(8) The European order for payment procedure should not replace or harmonise the existing mechanisms for the recovery of uncontested debts under national law but constitute an additional option for the creditor who remains free to resort to a procedure provided by domestic law..

(8) The European order for payment procedure should create, both for citizens in the EU and for small and medium-sized undertakings, a secure legal framework which will facilitate the taking of legal action in cross-border cases and so also place cross-border business on a sound footing. At the same time, the European order for payment procedure should also serve as a model for national legal systems, particularly where no such efficient procedures yet exist.

Justification

This recital makes the point that the present draft Regulation serves two main purposes. On the one hand, a reliable legal framework should be created for cross-border transactions. On the other hand the Regulation – outside its immediate scope of application – will serve also as a challenge and as a model for the Member States of the European Union to provide within their national legal system a fast and efficient means of enabling citizens and other economic actors to enforce uncontested claims.

(10) The procedure should be based, to the largest extent possible, on the use of standard forms in the communication between the court and the parties in order to facilitate its administration and enable the use of automatic data processing.

(10) The procedure should be based, to the largest extent possible, on the use of standard forms in the communication between the court and the parties in order to facilitate its administration, and the Member States should encourage the use of automatic data processing.

Justification

In some Member States the procedure for issuing payment orders is already computerised, which makes it faster. Member States should encourage the use of automatic data processing, which will be of great help in making the procedure more efficient.

(10a) The European order for payment should be issued at the earliest opportunity; the courts should aim at completing the whole procedure within three months.

Justification

The main advantage of the European order for payment procedure is precisely that it should be more efficient and faster than an ordinary civil procedure. Whether it is a one-stage or two-stage procedure, Member States should endeavour to ensure that the payment order is issued in the shortest possible time, and the entire procedure should not take more than three months. The experience of Member States is that the procedure is normally concluded in two to three months.

Article -1

Objective

1. The purpose of this Regulation is to create, in respect of cross-border cases, a European order for payment procedure to permit the free circulation throughout the Member States of an order issued in accordance with this Regulation, without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement.

2. The European order for payment procedure shall be without prejudice to national payment order procedures.

3. Notwithstanding paragraphs 1 and 2, Member States may adopt the European order for payment for use in purely national as well as cross-border cases.

4. Member States which intend to avail themselves of the option specified in paragraph 3 shall notify the Commission to that effect. The Commission shall publish and update the information provided by the Member States in accordance with Article 16.

5. Private parties may opt to apply the European order for payment procedure to cases other than cross-border cases, if they have expressly agreed to do so.

Justification

This amendment sets out a possible compromise.

1. This Regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters..

1. This Regulation shall apply in cross-border cases to civil and commercial matters, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

Justification

This takes account of the European Parliament's resolution P5_TA(2004)0097, which calls for the European order for payment procedure to be confined to cross-border cases.

Article 1a

Cross-border cases

For the purposes of this Regulation, a cross-border case is one in which the creditor and the debtor are domiciled or habitually resident, at the moment when the request for an order is brought before the competent court, in different Member States.

The domicile shall be determined in accordance with Articles 59 and 60 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The relevant moment at which to determine whether there is a cross-border case is when the application for an order for payment is submitted to the court that has jurisdiction in accordance with this Regulation.

Justification

The addition of this provision follows the rewording of Article 1 (1) to specify that the regulation applies only to cross-border cases.

1. The European order for payment procedure is hereby established for the collection of uncontested pecuniary claims for a specific amount that have fallen due at the time when the application for a European order for payment is submitted.

1. The European order for payment procedure is hereby established for the collection of uncontested pecuniary claims for a specific amount that are liquidated and payable at the time when the application for a European order for payment is submitted

Justification

The qualification 'that have fallen due' is too restrictive. If interpreted literally, it could result in a decision not to issue an order for payment if the deferred payment was only a partial default, further payments being due. If such payments were spread over the medium or long term, the creditor would have to wait until the final instalment had fallen due. Cases also quite often arise in which the debtor specifically states in advance that he does not intend to fulfil his obligations.

1. An application for a European order for payment shall be made using the standard form in Annex 1.

1. An application for a European order for payment shall be made using the standard form in Annex 1 which shall be available in all official languages of the Community.

Justification

Technical clarification

(a) the names and addresses of the parties and the court to which the application is made,

(a) the names and addresses of the parties, and where applicable, of their representatives and of the authority to which the application is made,

Justification

Seeks to take account of concerns raised by several Member States.

Since, in some Member States of the Union, peripheral authorities exist which have powers analogous to those of the district courts, it would be preferable to replace the term "court" by the term "authority".

(d) the cause of action, including a brief description of the circumstances invoked as the basis of the claim and, where applicable, of the demanded interest;

(d) the cause of action, including a brief description of the arguments forming the basis of the claim and, where applicable, of the demanded interest;

Justification

Seeks to take account of concerns raised by several Member States.

(e) the brief description of at least one means of evidence that could be adduced in ordinary civil proceedings to support the claim;

deleted

Justification

Seeks to take account of concerns raised by several Member States.

(ea) a brief description of the reasons for the court's international jurisdiction if the defendant is not domiciled in the Member State of the court to which the application is made, and

Justification

Seeks to take account of concerns raised by several Member States.

3. The application shall be signed by the claimant or his representative manually or in the form of an advanced electronic signature within the meaning of Article 2 (2) of Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures.

3. The application must be signed by the claimant or his representative and submitted using any technical means accepted by the law of the Member State or origin and available to the court of origin. Where the application is submitted in electronic form, it shall be signed in accordance with Article 2 (2) of Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures. The signature shall be recognised in the Member State of origin and may not be made subject to additional requirements.

Justification

Seeks to take account of concerns raised by several Member States.

2. Where the court considers a rejection of the application due to a failure to fulfil the requirements of Article 3 it may give the claimant the opportunity to complete or rectify the application.

2. The court may give the claimant the opportunity to complete or rectify the application in respect of the information listed in Article 3 using the standard form contained in the Annex.

Justification

This amendment is designed to deal with several Member States' concerns.

1. The court shall reject the application in whole if the requirements laid down in Article 4 are not fulfilled for the claim at issue or parts thereof.

1. The court shall reject the application in whole or in part if the requirements laid down in Article 4(1) are not fulfilled for the claim at issue or parts thereof. The court shall notify the claimant of the rejection.

Justification

This amendment is designed to deal with several Member States' concerns and introduce more clarity.

3. The rejection shall not prevent the claimant from initiating ordinary court proceedings with regard to the same claim.

3. In the event of rejection the claimant may not submit a new application for a European order for payment with regard to the same claim. However, this shall not prevent the claimant from initiating ordinary court proceedings.

Justification

This amendment is designed to deal with several Member States' concerns and introduce more clarity.

European payment notification

deleted

1. If the requirements laid down in Article 4 are fulfilled the court shall issue a European payment notification using the standard form in Annex 2.

2. The European payment notification shall be served on the defendant. A method of service without proof of receipt by the defendant personally is not admissible if the defendant’s address is not known with certainty.

3. In the notification the defendant shall be advised of his options to

(a) pay the claimed amount including the claimed interest and the claimed costs to the claimant and submit a statement informing about the payment; or

(b) submit a statement of defence to the claim or parts thereof which has to reach the court within three weeks starting from the date of service of the European payment notification on him in accordance with the law of the Member State in which service is effected.

4. In the notification the defendant shall be informed that

(a) the court has not examined the justification of the claim before issuing the notification

(b) the court will deliver an enforceable decision unless it has received a statement of defence or a statement informing the court about the payment of the claim from the defendant within the time limit specified in paragraph 3.

5. For the purpose of the interruption of the statute of limitations, the European payment notification shall be considered equivalent to a writ of summons in ordinary civil proceedings.

Justification

In the interest of a simplified EPO procedure there is no need for a defendant to have two opportunities to defend a claim. In most cases there will not be a response from the defendant and in any case the defendant may stop the procedure.

1. In the absence of a statement of defence or a statement informing about the payment lodged within the time limit laid down in Article 6 (3) the court shall deliver a European order for payment of its own motion using the standard form in Annex 3.

1. If the requirements laid down in Article 4 are fulfilled the court shall issue a European order for payment by forwarding to the defendant Annex 1 together with a notification of the order (Annex 2).

Justification

This will reduce considerably the burden on the courts. There is no need for the court to complete a new form when the claimant will have provided all the necessary information in Annex 1.

2a. Service by electronic means such as fax or email, with proof and date of receipt signed and returned by the defendant, shall be admissible.

Postal service with proof and date of receipt signed and returned by the defendant shall be admissible.

Justification

This amendment will facilitate a simple automated procedure. The use of postal services is in line with the EEO regulation.

3. In the European order for payment the defendant shall be informed that he can lodge a statement of opposition to the European order for payment which has to reach the court that has issued the order within three weeks starting from the date of service of the European order for payment on him in accordance with the law of the Member State in which service is effected.

3. In the European order for payment the defendant shall be informed that he has the right to lodge a statement of opposition which has to reach the court of origin within one month and that, in that case, the procedure will continue before the competent courts from the date of service or notification.

Justification

These amendments are connected. A one-step procedure is simpler and quicker. In a one-step procedure the court has to issue a payment order immediately. There is no need to wait until the time limit for lodging a statement of defence has expired. In practical terms, the debtor receives a payment order (it is served on him) and is informed that he has one month in which to lodge a state of opposition.

2a. The European order for payment shall be recognised and enforced in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition.

Justification

The proposed amendment provides that a European order for payment issued in one Member State should be enforceable in another Member State without the need for a decision declaring it enforceable in the other Member State.

1. The defendant may lodge a statement of opposition to the European order for payment by making use of the standard form attached to Annex 3 which shall be supplied to him together with the European order for payment or otherwise.

1. The defendant may lodge a statement of opposition to the European order for payment by making use of the standard form attached to Annex 3 which shall be available in all official languages of the Community and supplied to him together with the European order for payment or otherwise.

Justification

Technical clarification.

3. A statement of defence lodged after the expiry of the time limit laid down in Article 6 (3) but within the time limit specified in Article 9 (3) shall produce the same effects as entering a statement of opposition.

deleted

Justification

In line with the one step procedure, for consistency paragraph 3 of Article 12 should be deleted.

All procedural issues not specifically dealt with in this Regulation shall be governed by the law of the Member State in which the European order for payment proceedings take place.

All procedural issues not specifically dealt with in this Regulation shall be governed by the law of the Member State in which the European order for payment proceedings take place. However, in taking advantage of this provision Member States shall not seek to introduce further procedural or evidential requirements which would have the effect of undermining the European order for payment.

Justification

Seeks to ensure effective operation of the European Payment Order procedure.

Article 18a

Report

Five years after the entry into force of this Regulation, the Commission shall present to the European Parliament and the Council a detailed report on the operation of the European order for payment procedure. That report shall contain an economic assessment of the procedure as it has operated and an extended impact assessment for each Member State, including a cost-benefit analysis of the possible extension to purely national cases. In the event that the report can demonstrate that the procedure is simple, efficient and cost-effective, and that it offers effective redress, the Commission may present a proposal to the European Parliament and the Council for a measure facilitating the use of the European order for payment procedure in Member States for national cases and proposing such amendments to this Regulation as are necessary to that end having regard in particular to the experience gained in using the procedure for cross-border cases and those Member States using the procedure for national cases.

(8) The European order for payment procedure should not replace or harmonise the existing mechanisms for the recovery of uncontested debts under national law but constitute an additional option for the creditor who remains free to resort to a procedure provided by domestic law.

(8) The European order for payment procedure will create for natural and legal persons throughout the EU a secure legal framework providing a simplified procedure in cross-border cases to assist cross-border business. In this way, the European order for payment procedure should also serve as a model for national legal systems, in particular where such efficient procedures do not yet exist.

Justification

This recital clarifies that the present draft regulation serves mainly two purposes. On the one hand, a reliable legal framework should be created for cross-border transactions. It can be assumed that even today citizens and small and medium-sized enterprises avoid such transactions because of ignorance of national legal systems and concerns over their ability to enforce their claims effectively in the event of problems occurring.

On the other hand the Regulation – outside its immediate scope of application – will serve also as a model for the Member States of the European Union, particularly those which do not have an order for payment system, to provide within their national legal system a procedure which will be of benefit to citizens and companies in providing a fast and efficient mechanism to enforce uncontested claims.

(10) The procedure should be based, to the largest extent possible, on the use of standard forms in the communication between the court and the parties in order to facilitate its administration and enable the use of automatic data processing.

(10) The procedure should be based, to the largest extent possible, on the use of standard forms in the communication between the court and the parties in order to facilitate its administration, and the Member States should encourage the use of automatic data processing.

Justification

In some Member States the procedure for issuing payment orders is already computerised, which makes it faster. Member States should encourage the use of automatic data processing, which will be of great help in making the procedure more efficient.

(10a) The European order for payment should be issued at the earliest opportunity; the courts should aim at completing the whole procedure within three months.

Justification

The main advantage of the European order for payment procedure is precisely that it should be more efficient and faster than an ordinary civil procedure. Whether it is a one-stage or two-stage procedure, Member States should endeavour to ensure that the payment order is issued in the shortest possible time, and the entire procedure should not take more than three months. The experience of Member States is that the procedure is normally concluded in two to three months.

1. This Regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

1. This Regulation shall apply in cross-border cases to civil and commercial matters, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

Justification

The scope of the Regulation should be limited to cross-border disputes. In this way a noticeable added value is created for European citizens and small and medium-sized enterprises in Member States. An appropriate legal framework is created for their business activities in the European internal market when enforcing uncontested claims. At the same time, we avoid creating insecurity and uncertainty in national procedures by the creation of an additional parallel national system for purely internal disputes. Consequent inefficiencies and unnecessary costs are also avoided. Where there are no existing efficient national procedures, however, this Regulation can serve as a model for the adoption of national procedures. Thus the legal base of Article 61(c) in connection with Article 65 of EU-Treaty is used extensively and safeguarded.

(e) the brief description of at least one means of evidence that could be adduced in ordinary civil proceedings to support the claim.

deleted

Justification

For the sake of efficiency, the use of automatic data processing is required, which means that it would be sufficient, particularly in the case of non-contentious claims, for the creditor merely to state the type of evidence he has. The court would then examine the application and if it met all the requirements under the Regulation the court would not examine the evidence itself. The debtor would always be able to disagree with the procedure.

2a. The European order for payment shall be recognised and enforced in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition.

Justification

The proposed amendment provides that a European order for payment issued in one Member State should be enforceable in another Member State without the need for a decision declaring it enforceable in the other Member State.

Article 18a

Review

Five years after the entry into force of this Regulation, the Commission shall present a report to the European Parliament and the Council..

Justification

After five years it will be clear from practical experience whether the Regulation should also apply to cases where the parties are domiciled in the same Member State. In that case the Commission should draw up an amendment to the effect that it would apply to national cases as well as cross-border cases.