Collect Inkasso and Others (area of freedom, security and justice - Judgment) [2018] EUECJ C-289/17 (28 February 2018)

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(Reference for a preliminary ruling — Judicial cooperation in civil and commercial matters — Regulation (EC) No 805/2004 — European enforcement order for uncontested claims — Requirements for certification — Minimum standards for uncontested claims procedures — Rights of the debtor — No indication of the address of the institution to which a notice may be addressed contesting the claim or before which an appeal against the decision may be brought)

REQUEST for a preliminary ruling under Article 267 TFEU from the Tartu Maakohus (District Court, Tartu, Estonia), made by decision of 10 May 2017, received at the Court on 19 May 2017, in the proceedings

composed of A. Rosas, President of the Chamber, C. Toader (Rapporteur) and A. Prechal, Judges,

– the European Commission, by M. Wilderspin, M. Heller and E. Randvere, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 17(a) and Article 18(1)(b) of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15).

2 The request has been made in five sets of proceedings between the creditors Collect Inkasso OÜ, ITM Inkasso OÜ and Bigbank AS, three companies established under Estonian law, and the debtors Mr Rain Aint, Mr Lauri Palm, Mr Raiko Oikimus, Ms Egle Noor and Mr Artjom Konjarov concerning the certification as European Enforcement Orders of decisions ordering payment made against them in their absence.

‘(10) Where a court in a Member State has given judgment on an uncontested claim in the absence of participation of the debtor in the proceedings, the abolition of any checks in the Member State of enforcement is inextricably linked to and dependent upon the existence of a sufficient guarantee of observance of the rights of the defence.

(12) Minimum standards should be established for the proceedings leading to the judgment in order to ensure that the debtor is informed about the court action against him, the requirements for his active participation in the proceedings to contest the claim and the consequences of his non-participation in sufficient time and in such a way as to enable him to arrange for his defence.

(13) Due to differences between the Member States as regards the rules of civil procedure and especially those governing the service of documents, it is necessary to lay down a specific and detailed definition of those minimum standards. In particular, any method of service that is based on a legal fiction as regards the fulfilment of those minimum standards cannot be considered sufficient for the certification of a judgment as a European Enforcement Order.’

4 Article 3 of that regulation, entitled ‘Enforcement titles to be certified as a European Enforcement Order’, states, in paragraph 1(b):

‘This Regulation shall apply to judgments, court settlements and authentic instruments on uncontested claims.

(b) the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or

5 Under the heading ‘Requirements for certification as a European Enforcement Order’, Article 6(1) (c) of that regulation provides:

‘A judgment on an uncontested claim delivered in a Member State shall, upon application at any time to the court of origin, be certified as a European Enforcement Order if:

(c) the court proceedings in the Member State of origin met the requirements as set out in Chapter III where a claim is uncontested within the meaning of Article 3(1)(b) or (c); and

6 Chapter III of Regulation No 805/2004, entitled ‘Minimum standards for uncontested claims procedures’, includes Articles 12 to 19 of that regulation. Article 12 of that regulation, entitled ‘Scope of application of minimum standards’, provides, in paragraph 1 thereof:

‘A judgment on a claim that is uncontested within the meaning of Article 3(1)(b) or (c) can be certified as a European Enforcement Order only if the court proceedings in the Member State of origin met the procedural requirements as set out in this chapter.’

7 Under the heading ‘Provision to the debtor of due information about the procedural steps necessary to contest the claim’, Article 17(a) of Regulation No 805/2004 provides:

‘The following must have been clearly stated in or together with the document instituting the proceedings, the equivalent document or any summons to a court hearing:

(a) the procedural requirements for contesting the claim, including the time limit for contesting the claim in writing or the time for the court hearing, as applicable, the name and the address of the institution to which to respond or before which to appear, as applicable, and whether it is mandatory to be represented by a lawyer.’

8 Article 18 of that regulation, entitled ‘Cure of non-compliance with minimum standards’, provides, in paragraph 1 thereof:

‘If the proceedings in the Member State of origin did not meet the procedural requirements as set out in Articles 13 to 17, such non-compliance shall be cured and a judgment may be certified as a European Enforcement Order if:

(b) it was possible for the debtor to challenge the judgment by means of a full review and the debtor has been duly informed in or together with the judgment about the procedural requirements for such a challenge, including the name and address of the institution with which it must be lodged and, where applicable, the time limit for so doing; ...

The disputes in the main proceedings and the questions referred for a preliminary ruling

9 The Tartu Maakohus (District Court, Tartu, Estonia) was seised of five cases in which the facts are similar.

10 On 4 January 2008, Collect Inkasso filed three applications for simplified order for payment procedure before that court against Mr Aint, Mr Palm and Mr Oikimus to recover three different debts.

11 The applications for simplified order for payment procedure, the demands for payment addressed to the debtors by that court and the objection forms were served on Mr Aint, with the assistance of the police, by 11 March 2009 at the latest, on Mr Palm, by personal service with signed confirmation, on 16 February 2008 and on Mr Oikimus, by personal service with signed confirmation on his sister, on 30 January 2008, respectively A supplement to the original payment demand, ordered by that court, was served on Mr Aint by personal service with signed confirmation on 25 May 2009.

12 Since the debtors did not file any objections, the Tartu Maakohus (District Court, Tartu) has issued a number of orders against them for payment of the claims together with default interest and/or the costs of the proceedings.

13 Those orders were served on Mr Aint, Mr Palm and Mr Oikimus respectively by personal service with either their own signed confirmation or that of a member of their family, with the exception of one of the orders, issued against Mr Palm, dating from 30 March 2009, which was not served upon him. Accordingly, apart from the latter order, the orders have acquired the force of res judicata.

14 On 7 June 2016, Collect Inkasso made three applications to the Tartu Maakohus (District Court, Tartu) for certification of the orders issued as European Enforcement Orders.

15 By orders of 16 August 2016, the Tartu Maakohus (District Court, Tartu) dismissed those applications for certification, finding that the debtors had not been informed, either in the documents instituting the proceedings or in the orders issued against them, of the address of the court to which to respond or before which to appear or, where appropriate, before which they could challenge those orders. Consequently, the Tartu Maakohus (District Court, Tartu) refused to issue the European Enforcement Order certificates because of the failure to comply with the conditions laid down in Article 6(1)(c), Article 17(a) and Article 18 of Regulation No 805/2004. As regards the order of 30 March 2009 issued against Mr Palm, that court also found that it had not been served on the debtor in accordance with the requirements laid down in Articles 13 and 14 of that regulation.

16 On 5 October 2016, Collect Inkasso filed an objection before the same court to the orders of 16 August 2016 in order to obtain their annulment and the issue of the European Enforcement Orders requested.

17 On 15 August 2008, ITM Inkasso filed an application for a simplified order for payment procedure with the Tartu Maakohus (District Court, Tartu) against Ms Noor for recovery of a debt.

18 After having sent the debtor a demand for payment, the Tartu Maakohus (District Court, Tartu) served on her, on 20 December 2008, by personal service with signed confirmation, the application for simplified order for payment procedure, the demand for payment and the objection form.

19 In the absence of objection, on 21 April 2009, that court issued an order for payment of the claim and of the costs of the proceedings. That order was served on the debtor by personal service with signed confirmation on 4 May 2009, thus acquiring the force of res judicata.

20 On 21 October 2016, ITM Inkasso brought an application for certification of that order as a European Enforcement Order before the referring court.

21 On 4 September 2007, Bigbank filed an application for a simplified order for payment procedure with the Tartu Maakohus (District Court, Tartu) against Mr Konjarov for recovery of a debt.

22 After having sent the debtor a demand for payment, the Tartu Maakohus (District Court, Tartu) served on him, on 20 November 2008 by personal service with his mother’s signed confirmation, the application for simplified order for payment procedure, the demand for payment and the objection form.

23 In the absence of any objection, on 6 March 2009 that court issued an order for payment of the claim and of the costs of the proceedings. That order was served on the debtor by personal service with his mother’s signed confirmation on 11 March 2009, thus acquiring the force of res judicata.

24 On 2 January 2017, Bigbank brought an application before the referring court for certification of that order as a European Enforcement Order.

25 In order to be able to rule on the objections raised by Collect Inkasso and on the applications for certification introduced by ITM Inkasso and Bigbank, the referring court considers it necessary to clarify the scope of the minimum requirements laid down in Article 17(a) and Article 18(1)(b) of Regulation No 805/2004, in particular as regards the reference to the address of the institution to which to respond or before which to appear or, where appropriate, before which an appeal may be lodged against a court order for payment.

26 In that regard, the referring court states that the documents sent to the debtors in question in the main proceedings, namely applications for simplified order for payment procedure, the demands for payment, the objection forms and the orders for payment did not state that address. That court adds that the other procedural requirements, including the indication of the name of the institution, have been met.

27 According to that court, although it follows from the wording of Article 17 of Regulation No 805/2004 that all the elements set out in that article should be communicated to the debtor, at the same time it is likely that a reasonable person would be able to identify the address of an institution, in this case that of the referring court, when he knows the name of that institution, since that information is accessible to the public.

28 In those circumstances, the Tartu Maakohus (District Court, Tartu) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Must Article 17(a) of Regulation ... No 805/2004 ... be interpreted as meaning that all the information listed in [that article] must be clearly stated in or together with the document instituting the proceedings, the equivalent document or any summons to a court hearing? Specifically, is certification of a judgment as a European Enforcement Order under Articles 3(1)(b), 6(1)(c) and 17(a) of the regulation excluded if the debtor has not been notified of the address of the institution to which to respond but he has been notified of all the other information listed in Article 17(a)?

2. Must Article 18(1)(b) of Regulation ... No 805/2004 … be interpreted as meaning that, if the proceedings in the Member State of origin do not meet the procedural requirements as set out in Article 17 of Regulation No 805/2004, for such non-compliance to be cured all the information listed in Article 18(1)(b) [thereof] must have been notified to the debtor in due time in or together with the judgment? Specifically, is the certification of the decision as a European Enforcement Order excluded if the debtor has not been notified of the address of the institution with which a challenge must be lodged but he has been notified of all the other information listed in Article 18(1)(b)?’

29 By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 17(a) and Article 18(1)(b) of Regulation No 805/2004 must be interpreted as meaning that a court decision issued without the debtor having been informed of the address of the court to which to respond or before which to appear, or, as appropriate, with which an appeal may be lodged against that decision, may be certified as a European Enforcement Order.

30 The referring court is seised of five cases concerning certification of orders for payment as European Enforcement Orders. While these cases are at different procedural stages, they are all characterised by the fact that the document instituting the proceedings and the orders issued following simplified procedures for orders for payment, while served on the debtors, do not mention the address of the court having jurisdiction to hear those proceedings or any appeal against those orders. The other procedural requirements, including, in particular, the indication of the name of the institution, have been satisfied.

31 According to the order for reference, it is common ground that the debtors in question in the main proceedings remained inactive during the simplified procedures for orders for payment, so that the debts held against them fall within the concept of ‘uncontested claim’, within the meaning of Article 3(1)(b) of Regulation No 805/2004 and, as such, justify the issue of the European Enforcement Orders requested.

32 As is clear from Article 6 of that regulation, a judgment on an uncontested claim delivered in a Member State, upon application at any time to the court of origin, is to be certified as a European Enforcement Order if certain conditions are satisfied. In the case of an uncontested claim within the meaning of Article 3(1)(b) of that regulation, the condition laid down in Article 6(1)(c) of Regulation No 805/2004 requires that the court proceedings in the Member State of origin have met certain minimum procedural standards laid down in Articles 12 to 19 of that regulation, set out in Chapter III thereof.

33 In that regard, Article 17(a) of Regulation No 805/2004 requires certain information, including the name and address of the institution to which to respond or, if applicable, before which to appear, to be clear from the document instituting the proceedings, the equivalent document and any summons to a court hearing or the accompanying documents.

34 In order to remedy any non-compliance with the minimum standards applicable to procedures relating to uncontested claims, Article 18(1)(b) of Regulation No 805/2004 requires that the debtor must have the possibility of challenging a judgment concerning a claim by means of a full review and must have been duly informed in or together with the judgment about the procedural requirements for such a challenge, including the name and address of the institution with which it must be lodged.

35 It therefore follows from the clear wording of Article 17(a) and Article 18(1)(b) of Regulation No 805/2004, interpretation of which is requested by the referring court, that the indication to the debtor of the address of the institution concerned is mandatory.

36 The minimum standards set out in Chapter III of Regulation No 805/2004 express the EU legislature’s intention to ensure that procedures leading to the adoption of judgments concerning uncontested debts offer adequate guarantees of respect for the rights of the defence in the Member State of origin (see, by analogy, judgment of 9 March 2017, Zulfikarpašić, C‑484/15, EU:C:2017:199, paragraph 48 and the case-law cited), taking account of the fact that, in principle, there is no review thereof in the Member State of enforcement.

37 Indeed, as follows from the case-law of the Court, those minimum standards, which include indication of the address of the institution concerned, seek to ensure, in accordance with recital 12 of Regulation No 805/2004, that the debtor is informed, firstly, about the court action against him, the requirements for his active participation in the proceedings to contest the claim at issue and, secondly, the consequences of his non-participation in sufficient time and in such a way as to enable him to arrange for his defence. In the specific case of a decision delivered in default, for the purposes of Article 3(1)(b) of Regulation No 805/2004, those minimum procedural standards thus seek to ensure the existence of adequate guarantees of respect for the rights of the defence (see, to that effect, judgment of 16 June 2016, Pebros Servizi, C‑511/14, EU:C:2016:448, paragraph 44).

38 Finally, it should be recalled that, as is clear from Article 17(a) and Article 18(1)(b) of Regulation No 805/2004, the information required in those provisions may be provided to the defendant not only via procedural documents or judicial decision, but also via the accompanying documents. In that regard, according to the Estonian Government, where the courts of that Member State serve demands for payment on debtors, they usually include a covering letter written on headed paper, which gives all the details of the court concerned. However, although the debtor can, in principle, effectively be made aware of the address of the competent court in that way, the fact remains, however, that, in the present case, the referring court has found that the relevant address was not sent to the debtors in question in the main proceedings.

39 In the light of all the foregoing considerations, the answer to the questions referred is that Article 17(a) and Article 18(1)(b) of Regulation No 805/2004 must be interpreted as meaning that a court judgment delivered without the debtor having been informed of the address of the court to which to respond or before which to appear, or, as appropriate, before which an appeal can be lodged against such a decision, cannot be certified as a European Enforcement Order.

40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 17(a) and Article 18(1)(b) of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims must be interpreted as meaning that a court judgment delivered without the debtor having been informed of the address of the court to which to respond or before which to appear, or, as appropriate, before which an appeal can be lodged against such a decision, cannot be certified as a European Enforcement Order.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Collect Inkasso and Others (area of freedom, security and justice - Judgment) [2018] EUECJ C-289/17 (28 February 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C28917.html Cite as: EU:C:2018:133, [2018] EUECJ C-289/17, ECLI:EU:C:2018:133

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