Глобальный кодекс принудительного исполнения

Part 3

JUDICIAL AUTHORITIES

Article 22. Role of judges

Only a judge can rule on disputes arising from the enforcement and order the measures necessary for its implementation at the request of one of the parties or of the enforcement agent.

The judge to whom application is made by the debtor, an interested third party, the judicial officer or enforcement agent may suspend or cancel an enforcement measure should a sound reason justify such.

Explanatory remarks

1. Council of Europe

Opinion No 13 (2010) on «The role of judges in the enforcement of judicial decisions» of the Consultative Council of European Judges. Point 8 of the «General Principles» of the Opinion indicates that «the enforcement procedure must be implemented in compliance with fundamental rights and freedoms (Articles 3, 5, 6, 8, 10, 11 of the [ECHR], data protection, etc.)», whereas Point 9 states that «the decision to be enforced must be precise and clear in determining the obligations and rights engaged in order to avoid any obstacle to effective enforcement». Point 18 of the opinion reads: «In order for judges to fulfil their tasks, the judiciary should be entrusted with the following missions concerning enforcement: [...] an appeal to a judge if the enforcement is not initiated or is delayed by the relevant bodies; a judge should also be involved when fundamental rights of the parties are concerned; in all cases, the judge should have the power to grant just compensation; [...] an appeal or complaint to a judge if there is any abuse in the enforcement procedure; [...] an appeal to a judge in order to settle litigation concerning enforcement and to give orders to state authorities and other relevant bodies to enforce decisions; at the final stage, it should be up to the judge to use all possible ways to ensure enforcement; [...] to identify and take due account of the rights and interests of third parties and members of the family including those of children». The judge must only intervene in the enforcement process if there is an incident.

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2. Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998 defines the role of the judicial authorities. Article 48 states that «The bailiff or process-server may, whenever he encounters any difficulty in executing a writ of execution, take the initiative to refer the matter to the competent court. The bailiff or process-server shall deliver at the expense of the debtor a writ of summons to the parties and inform them of the date, time and place of the hearing during which the difficulty shall be examined. He shall disclose to the parties the fact that a ruling may be made in their absence». To avoid delays in enforcement, the court rules in accordance with an emergency procedure as set out in Article 49, «The competent authority to rule on all disputes or petitions relating to a forced act of performance or sequestration shall be the president of the court ruling in urgent proceedings, or the judge delegated by him. His decision may be appealed against within a period of fifteen days from its pronouncement. The time limit for appeal and the exercise of the right to appeal shall not bar enforcement unless otherwise specially decided, with reasons therefor by the president of the competent court».

Article 23. Timeframe for enforcement

The judge may amend the enforcement and grant a stay of enforcement.

Explanatory remarks

1. Council of Europe

According to Recommendation Rec (2003) 17 of 9 September 2003 the enforcement procedure must «f. prescribe a right for parties to request the suspension of the enforcement in order to ensure the protection of their rights and interests». The competent judge of the State must be able to change the enforcement measures.

2. Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998 allows the debtor to apply to the judge for certain measures to mitigate the enforcement. Article 39 provides that «A debtor may not compel a creditor to receive part payment of a debt, even a divisible debt. However, taking into account the situation

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Part 4

PROVISION COMMON TO ENFORCEMENT

MEASURES

Article 25. Goods that cannot be seized

All goods can be seized subject to the exclusion of those goods considered immune from seizure by national law. In the event of a seizure of bank assets, a sum must be left at the disposal of the debtor sufficient to ensure his and his family’s subsistence, the amount whereof is determined by law.

Explanatory remarks

1. European Union

Regulation No 655/2014 of the European Parliament and the Council «establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters» adopted on 13 May 2014, states that certain amounts in the bank account are exempt from the preservation order. This is essentially a matter of the sums exempt from seizure as provided by the law of the Member State of enforcement (Article 31).

2. Council of Europe

Recommendation Rec (2003) 17 of 9 September 2003 provides that «h. certain essential assets and income of the defendant should be protected, such as basic household goods, basic social allowances, monies for essential medical needs and necessary working tools» (guiding principle III-1-h).

3. Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998 provides for the immunity from seizure by referring to national law in Article 51: «Inalienable property and rights shall be defined by each of the Contracting States». Article 53 supplies clarification about the inalienability of sums deposited in a bank account: «Where an account, even a joint account, supplied by the earnings and salary of one spouse under community of property, is subject to a forced act of performance or sequestration for the payment or guarantee

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Article 27

of a debt incurred by the other spouse, there shall immediately be placed at the disposal of the spouse under community of property a sum of his choice equivalent to the earnings and salary paid into the account during the month preceding the seizure or to the average monthly amount of earnings and salary paid in during the twelve months preceding the seizure».

Article 26. Immunity

Cases of immunity must be clearly specified in national law, particularly in respect of the state and public entities, as well as in respect of diplomatic personnel.

Explanatory remarks

Ohada

The Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of Ohada of 10 April 1998 provides in Article 30: «Compulsory distraint and preventive measures shall not apply to persons enjoying immunity from execution. However; any unquestionable debts due for payment belonging to public corporations or enterprises, regardless of their form and mission, may equally be compensated with unquestionable debts due for payment belonging to any person owing them, subject to reciprocity. The debts of the corporations and enterprises referred to in the preceding paragraph may only be considered as unquestionable, within the meaning of the provisions of this article, where they arise from an acknowledgement by the said corporations and enterprises of the debts or of a writ enforceable on the territory of the State where the corporations and enterprises are based».

Article 27. Proportionality of the measure of enforcement

The enforcement measure must be proportional to the amount of the claim. In the event of abuse, the creditor may be directed to make reparations.

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Article 28. Autonomy of the judicial officer and the enforcement agent

The judicial officer or the enforcement agent autonomously implements the measure most appropriate to the rights of the creditor and the basic rights of the debtor.

Article 29. Flexibility of the measures of enforcement

States must organize their enforcement systems by adapting them to the interests of the creditor and the economic and social situation of the debtor. For this reason, they must diversify the enforcement measures so that the judicial officer or enforcement agent may choose among them in keeping with the circumstances.

Article 30. Flexibility having regard for the nature of the goods

States shall adapt the measures of execution to the legal status of the seized assets.

Article 31. Enforcement in kind

When a judge directs to the performance or non-performance of an obligations, he must be able to accompany his judgment with a constraint measure.

Article 32. Enforcement on the person of the debtor or his family

States shall ensure that enforcement on the person complies with international Conventions, Charters and Declarations.

Imprisonment for civil debt is prohibited.

Enforcement on the members of the family of the debtor must be prohibited and the primacy of the interests of the child must be respected.

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Part 5

PROVISIONS COMMON TO PROVISIONAL

MEASURES

Article 33. The right to a provisional or conservatory measure

Every creditor who shows relevant circumstances may obtain authorization from the judge for the application of a provisional or conservatory measure to ensure the protection of his rights.

The creditor who is the holder of an enforceable title may implement the provisional or conservatory measure without the authorization of a judge.

Explanatory remarks

1. Council of Europe

In its judgment in Micallef v. Malta of 15 October 2009, the European Court of Human Rights insisted on the essential aspect of interim measures. Initially, the European Court had ruled that judicial decisions that do not rule on the merits do not enter into the scope of application of Article 6 § 1 ECHR and the right to fair trial did not apply to them. In the Micallef v. Malta judgment given on 15 October 2009 the Court however indicates that nowadays «there is widespread consensus among Council of Europe Member States, which either implicitly or explicitly provide for the applicability of Article 6 guarantees to interim measures, including injunction proceedings». It points out that decisions taken by judges in injunction proceedings are often «tantamount to a decision on the merits of the claim for a substantial period of time, even permanently in exceptional cases». The judgment continues «that, frequently interim and main proceedings decide the same «civil rights or obligations» and have the same resulting long-lasting or permanent effects». Consequently the Court considers that «Against this background the Court no longer finds it justified to automatically characterize injunction proceedings as not determinative of civil rights or obligations». The applicability of Article 6 of ECHR to interim measures is subordinate to two conditions. First of all the «right at stake in both the main and the injunction proceedings should be «civil» within the autonomous meaning of that notion» (ibid., § 84) and subsequently «the nature of the interim measure, its object and

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Article 33

purpose as well as its effects on the right in question should be scrutinized. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable» (ibid., § 85). However, the Court «accepts that in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process – it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue». «In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question» (ibid., § 86).

2. European Union

The law of the European Union has mainly to do with the implementation of a conservatory measure in a Member State other than the one in which the title on which it is based has been obtained. The interim and conservatory measures the European texts concerning civil law cooperation address are those provided by the national law of the Member States. The Court of Justice of the European Union (formerly the Court of Justice of the European Communities) defined «provisional or protective measures in a Reichert v. Dresdner Bank judgment of 26 March 1992 (case 261/90) as being measures which... are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter». This definition excludes the «référé-provision» whereby an advance on the claim can be obtained by means of an interim payment order since it does not satisfy the two cumulative conditions formulated in the CJEU judgment, Van Uden, 18 November 1998, case C-391/95 for qualification as a provisional measure (1° repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, 2°, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made, which comes down to demanding the existence of a real connecting link between

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the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought).

Council Regulation (EC) No 44/2001 of 22 December 2000, known as «Brussels I», thus opens two possibilities regarding provisional and protective measures: 1° the beneficiary of a decision given in a Member State, which according to the Regulation must be recognized but has not (yet) been declared enforceable, may proceed with the provisional and protective measures provided for by the law of the requested Member State (which is the possibility created by Art. 47.1); and 2° the cross-border circulation of judgments that authorize a protective measure.

There are two significant changes.

The first of these is the entry into force on 10 January 2015 of the Brussels I Regulation (recast) No 1215/2012 of 12 December 2012, or Brussels I Recast. Article 2, a) and consideration 33 of this text make a distinction between provisional and protective measures ordered by a judge competent to rule on the merits or otherwise. In the first case, free circulation is authorized, on condition nonetheless that, if the provisional or protective measure was ordered without the defendant being summonsed to appear; the decision was notified or served on him prior to enforcement (Reg., Art. 2, a). In the second case, the effect of the measures is restricted to the territory of the member state of the court which ordered the measures.

At a later date 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» will introduce a uniform European procedure that will stand above national law.

3. International organizations

In the Ohada zone, Article 28 of the Uniform Act organizing Simplified Recovery Procedures and Measures of Execution of 10 April 1998 clearly states that the creditor may compel the defaulting debtor to honour his obligations towards him or take preventive measures to secure his rights. «Any person whose claim appears in principle to be founded may, by petition, pray the competent court of the residence or place of abode of the debtor for an authorization to take preventive measures on all the tangible or intangible personal property of his debtor; without prior summons to pay, where he can show justifiable circumstances which are likely to jeopardize the collection» (Article 54). «Sequestration may be carried out on all the tangible or intangible personal property belonging to the debtor. It shall render such property inalienable» (Article 56).

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