the debtor in person before resorting to other means of service, 
the  Council  has  agreed  to  permit  the  unrestricted  choice  of  any  of  the  admissible 
methods  of  service  as  exhaustively  listed  in  the  proposal  and  has  added  the 
possibility,  under  certain  conditions,  of  postal  service  without  proof  of  receipt  or 
delivery; 

on  the  other  hand,  all  those  methods  of  service  that  provide  a  high  degree  of 
likelihood  but  no  full  proof  that  the  document  served  has  reached  its  addressee  are 

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admissible only on the condition that under the law of the Member State of origin the 
debtor is entitled to apply for a full review of the judgment in those exceptional cases 
where in spite of service in compliance with this Regulation the debtor has not taken 
cognisance of the document at issue in sufficient time to be able to arrange for his 
defence. 

The Commission can accept the common position which, although modifying some specific 
features  of  the  Commission’s  original  proposal  as  amended  following  Parliament’s  opinion, 
remains  faithful  to  the  ambitious  goal  of  the  abolition  of  exequatur  including  any  public 
policy–related  control  and  strikes  a  fair  balance  between  a  major  simplification  of  cross-
border enforcement for creditors and the adequate protection of the debtors’ rights. 

3.2. 

The  incorporation  of  Parliament  amendments  into  the  amended  proposal  and 
the common position 

3.2.1.  Amendments incorporated in full or in part into the amended proposal and into the 

common position 

3.2.1.1  Recitals 

Amendment  1  (Recital  3a),  which  takes  note  of  the  applicability  of  the  co-decision 
procedure  since  the  entry  into  force  of  the  Nice  Treaty,  has  been  taken  on  board  with  a 
slightly shortened wording but without any substantive change. 

3.2.1.2  Articles 

Amendment 2 (Article 3 (4) (b) of the original proposal, now Article 2a (1) (b)) combined 
two  modifications  of  the  definition  of  one  sub-category  of  the  term  “uncontested  claims”. 
The first one aimed at clarifying that, in order to constitute a valid grounds for opposition of a 
claim,  the  debtor’s  conduct  must  be  in  conformity  with  the  procedural  requirements  of  the 
Member  State  of  origin.  The  Commission  subscribed  to  this  intention  but  chose  a  wording 
that avoids the reference to a “formal application” which may not be suitable for all Member 
States and all types of procedures and does not cover all the scenarios that should be covered 
(e.g. that of a debtor who expressly applies for a dismissal himself although representation by 
a  lawyer  is  mandatory).  The  reference  to  “compliance  with  the  relevant  procedural 
requirements of the Member State of origin” of the amended proposal was incorporated into 
the common position. The Council decided, however, to remove the part of the sub-paragraph 
which stipulates that stating factual difficulties to pay cannot be regarded as an objection. 

The  second  modification  which  would  render  inadmissible  as  a  valid  objection  to  a  claim 
“statements  of  opposition  in  pre-litigation  proceedings  if  they  automatically  lead  to  court 
litigation  proceedings”  was  rejected  by  the  Commission  and  not  taken  on  board  by  the 
Council either. It is unnecessary and misleading. As far as the pre-trial period is concerned the 
current wording already clearly sets out that the opposition has to be lodged “in the course of 
the  court  proceedings”.  The  intention  of  the  amendment  appears,  however,  primarily  to 
address  statements  of  opposition  in  summary  order  for  payment  proceedings  (injonction  de 
payer, Mahnverfahren) as only those can automatically lead to  adversarial proceedings. For 
those  proceedings  the  terminology  “pre-litigation”  is  inappropriate  because  they  already 
constitute  court  proceedings.  Furthermore,  the  situation  of  initial  opposition  but  subsequent 
abstention from participation is already specifically governed by the following sub-paragraph 
of the same Article. 

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Amendment 5 (Article 4) rephrased the description of the legal effect of the certification of a 
judgment as a European Enforcement Order, the abolition of exequatur, by explicitly equating 
it  with  a  “national  enforcement  order”.  The  Commission  considered  it  preferable  to  refer 
more directly to the consequences of that equation by bringing the wording in line with the 
text that has been agreed upon by the Council in respect of the abolition of exequatur for some 
decisions on parental responsibility and stating that a certified judgment “shall be recognised 
and enforced in the other Member States without the need for a declaration of enforceability 
and  without  any  possibility  of  opposing  its  recognition”.  The  Council  has  left  the  amended 
proposal unchanged in that respect. 

Amendment 9 (Article 11 (1) (b)) was designed to equate the debtor’s refusal to accept the 
document in question attested by the competent person effecting the service with successful 
personal  service  on  the  debtor.  It  was  accepted  by  the  Commission  and  integrated  into  the 
common  position  with  the  additional  clarification  that  the  refusal  can  only  be  regarded  as 
equivalent to service  where  the  debtor lacks a legal justification for his conduct  which may 
exist under certain conditions such as those set out in Article 8 of Council Regulation (EC) 
No  1348/2000  of  29  May  2000  on  the  service  in  the  Member  States  of  judicial  and 
extrajudicial documents in civil or commercial matters. 

Amendment 14 (Article 16 (d) of the proposal) was intended to clarify that the very brief 
description of the justification of the claim at issue that is usually sufficient in summary debt 
collection  procedures (injonction de payer, Mahnverfahren) also meets the requirements for 
certification as a European Enforcement Order. Instead of adding additional legal terminology 
to  existing  terminology  and  rendering  the  provision  rather  less  easily  comprehensible,  the 
Commission  suggested  shortening,  simplifying  and  broadening  the  wording  in  a  way  that 
would  remove  any  possible  doubt  in  that  respect.  The  amended  proposal  requiring  “a 
statement  of  the  reason  for  the  claim”  has  been  incorporated  into  the  common  position 
without further changes. 

3.2.2.  Amendments  included  in  the  amended  proposal  but  not  incorporated  into  the 

common position 

Amendment  4  concerned  a  clarification  of  the  definition  of  the  term  “ordinary  appeal”  in 
Article 3 (6). As a consequence of the elimination of the requirement of the final nature of a 
judgment,  to  be  characterised  by  the  lack  of  an  ordinary  appeal  against  that  decision,  the 
definition has become obsolete. Therefore, Article 3 (6) has been deleted in its entirety.  

Amendment 6 (Article 7 (1), on the issuance of the certificate only after the decision on the 
application has become final), Amendment 7 (Article 7 (4), on the service of the decision on 
the  certificate  on  the  debtor),  Amendment  8  (Article  8,  on  appeal  against  the  European 
enforcement order certificate) and Amendment 16 (aimed at reflecting amendments 6, 7 and 8 
in the standard form of the certificate) should be dealt with together as they are all aimed at and 
related  to  the  introduction  of  a  possibility  to  appeal  against  the  issuing  or  the  refusal  of  a 
European  Enforcement  Order  certificate.  Short  of  a  right  to  appeal  but  with  a  view  to 
strengthening the rights of the defence in the certification procedure the Commission inserted, 
in  its  amended  proposal,  a  new  Article  6a  pursuant  to  which  the  application  for  a  European 
enforcement order certificate would have to be served on the debtor in order to afford the debtor 
the opportunity of bringing his point of view with regard to the fulfilment of the requirements 
for  certification  to  the  court  of  origin’s  attention  before  it  decides  on  the  application.  The 
common position takes a different approach which attains the amendments’ objectives, albeit by 
slightly  different  means.  Article  8  (4)  retains  the  principle  of  the  unavailability  of  an  appeal 

5 

 
 
  
 
against  the  issuing  of  a  certificate  whereas  the  issue  of  an  appeal  against  the  refusal  of  the 
certificate is no longer addressed anywhere and thus left to national law. The newly introduced 
preceding  paragraphs  of  Article  8  provide  the  debtor  with  adequate  devices  to  request  the 
rectification of material errors in the certificate as well as its withdrawal where it was clearly 
wrongly  granted  having  regard  to  the  requirements  laid  down  in  the  Regulation.  The 
Commission  can  lend  its  support  to  the  Council’s  position  which  fully  protects  the  debtor’s 
rights without hampering the enhanced efficiency of cross-border enforcement. 

Amendment  10  (Article  11  (2))  introduced  a  reference  back  to  national  law  as  regards  the 
admissibility  of  the  service  of  documents  on  the  debtor’s  legal  representative  instead  of  the 
debtor  himself.  The  discussions  in  the  Council  have  revealed  the  complexity  of  the 
determination  of  the  applicable  law  (law  of  the  Member  State  of  origin  or  law  of  the  place 
where service took place) for various aspects related to the representation of the debtor. The 
common  position  has,  therefore,  restored  the  wording  of  the  original  Commission  proposal 
with a minor change in the new Article 12 A and deleted any reference to national law. The 
Commission  can  accept  this  change,  particularly  in  the  light  of  the  fact  that  the  Member 
States’ courts will automatically examine compliance with their own national law (including 
private international law and hence where applicable the law of the place where service was 
effected) in the proceedings leading to the judgment.  

Amendment  11  (Article  12  (1)  of  the  proposal)  was  intended  to  clarify  that  one  single 
unsuccessful  attempt  at  personal  service  on  the  debtor  is  sufficient  to  allow  recourse  to 
methods  of  substitute  service.  This  clarification  is  no  longer  appropriate  since  the  common 
position has dispensed with the hierarchy between Articles 11 and 12.  

The  same  amendment  also  contained  wording  according  to  which  substitute  service  “in 
particular” by one of the following methods shall be admissible. This drafting would turn the 
subsequent list into a non-exhaustive one. The Article would, in this form, no longer provide 
any limitations on the admissible methods of service and therefore undermine the objective of 
setting  up  reliable  minimum  standards.  That  part  of  the  amendment  was  therefore 
incorporated neither into the amended proposal nor into the common position. 

Amendment  15  (Article  19  (2)  of  the  proposal)  eliminated  the  possibility  of  certifying  a 
judgment  as  a  European  Enforcement  Order  in  spite  of  non-compliance  with  the  minimum 
standards  on  service  provided  it  is  established  that  the  debtor  has  received  the  document  at 
issue personally and in sufficient time to arrange for his defence. The Council took the view 
that  this  provision  can  be  of  practical  value  but  also  responded  to  the  criticism  of  the  risks 
inherent in its vagueness by imposing the additional concrete condition that it must be debtor 
himself  who  explicitly  or  implicitly  through  his  own  conduct  in  the  court  proceedings 
confirmed the fulfilment of these requirements. The Commission can accept this change.  

3.2.3.  Amendments  rejected  by  the  Commission  and  not  incorporated  into  the  common 

position 

Amendment 3 (Article 3 (4) (c) of the proposal) aimed at introducing the requirement of the 
debtor’s  fault  in  order  to  consider  his  non-appearance  in  a  court  hearing  as  a  case  of  an 
uncontested  claim.  This  requirement  would,  in  almost  all  cases,  prevent  the  delivery  of  a 
European  Enforcement  Order  certificate  because  the  court  of  origin  is  ordinarily  only  in  a 
position to assess if the debtor was properly summoned to a hearing. Even if he was and he did 
not enter an appearance the court will not be able to rule out the possibility that he could not 
attend the hearing without any fault on his part (e.g. because of a traffic accident on the way to 
court).  Besides,  for  the  problematic  cases  where  it  is  relevant  the  criterion  of  the  absence  of 

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fault on the debtor’s part constitutes a prerequisite for review in exceptional cases under Article 
19 A. 

Amendment 12 (Article 12 (3) of the proposal) added the compliance with the domestic law 
of Member State of origin to the requirements for the admissibility of the use of a substitute 
method  of  service.  The  introduction  of  such  a  prerequisite  would  be  new  and  alien  to  the 
proposal. The courts of the Member State of origin have to scrutinise compliance with the rules 
on  the  service  of  documents  in  the  main  proceedings  anyway.  Repeating  the  requirement  of 
compliance with the law of the Member State of origin in the context of the certification would 
entail a duplication of work for the courts of the Member State of origin. It would also represent 
a  step  backwards  as  compared  to  Council  Regulation  (EC)  No  44/2001  whose  Article  34  (2) 
dropped  that  requirement  which  had  existed  pursuant  to  Article  27  (2)  of  the  1968  Brussels 
Convention. 

Amendment  13  (new  Article  14  a)  would  incorporate  a  new  provision  according  to  which 
every  reference  to  a  court  hearing  in  the  proposal  shall  be  understood  as  a  reference  to  the 
other  procedure  held  in  lieu  of  such  hearing  with  the  intention  of  duly  taking  into  account 
those  procedures  that  do  not  include  a  hearing.  Such  a  new  Article  is  superfluous  since  the 
provisions referring to a court hearing simply become irrelevant and inapplicable if no hearing 
has  taken  place.  In  that  event  there  is  only  a  need  for  those  procedural  minimum  standards 
that do not presuppose a hearing. It remains unclear what should replace the hearing as a point 
of reference and what purpose such a modified reference should serve in practice.  

3.3. 

New  provisions  inserted  and  provisions  deleted  or  changed  beyond  cosmetic 
modifications by the Council 

3.3.1 

Recitals 

Recital 5a has been inserted to better illustrate the two scenarios of lack of participation in 
court  proceedings  that  are  considered  as  implying  a  lack  of  objections,  one  being  the  non-
appearance  in  a  court  hearing  and  the  other  the  failure  to  comply  with  an  invitation  to  give 
notice of the intention to defend the case in a written procedure. 

Recital  5b  is  intended  to  clarify  that,  as  a  corollary  of  the  enforceability  of  a  judgment 
replacing its final nature as a sufficient condition for certification as a European enforcement 
order  (see  point  3.1  above),  this  Regulation  applies  not  only  to  judgments  on  uncontested 
claims  strictly  speaking  but  also  to  the  decisions  delivered  following  challenges  to  such 
judgments even though the claim at issue has turned into a contested one. 

Recital 6 now includes an additional explanation of what the abolition of exequatur implies 
for the United Kingdom and the registration of foreign judgments which will continue to be 
required without, however, leaving room for a review as to the substance as in the exequatur 
procedure. 

Recital 11a sets out the link between the admissibility of the use of the methods of service 
pursuant  to  Article  12,  which  in  spite  of  their  high  degree  of  reliability  cannot  provide  full 
proof that the debtor has personally taken cognisance of the document served on him, and the 
existence of a review procedure in compliance with Article 19 A in those very few cases in 
which the minimum standards of Article 12 have been complied with but the document inn 
question has not been brought to the knowledge of the debtor nonetheless. 

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Recital 11b makes clear that, in contrast to Article 11 (1) (b) where this scenario is expressly 
dealt with, the refusal by the debtor’s flatmate or employee to accept a document to be served 
cannot be regarded as being equivalent to successful service. 

Recital 11c spells out that the term “representative” as used in Article 12 A covers both the 
statutory representative of a debtor who cannot represent himself in court and the authorised 
representative chosen by the debtor. 

Recital  15a  specifies  that  with  regard  to  the  cross-border  service  of  documents  this 
Regulation  does  not  supplant  Regulation  (EC)  No  1348/2000  on  the  service  in  the  Member 
States of judicial and extrajudicial documents in civil or commercial matters. Rather, the two 
instruments  apply  in  a  cumulative  fashion.  Whilst  Regulation  No  1348/2000  stipulates  how 
service  has  to  be  effected  in  cross-border  litigation,  the  judgment  resulting  from  those 
proceedings  can  only  been  certified  as  a  European  enforcement  order  if  the  minimum 
standards of Chapter III where they are applicable have also been complied with.  

3.3.2 

Articles 

Article 2 has been amended to clarify that the liability of the State for acts and omissions in 
the exercise of State authority (‘acta iure imperii’) does not constitute a civil and commercial 
matter and does therefore not fall within the scope of this Regulation. 

Article 2 A has been introduced to highlight the particular importance of the definition of the 
term “uncontested” formerly dealt with in Article 3 (4) and to spell out clearly, in paragraph 
2,  that  once  a  judgment  has  been  certified  as  a  European  enforcement  order  due  to  the 
uncontested nature of the underlying claim this Regulation continues to apply to subsequent 
judgments although the claim has become a contested one.  

An additional reference to national law has been inserted in paragraph 1 (c) in order to make 
sure  that  under  the  specific  circumstances  set  out  a  Member  State’s  court  does  not  have  to 
certify a judgment as a European enforcement order where, in spite of the failure of the debtor 
to appear, the claim continues to be considered contested under its national procedural law. 

In  Article  3,  paragraphs  5  and  6  have  become  obsolete  as  a  consequence  of  dropping  the 
requirement  of  a  final  decision.  Paragraph  3  has  been  modified  to  allow  certification  of 
judgments  that  relate  to  claims  which  have  not  yet  fallen  due  but  whose  future  due  date  is 
indicated in the judgment including recurring periodic payments such as maintenance claims.  

Article 5 reflects a general change running through the whole Regulation. Instead of the court 
that has jurisdiction for the certification as in the amended Commission proposal, the common 
position indicates the court to which the application has to  be  addressed,  thus  leaving  some 
flexibility for Member States as regards the attribution of jurisdiction. 

The  new  paragraph  1  (c1)  embodies  the  special  protection  for  consumers  already  set  out 
above  (point  3.1).  Due  to  the  introduction  of  a  special  rule  for  consumer  matters,  the 
requirement of compliance with section 4 of Chapter II of Regulation (EC) No 44/2001 which 
deals with these matters has been deleted in paragraph 1 (b). 

Paragraphs  2  and  3  introduce  two  new  standard  forms  to  attest  the  loss  or  limitation  of 
enforceability of a judgment previously certified as a European enforcement order and, in the 
event of a decision following a challenge to a judgment certified as a European enforcement 
order, to replace the original certificate by a new one based on the latter decision. 

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Article  5  A  stipulates  that  where  a  judgment  on  an  uncontested  claim  that  includes  an 
enforceable decision on a specific amount of costs the cost decision is also fully enforceable 
without exequatur unless the debtor has specifically disputed his liability in that respect. 

Article 6 has been significantly simplified and shortened without substantive modification. 

As regards Article 7, paragraph 3 (which determined the number of authenticated copies of 
the  European  enforcement  order  to  be  supplied  to  the  creditor)  was  considered  superfluous 
and hence removed. 

Article  8  has  been  amended  to  create  the  possibility  of  rectification  and  withdrawal  of  the 
European enforcement order certificate already described in points 3.1 and 3.2.2 above. The 
details of those procedures are governed by national law. 

Article 8 Y articulates the straightforward principle that the abolition of exequatur, intended 
to put judgments issued abroad on an equal footing in the Member State of enforcement with 
judgments  delivered  in  that  Member  State,  must  not  result  in  the  certified  judgment  being 
more easily enforceable abroad than in the Member State of origin. A parallel provision with 
the  same  wording  has  also  been  agreed  upon  by  the  Council  in  respect  of  the  abolition  of 
exequatur  for  some  decisions  on  parental  responsibility  If  the  judgment  is  no  longer 
enforceable  or  enforceable  only  subject  to  certain  constraints  in  the  Member  State  of  origin 
the  existence  of  a  European  enforcement  order  cannot  be  misconstrued  as  entitling  the 
creditor  to  continued  (unrestricted)  enforcement  in  other  Member  States.  Where  necessary, 
the debtor may obtain a certificate attesting the lack or limitation of enforceability pursuant to 
Article 5 (2). 

Article 9, which dealt with the specific situation of judgments on uncontested claims that are 
enforceable  but  still  subject  to  appeal,  has  become  obsolete  in  the  light  of  the  fact  that  the 
final nature of a judgment has been dispensed with as a prerequisite for certification, and has 
therefore been deleted. 

Article 10 includes a new paragraph 2 which establishes the conditions for the applicability of 
the minimum standards set out in Chapter III to the certification, pursuant to Article 5 (3), of a 
decision  following  a  challenge  to  a  judgment  certified  as  a  European  enforcement  order. 
Where the proceedings subsequent to the challenge have been contentious there is no need for 
the  special  protection  of  the  debtor  by  the  requirements  laid  down  in  Chapter  III.  Where, 
however, the decision following the challenge is itself based on the default of appearance at a 
court hearing or the lack of participation in the proceedings interpreted as a tacit admission of 
the claim and the conditions of Article 2A (1) (b) or (c) are fulfilled the provisions of Chapter 
III have to be applied, mutatis mutandis, to the proceedings following the challenge. 

Article 11 is unchanged apart from the modifications already dealt with in points 3.2.1.2 and 
3.2.2 above. 

Article 12 is characterised by the simplification and clarification of the description of those 
admissible  methods  of  service  that  were  already  included  in  the  amended  Commission 
proposal  without  implying  significant  substantive  changes.  Two  new  methods  of  service, 
postal  service  without  proof  of  reception  and  electronic  service  with  an  automatic 
confirmation of delivery, have been added under conditions which ensure a very high degree 
of likelihood that the document served has actually reached its addressee. Reference can also 
be made to the comments on this Article and its relationship with Article 11 in points 3.1 and 
3.2.2 above.  

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Article 12 A has already been dealt with in point 3.2.2 (Amendment 10) above. 

Article  13  has  been  deleted  as  a  separate  provision  since  provisions  on  the  admissible 
methods of proof of service have been incorporated into Articles 11 and 12.  

The same reasoning explains the elimination of Article 14 due to the decision of the Council 
to determine the minimum standards on the method of service comprehensively in Articles 11 
and 12 for both the document instituting the proceedings and, where applicable, the summons 
to a court hearing. 

Article 15 was deleted given a general agreement in the Council that there can be full mutual 
trust  that  Member  States’  national  legislation  allows  sufficient  time  periods  for  the 
preparation  of  defence  after  service  of  a  document  instituting  court  proceedings  or  of  a 
summons to a court hearing, which means that a minimum standard governing this particular 
issue is not required. 

Article  17  and  the  former  Article  18  have  been  merged  into  one  to  create  an  all-
encompassing  rule  on  due  information  of  the  debtor  covering  both  the  summons  to  a  court 
hearing  and  the  reply  to  the  document  instituting  the  proceedings  in  the  written  form.  The 
content of the provision has been considerably streamlined and simplified. 

Article  19  paragraph  1  has  been  amended  with  a  view  to  streamlining  its  wording  and 
removing a minimum standard concerning the time period for an appeal or another challenge 
for the same reasons which led to the deletion of Article 15. The re-introduction of a modified 
paragraph 2 has already been commented upon (see point 3.2.2 above). 

Article 19 A replaces Article 20 of the amended Commission proposal as the provision that 
deals  with  two  different  exceptional  situations,  the  failure  of  service  to  put  the  debtor  in  a 
position to properly arrange for his defence in spite of compliance with Article 12 (which, as 
opposed  to  Article  11,  does  not  carry  full  proof  that  the  debtor  has  taken  cognisance  of  the 
document  in  question)  on  the  one  hand  and  the  inability  to  contest  the  claim  due  to  force 
majeure  or  other  exceptional  circumstances  beyond  the  debtor’s  control  and  irrespective  of 
the  service  of  documents  on  the  other.  The  former  Article  20  covered  both  scenarios  but 
Article  19  A  more  concretely  addresses  them  in  paragraph  1  (a)  and  (b),  respectively.  The 
new provision also more clearly spells out its character as a minimum standard in that it does 
not establish requirements for exceptional review but makes the eligibility of a judgment for 
certification  as  a  European  enforcement  order  conditional  upon  the  existence  of  procedural 
rules in line with this Article. 

Article  21  has  been  modified  by  the  common  position  in  several  places.  Paragraph  1  now 
includes  a  sentence  that  unequivocally  establishes  the  principle  that  for  the  purposes  of 
enforcement  a  judgment  that  has  been  certified  as  a  European  enforcement  order  has  to  be 
treated exactly like a judgment delivered in the Member State of enforcement as suggested by 
the  European  Parliament  in  its  amendment  5,  albeit  in  a  different  Article.  Paragraph  2  (c) 
explicitly covers, in addition to translation, the transcription from Greek to Roman alphabet 
and  vice  versa  and  foresees  a  possibility,  rather  than  an  obligation,  for  Member  States  to 
indicate  a  language  or  languages  other  than  their  own  official  language(s)  which  they  can 
accept for the completion of the certificate. Paragraph 4 was deleted because of the opposition 
of the majority of Member States to such a rule. 

Article 22 was moderately reworded and rendered more precise in parts without change as to 
its substance. 

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Article  22  A  was  newly  inserted  taking  account  of  existing  obligations  of  certain  Member 
States  under  international  law  not  to  recognise  and  enforce  judgments  against  defendants 
domiciled or habitually resident in certain third countries under the circumstances set out in 
the  provision.  It  reproduces  Article  72  of  Regulation  (EC)  No  44/2001  with  textual 
adaptations. 

The  wording  of  Article  23  had  to  be  brought  into  line  with  the  amendments  relating  to  the 
content  and  the  terminology  relating,  in  particular,  to  extraordinary  challenges  to  the 
European  enforcement  order  certificate  (Article  8)  and  to  the  certified  judgment  (Article  19 
A).  Moreover,  whilst  retaining  the  discretionary  nature  of  the  power  of  the  courts  of  the 
Member  State  of  enforcement  pursuant  to  this  Article  in  general,  the  outright  stay  of 
enforcement, as opposed to its limitation, is only admissible as an exceptional measure.  

Article  25,  by  combining  the  English  (« approved  by  a  court »)  and  French  (« conclues 
devant le juge « ) language versions of Article 58 of Regulation (EC) No 44/2001, explicitly 
includes out-of-court settlements that have become enforceable by virtue of a court decision 
referred to as “homologation” in French. A new paragraph 2a had to be added, as in the case 
of Article 26, due to the conceptual difference between judgments on the one hand and court 
settlements  and  authentic  instruments  on  the  other  which  do  not  allow  a  reference  to  a 
“recognition” of the latter. 

Article  26  no  longer  establishes,  as  was  the  case  in  the  deleted  former  paragraph  3  of  the 
amended  Commission  proposal,  a  specific  requirement  for  the  certification  of  an  authentic 
instrument in the form of the debtor’s information about the direct enforceability throughout 
all Member States attested by his own signature. This was considered unnecessary and overly 
cumbersome by the Council. 

Article 26 A corresponds to Article 24 of the amended Commission proposal with a slightly 
altered wording but no change as to its substance. 

Article  27  and  Article  28  which  comprised  the  rules  relating  to  the  determination  of  the 
debtor’s  domicile  have  become  obsolete  as  a  result  of  the  replacement  of  the  concept  of 
“domicile”  by  the  notion  of  the  debtor’s  “address”  or  “business  premises”  throughout  the 
Regulation with the one exception of Article 5 (1) (c1) where, however, a specific reference to 
Article  59  of  Regulation  (EC)  no  44/2001  which  had  been  reproduced  in  Article  27  was 
added.  

Article 29 has been simplified and now ties the applicability of this Regulation to the date of 
the  issuing  of  the  judgment,  court  settlement  or  authentic  instrument  to  be  certified  as  a 
European enforcement order without the need for any further definitions.  

Articles  30  and  Article  31  on  the  relationship  with  Regulation  (EC)  No  44/2001  and 
Regulation  (EC)  No  1348/2000  have  been  simplified  and  reduced  to  their  essential  content, 
namely  that  this  Regulation  does  not  oblige  creditors  to  choose  the  European  enforcement 
order but leaves it to their discretion to resort to the exequatur procedure whenever he deems 
it  preferable  and  that  it  does  not  in  any  way  affect  the  applicability  of  Regulation  (EC)  No 
1348/2000 where a document has to be served from one Member state to another; where, in 
the latter case, the creditor wants to obtain a European enforcement order the requirements of 
this  Regulation  have  to  be  met  as  well.  The  more  detailed  rules  set  out  in  the  amended 
Commission proposal were not considered necessary by the Council. 

11 

 
 
  
 
Article 31 A follows the example of Article 22 of Council Regulation (EC) No 1206/2001 in 
obliging the Member States to communicate information relevant to the proper functioning of 
this Regulation  to  the Commission which will then make it publicly available. This  method 
allows  enhanced  flexibility  in  the  case  of  changes  compared  to  providing  the  same 
information in an annex to the Regulation as it does not require cumbersome amendments to 
the Regulation itself. 

Articles  32  and  33  have  been  slightly  modified  taking  account  of  the  applicability  of  co-
decision  procedure  which  necessitated  an  additional  reference  to  Article  8  of  Decision 
1999/468/EC. 

4- 

CONCLUSION 

The Commission accepts the common position in the light of the fact that it includes the key 
elements included in its initial proposal and in Parliament’s amendments as incorporated into 
its amended proposal. 

The  text  represents  a  fair  and  balanced  compromise  and  marks  a  major  step  ahead  in  the 
implementation of the principle of mutual recognition by allowing a considerable proportion 
of decisions on civil and commercial claims to circulate freely and without any intermediate 
measures  in  Member  States  other  than  the  one  where  a  judgment  has  been  delivered  as  a 
prerequisite for enforcement there.  

12