Enschede, 2019-01-07

The European order for payment is an appropriate means of making unpaid and uncontested pecuniary claims of a foreign debtor enforceable. This has been possible since 12 December 2008 with the introduction of EC Regulation 1896/2006.

At the creditor’s request, a European order for payment against the debtor is requested by means of a standard form in the official language of the requested court. The competent court decides on the application without hearing from the debtor. After the European order for payment has been issued, the creditor must inform the debtor of the payment order. The debtor is then given the opportunity to object to the order for payment within 30 days. If the debtor fails to do so, the court will issue an enforceable copy of the order for payment, which can be used to initiate enforcement. If the debtor lodges a statement of opposition within the time limit, the proceedings before the competent courts are continued as ordinary civil proceedings.

In recent years there has been a lack of clarity regarding the service of the order for payment for the purposes of EC Regulation No 1393/2007 on the service of (extra)judicial documents. Central questions were in which language the order for payment should be issued and whether the debtor could refuse the order if the creditor did not fulfil the formal requirements. In some cases, the service of the order did not comply with the formal requirements, but the debtor was misinformed of his rights in this respect. Judges in the EU Member States interpreted the Regulation on the European order for payment differently.

By judgement of 6 September 2018, the European Court of Justice ruled in case C-12/17 that the right to refuse an order for payment must be clear. The document must be presented to the debtor in a language he understands. In addition, the debtor must be duly informed of his right to refuse the acceptance of the concerning document using the standard form set out in Annex II to Regulation No 1393/2007. In case C-12/17, the Court ruled that non-compliance with the formal requirements had not led to an end of the time limit for the recipient of the European order for payment to reply.

Author: Irith Hoffmann, I.K.M., attorney at law

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