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 order for payment procedure
Date: 2006-07-04
Institutions: European Commission
Subjects: civil procedure, civil proceedings, claim, drafting of EU law, injunction

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.7.2006 
COM(2006) 374 final 

2004/0055 (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 order for payment procedure 

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2004/0055 (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 order for payment procedure 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2004)173 final – 2004/0055 (COD): 

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

19.03.2004. 

09.02.2005. 

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

13.12.2005. 

Date of transmission of the amended proposal: 

Date of adoption of the common position: 

08.02.2006. 

30.06.2006 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  swift  recovery  of  outstanding  debts  whose  justification  is  not  called  into  question  is  of 
paramount  importance  for  economic  operators  in  the  European  Union  and  for  the  proper 
functioning  of  the  internal  market.  A  legal  framework  that  does  not  guarantee  a  creditor 
access to the rapid settlement of uncontested claims may afford bad debtors a certain degree 
of  impunity  and  thus  provide  an  incentive  to  withhold  payments  intentionally  to  their  own 
advantage.  Late  payments  are  a  major  reason  for  insolvency  threatening  the  survival  of 
businesses, particularly small and medium-sized ones, and resulting in numerous job losses. 

The  need  to  engage  in  lengthy,  cumbersome  and  costly  court  proceedings  even  for  the 
collection  of  uncontested  debts  inevitably  exacerbates  those  detrimental  economic  effects. 
This  situation  implies  a  multi-faceted  challenge  for  the  Member  States’  judicial  systems.  It 
has become essential to distinguish the truly contentious cases at the earliest possible stage of 
the  proceedings  from  those  where  no  real  legal  dispute  exists.  Such  a  differentiation  is  a 
necessary,  albeit  not  sufficient  condition  to  make  efficient  use  of  the  limited  resources 
allocated  to  the  courts.  It  enables  them  to  concentrate  on  the  controversial  litigation  and  to 
adjudicate it within a reasonable period of time. This desired result can be achieved, however, 
only if a speedy and efficient procedure for uncontested claims is available. 

The objective of the proposal is to establish a uniform rapid and efficient mechanism for the 
recovery of uncontested money claims throughout the European Union. 

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3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

General comment 

The Council’s common position was adopted by unanimity. It 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  limits  the  scope  of  application  to  cross-border  cases;  a  cross-border 
case is defined as a case is one in which at least one of the parties is domiciled or habitually 
resident in a Member State other than the Member State of the seized court;  

- several changes have been made to the text to enable electronic and automated processing of 
the application (see Articles 7(5), 7(6), 8, 16(4) and 16(5)); 

-  the  initial  two-step  order  for  payment  procedure  has  been  replaced  by  a  single  phase 
procedure. However, additional procedural guarantees have been inserted in the text to protect 
the rights of the parties to the proceedings (see in particular Articles 8, 10, 11 and 12). Thus, 
the  court  upon  receiving  an  application  will  examine  on  the  basis  of  the  application  form 
whether the admissibility criteria are met and whether the claim appears to be founded. Based 
on that examination, the court could either reject the application or deliver a European order 
for payment.  

- differently from the original proposal, the Regulation now foresees a possibility for issuing a 
European order for payment for a part of the claim in case the claimant agrees.  

- the Regulation has clarified the deadlines for different procedural phases. In order to assure 
consistency,  the  Regulation  makes  use  of  a  uniform  30-day  deadline  for  the  delivery  of  the 
European order for payment and for sending the statement of opposition.  

-  differently  from  the  original  proposal,  the  Regulation  now  includes  provisions  on 
enforcement (see Articles 21, 22 and 23). The abolition of exequatur has been included in the 
text  of  the  Regulation  itself,  accompanied  by  the  minimum  standards  already  foreseen  in 
Regulation 805/2004 creating a European enforcement order for uncontested claims; 

- the common position includes a detailed review clause. 

Other amendments are of a more formal nature and have been made to render the text easier 
to read. 

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  objective  of  simplifying,  speeding  up  and  reducing  the  costs  of 
litigation concerning uncontested pecuniary claims. 

3.2. 

Outcome of Parliament´s amendments 

All amendments of Parliament were included in the amended proposal of the Commission and 
also in the common position. In some cases, however, the discussions in the Council and the 
revision  of  the  text  by  Legal/Linguistic  Experts  showed  the  need  for  certain  technical 

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clarifications. In order to correspond to the text of the Regulation, the recitals and the standard 
forms have been adapted and updated.  

There is one case of divergence between the amended proposal and the common position in 
Article 3(1): 

- Article 3(1) of the amended proposal: "For the purposes of this Regulation, a cross-border 
case is one in which at least one of the parties is domiciled or habitually resident in a State 
other than the Member State of the court seized." 

-  Article  3(1)  of  the  common  position:  "For  the  purposes  of  this  Regulation,  a  cross-border 
case is one in which at least one of the parties is domiciled or habitually resident in a Member 
State other than the Member State of the court seized." 

The Commission continues to regret the limitation to cases where both parties are domiciled 
in a Member State and has made a declaration accordingly. 

The  common  position  of  the  Council  has  been  negotiated  together  with  the  European 
Parliament in view of reaching a first-reading agreement. Therefore the European Parliament 
should not request any amendments of the common position. 

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 Parliament’s amendments as incorporated into its 
amended proposal. 

5. 

STATEMENT BY THE COMMISSION 

At the occasion of the adoption of the common position, the Commission made the following 
declaration: 

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DECLARATION OF THE COMMISSION 

The Commission declares that the definition of the term "cross-border case" in the context of 
this Regulation is not an interpretation of the obligation foreseen in Article 65 of the Treaty to 
limit the action of the Community to matters having cross-border implications, but only one 
among other possibilities to limit the scope of application of this Regulation in the context of 
Article 65. 

It  is  not  necessary  to  limit  the  scope  of  application  by  reference  to  a  general  definition  of 
"cross-border" in the instruments relating to private international law. 

The necessity or interest to resort to a general definition of "cross-border" in other instruments 
which are not linked to private international law such as the proposed directive on mediation 
the character of which is different from this Regulation should be analysed carefully case by 
case, taking into account the objectives of each instrument. 

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