Глобальный кодекс принудительного исполнения

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in force...» This fundamental right can only be effective and concrete when decisions given by the national organs are enforced within a reasonable period of time.

4. European Union

Acting in the context of the European Union, the Commission published an EU Justice Scoreboard on 27 March 2013. Here justice is regarded as a development factor and it is stated that an efficient legal system is essential for ensuring the effectiveness of laws in the economic domain and for protecting consumers and the environment. In the European Union, the performance of the justice system is of fundamental importance: creditors must be able to obtain recognition of their rights and a judgment against their debtors by means of procedures that are simple, fast, relatively uniform, and above all they must be able to benefit from the free circulation and effective enforcement of their enforceable title in all of the Union’s member states. Indeed it is possible to find case law of the «Court of First Instance» (e.g. TPI, 19 March 1997, case T-73/95, Mentos Isidoro M. Oliveira) and say that there is a degree of protection of the right of enforcement in European Union law. Regulation (EU) No 655/2014 «establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters» was signed by the Presidents of the Council of the European Union and the European Parliament on 15 May 2015 (published in the OJ of 27 June 2014). The establishment of this procedure, which aims at simplifying and speeding up the recovery of cross-border claims, was envisaged by the European institutions as long as 15 years ago. It is a landmark text in the unification of the law, and allows the creditor to provisionally immobilize funds belonging to his debtor and held in a bank account in the same way throughout the European Union, and must facilitate the recovery of unpaid debts and consolidate the European space of justice.

5. Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada (adopted on 10 April 1998, JO Ohada No 6, 1 July 1998) provides in Article 28 the following by way of general arrangements: «In the absence of voluntary execution, any creditor may, regardless of the nature of his claim and under the conditions provided for in this Uniform Act, compel the defaulting debtor to honour his obligations towards him or take preventive measures to secure his rights». Thus here too the right of enforcement is confirmed.

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Article 2. Тhе debtor is answerable for his debts on all his goods

The debtor is answerable for his debts on all his goods wherever these are to be found.

National laws can require the debtor to declare the extent of his estate. They must provide for the applicable sanctions.

The debtor who deliberately organizes his insolvency makes himself liable.

Explanatory remarks

1. European Union

Work has been carried out in the context of the European Union, aimed at establishing «transparency of assets». In this connection the Green Paper of 6 March 2008 on effective enforcement of judgments in the European Union: The Transparency of Debtors’ Assets (COM (2008) 128 Final) stresses the need of the creditor to be able to localize the assets of the debtor in order to improve the recovery of cross-border claims. The Resolution of the European Parliament of 10 May 2011 contains recommendations to the Commission on proposed measures regarding the transparency of debtors’ assets (2009/2169 (INI)).

Regulation No 655/2014 of 15 May 2014 «establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters» sets out measures to secure the provision of information to the creditor: Article 14 allows a creditor who is the holder of an enforceable title to request the court to which he has applied for a preservation order (conservatory seizure) to request the authority responsible for obtaining information in the Member State where the title must be enforced, in order obtain the information necessary for identifying the bank or banks and account or accounts of the debtor.

2. Council of Europe

To make enforcement possible Recommendation Rec (2003) 17 of 9 September 2003 of the Council of Europe provides that «defendants should provide up-to-date information on their income, assets and on other relevant matters» (guiding principle III-1-d).

3. Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998 provides in Article 50

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that «Seizures may be carried out on all property belonging to the debtor even where the said property is held by a third party, save where it has been declared inalienable by the national law of each Contracting State. They may also be carried out on conditional claims, future debts or successive execution debts». With respect to preservation orders (or sequestration) the Uniform Act specifies in Article 56 that «Sequestration may be carried out on all the tangible or intangible personal property belonging to the debtor, It shall render such property inalienable».

Article 3. Enforceable titles

All court decisions with power of enforceability as well as those documents to which the law grants the power of enforceability, in particular, authentic instruments, arbitral decisions, and judicial transactions are regarded as enforceable titles.

Explanatory remarks

1. Council of Europe

Recommendation Rec (2003) 17 of 9 September 2003 states: «2. Enforcement procedures should: b. prescribe an exhaustive definition and listing of enforceable titles and how they become effective».

In the Guidelines for a better implementation of the existing Council of Europe’s recommendation on enforcement, adopted by the CEPEJ at its 14th plenary meeting on 9–10 December 2009, the following is clearly stated:

«3. Enforceable Title – Definition and Form of the Title

23.National legislative framework should contain a clear definition of what is considered an enforceable title and the conditions of its enforceability.

24.Enforcement titles should be drafted in a clear and comprehensible way leaving no opportunity for misinterpretation».

2. European Union

In the field of judicial cooperation in civil matters (Art. 81 of the Treaty on the Functioning of the European Union), there are various European Regulations which have as their object to make it possible to enforce an enforceable title in a different Member State than that in which the title was obtained. While organizing the cross-border circulation of titles obtained in accordance with the national legislation of the originating Member State, these regulations are

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not only applicable to court decisions, they also govern the recognition and enforcement of «judicial transactions» and «authentic instruments». Thus for example there is Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, known as «Regulation Brussels I» (OJ L 012, 16/01/2001 P.0001–0023), which effective as of 10 January 2015 has been replaced by «Regulation Brussels I Recast» (EU) 1215-2012 of 12 December 2012, which applies to all decisions adopted by a court in a Member State, to judicial transactions approved by a jurisdiction, and to authentic instruments. EU Regulation No 805/2004 of the European Parliament and the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ L 143, 30/04/2004 P.0015–0039) authorises the circulation of the enforceable title in the requested State without complying with further formalities.

3. Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998 also specifies in its Article 33 that «The following shall constitute writs of execution (enforceable titles) (1) court decisions bearing an executory clause and decisions enforceable immediately; (2) foreign writs and decisions as well as arbitration awards declared enforceable by a court decision not liable to any remedy at law suspending execution, of the State in which the writ is invoked;

(3) conciliation reports signed by the judge and the parties; (4) notarial deeds bearing an executory clause; (5) decisions to which the national law of each Contracting State recognizes as a court decision».

Article 4. The immediately enforceable nature

The beneficiary of an enforceable judgment shall not be required to have recourse to other legal procedures to obtain enforcement.

Explanatory remarks

1. ALI/Unidroit Principles of Transnational Civil Procedure

Among the principles, Principle 26 deals with the «Immediate Enforceability of Judgments»:

«26. Immediate Enforceability of Judgments

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26.1.The final judgment of the first instance court ordinarily should be immediately enforceable.

26.2.The first instance court or the appellate court, on its own motion or motion of a party, may in the interest of justice stay enforcement of the judgment pending appeal.

26.3.Security may be required from the appellant as a condition of granting a stay or from the respondent as a condition of denying a stay».

2.Council of Europe

Recommendation Rec (2003) 17 of 9 September 2003

The Recommendation repeats that «there should be no postponement of the enforcement process unless there are reasons prescribed by law. Postponement may be subject to review by the court» (guiding principle III-1-f).

European Court of Human Rights

The European Court of Human Rights considers that while States may intervene in the enforcement of court decisions, such interventions may not have as consequence the obstruction, invalidation or excessive delay of enforcement, and even less the questioning of the merits of said decision. A stay of the enforcement of a court decision for the period of time strictly necessary to find a satisfactory solution to problems of a public policy nature may be justified in certain circumstances (ECHR, Matheus v. France, 31 March 2005, No 62740/00). Only «reasons of a social nature in the field of housing or social guidance could justify the State delaying the assistance of the forces of public order» (ECHR, Sofiran & ВDA v. France, 11 July 2013, No 63684/09).

3. The Hague Conference on Private International Law

The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance includes a Chapter VI entitled «Enforcement by the State Addressed» and states that enforcement is carried out in accordance with internal law. However Article 32-1° specifies that «enforcement shall take place in accordance with the law of the State addressed, subject to the provisions of this Chapter» Article 32-3° goes on to say with respect to these mandatory provisions that with respect to applications through Central Authorities, where a decision has been declared enforceable, «enforcement shall proceed without the need for further action by the applicant».

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Article 5. Costs of enforcement

The costs of enforcement are pa/able by the debtor, but the creditor must pay them in advance, except in those cases provided for by the law (in particular for the payment of maintenance).

In the event of the insolvency of the debtor, the costs are borne by the creditor.

Should the judge decide that the creditor has abused his power to seek enforcement, he may direct the creditor to pay the costs of enforcement and to compensate the loss sustained by the debtor.

States must ensure that these enforcement costs are fixed, predictable, transparent and reasonable.

They must make certain that all creditors have equal access to enforcement measures by providing legal support.

Explanatory remarks

1. Council of Europe

Recommendation Rec (2003) 17 of 9 September 2003

The Recommendation indicates in guiding principle III-2-3-4 and 5: «3. Enforcement fees should be reasonable, prescribed by law and made known in advance to the parties. 4. The attempts to carry out the enforcement process should be proportionate to the claim, the anticipated proceeds to be recovered, as well as the interests of the defendant. 5. The necessary costs of enforcement should be generally borne by the defendant, notwithstanding the possibility that costs may be borne by other parties if they abuse the process».

CEPEJ Guidelines on Enforcement of 17 December 2009

In this document, the control of the costs of the enforcement process is an important element that is expressed in several recommendations to states:

●guaranteed access by means of a mechanism of legal support... (cost set by law);

●a procedure for disputing costs must be established with transparency: rates must be disclosed (even by means of a website). This must be a matter of public policy and based on easily defined criteria;

●the same principles in the event of «international» enforcement;

●information about the cost of the enforcement by the enforcement agent who is acquainted with the financial situation of the debtor;

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● costs must be borne by the solvent debtor But the claimant must be held to the fees. In the event of the insolvency of the debtor the claimant pays.

«2.1. Regulation of costs

47.Each member state is encouraged to introduce regulations governing the level of enforcement costs to ensure effective access to justice notably through legal aid or schemes allowing for the waiver of costs or a postponement of their payment, where such costs are likely to fall to the parties. The parties should be protected to ensure that they will pay only the costs determined by law.

48.Where, within the same member state, there are enforcement agents working in both the private and public sector the state should avoid any discrimination in terms of the costs for the debtor between enforcement agents of different status but equal competence.

49.Member states should introduce a procedure whereby parties may challenge the costs of the enforcement agents.

2.2.Transparency of enforcement costs

50.Where enforcement costs are likely to fall to the parties, the member states should ensure that the latter are informed as fully as possible about the enforcement costs (enforcement fees and the performance fees due upon successful completion). This information should be made available to the parties not only by the enforcement agent but also by the courts, consumer organisations, procedural codes or via the official Internet sites of the judicial and professional authorities.

51.In recognition of the growing mobility of persons and services in Europe, there is an increasing need for international enforcement of court decisions. The transparency of enforcement costs should therefore go beyond mere domestic level: member states should agree to set up a data base of the amounts charged for the procedural acts most frequently performed and make it as broadly available as possible, with the aim of giving persons in other member states access to each country’s structure of charges.

2.3.Clarity and predictability of enforcement fees

52.Enforcement fees should be public. Member states are encouraged to require that any procedural document clearly indicate the amount of the action and provide for sanctions in the event of non-compliance (i.e. invalidity of documents failing to comply with the requirement, etc.).

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53.Where the defendant’s financial situation is known to the enforcement agent and he recommends a particular enforcement process he should inform the claimant about the type of action envisaged and the likely resulting costs at the beginning of and at each stage in the procedure.

54.The clarity of fees is a factor in the transparency of enforcement costs. In order to be as intelligible as possible, the fee for an action should depend on a limited number of factors. The fee should be set out in the regulation as simply, clearly and concisely as possible.

55.When setting enforcement fee tariffs, member states should exchange their experiences and consider the need to take certain factors into account, such as the amount of the debt, any particular urgency and the difficulties that the enforcement agent is likely to encounter.

2.4. Relevance of taking action

56.The ultimate cost of enforcement should be in due proportion to the remedy sought. Member states should endeavour to provide an effective enforcement procedure for all level of debts, either large or small.

57.It is the responsibility of the enforcement agent to take all reasonable and necessary steps in enforcement and to decide which enforcement action is most appropriate. Where costs are considered irrelevant or wrongfully incurred, these costs should be borne by the enforcement agent.

58.Member states which grant legal aid should verify the relevance of the costs incurred, so that the community does not have to bear unjustified costs.

59.Where an enforcement agent has a duty to offer proper advice, he/ she should be required to explain clearly to claimants their situation and the relevance of the action they suggest be taken.

2.5. Allocation of enforcement costs

60. Enforcement fees should be borne by defendants, where he or she is solvent, together with the possibility of a performance fee borne by the claimant. Where the defendant is insolvent, the enforcement fees should be paid by the claimant.

61. Where enforcement is deemed to be wrongful or irregular liability for the costs should be borne by the persons or the bodies responsible for the wrongful or irregular act.

2.6. Legal aid

62. In order to guarantee access to justice, legal aid schemes, or alternative funding schemes, should be available to claimants who are unable to pay

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enforcement fees (i.e. by means of state funding or by remitting the fees). Where legal aid is granted, the state may, if considered just, avail itself with mechanisms allowing it to recover its outlay from the proceeds of enforcement».

2. European Union

Council Directive No 2002/8/EC of 27 January 2003 is aimed at improving access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ No L 26 of 31 January 2003, p. 41).

In Article 3, part. 1 this directive states that «Natural persons involved in a dispute covered by this Directive shall be entitled to receive appropriate legal aid in order to ensure their effective access to justice in accordance with the conditions laid down in this Directive». This right is not confined to the phase of obtaining a judicial decision but, the costs «incurred in having a judgment declared enforceable or enforced» fall likewise within the scope of application of this directive (in this respect, see consideration No 20 of the directive).

According to Regulation (EU) No 655/2014 of the European Parliament and of the Council «establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters» signed into law on 15 May 2014, the court fees for obtaining such an order should not be higher than those for obtaining an equivalent national order. The fees charged by a bank to the creditor or a debtor must be provided for by national law (Article 43).

3. International organizations

Although strictly speaking they are not concerned with the enforcement of enforceable titles, we may, by way of comparison, refer to the ALI/Unidroit Principles of transnational civil procedure and in particular to principle No 25 which deals with «costs»:

«25. Costs

25.1.The winning party ordinarily should be awarded all or a substantial portion of its reasonable costs. «Costs» include court filing fees, fees paid to officials such as court stenographers, expenses such as expert-witness fees, and lawyers’ fees.

25.2.Exceptionally, the court may withhold or limit costs to the winning party when there is clear justification for doing so. The court may limit the award to a proportion that reflects expenditures for matters in genuine dispute and award costs against a winning party who has raised unnecessary

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issues or been otherwise unreasonably disputatious. The court in making cost decisions may take account of any party’s procedural misconduct in the proceeding».

4. Ohada

«The costs of the compulsory distraint shall be borne by the debtor save where it is clear that they were not warranted at the time they were incurred. Save where they concern an act whose performance is provided for by the national law of each Contracting State or by this Uniform Act, or is authorized by the competent court, costs incurred for recovery without an executory clause shall be borne by the creditor At his request, however, the competent court may transfer all or part of the costs incurred to the mala fide debtor» (Article 47 of the Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998).

Article 6. Speed of enforcement

The enforcement must be carried out by the enforcement agent or the judicial officer diligently and within a reasonable period of time.

Explanatory remarks

1. Council of Europe

Recommendation Rec (2003) 17 of 9 September 2003

«7. Assets should be sold promptly while still seeking to obtain the highest market value and avoiding any costly and unnecessary depreciation» (guiding principle III-2-7).

CEPEJ Guidelines on Enforcement of 17 December 2009

«3.1. Timeframes for enforcement procedures 3.1.1. Reasonable and foreseeable time limits

63.The time lines for enforcement procedures should be reasonable and member states should not impose any arbitrary cut-off deadlines for enforcement to end.

64.Member states should set forth clear and precise criteria regarding the reasonable nature of the duration, which could vary according to the nature of the case and the type of action requested.

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