European Enforcement Order for uncontested claims
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
– applying it in the Polish court practice
Grzegorz Karaś
Judge of District Court for Wrocław-Fabryczna
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
I. The subject matters of the Regulation are:
1. definition of cases, where the claim is uncontested within the meaning
of the Regulation,
2. creating a norm aiming to certify a judgement as a European
Enforcement Order,
3. provisions concerning the minimum standards of proceedings having
as a subject the uncontested claims,
4. Some aspects of proceedings aiming at enforcement of the EEO in the
Member State of enforcement as well as,
5. Definition of requirements, which have to be met, in order for court
settlements or authentic instruments to be certified as EEO.
II. Scope of application
According to art. 3.1 this Regulation does only apply to judgments, court
settlements and authentic instruments on uncontested claims:
Claims are to be regarded as uncontested if:
1. the debtor has expressly agreed to it by admission or by means of a
settlement, which has been approved by a court or concluded before a
court in the course of proceedings;
or
2. 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
3. the debtor has not appeared or been represented at a court hearing
regarding that claim after having initially objected to the claim in the
course of the court proceedings, provided that such conduct amounts
to a tacit admission of the claim or of the facts alleged by the creditor
under the law of the Member State of origin; or
4. the debtor has expressly agreed to it in an authentic instrument.
III. In the light of the Polish law it should be considered that
judgments including the uncontested claims and authentic
instruments in which the debtor has recognised the claim within
the meaning of the Regulation are:
1.
2.
3.
4.
5.
6.
7.
8.
9.
judgements concerning recognized claims (art. 213 § 2 & art. 333 § 1.2 Code
of Civil Procedure = k.p.c),
judicial decisions by default (art. 339 Code of Civil Procedure and art. 333 § 1
pkt 2 Code of Civil Procedure),
settlements concluded in the course of the judicial settlement proceedings
(art. 223 Code of Civil Procedure),
settlements concluded within the settlement proceedings conducted prior to
the institution of the disputable proceedings (art. 184 Code of Civil
Procedure),
settlements concluded through mediation and subsequently approved by
the court,
writs of payment issued in order proceedings (art. 485 Code of Civil
Procedure),
writs of payment issued in warning proceedings (art. 498 Code of Civil
Procedure),
notarial deeds, in which the debtor submitted himself to enforcement,
banking execution titles.
IV. Procedure of issuing an EEO Certificate for Polish
judgments
In connection to the Regulation No805/2004 new provisions implementing
the above regulation have been introduced into the Polish Code of the
Civil Procedure. The Act of 17 February 2006 (Dz.U z 2006r., No 66,
Pos. 466) has amended the Code of the Civil Procedure.
The new provisions entered into force on 5 May 2006.
Provisions of the Polish Code of the Civil Procedure concerning
procedure of issuing an EEO Certificate introduced by the Act of 17
February 2006:

art. 206 § 2 k.p.c.

art. 795 1 – 759 5 k.p.c.

art. 820 1 and 820 2 k.p.c.

art. 825 point 5 k.p.c.

art. 840 3 k.p.c.

art. 1153 1 and 1153 2 k.p.c.
Premises of issuing EEO Certificate
Art. 7951
Art. 7951. § 1. Where the execution title in form of a judicial decision,
settlement concluded before the court or approved by the court meets
the requirements specified in separate provisions, the court, which
has delivered the decision or before which the settlement was
concluded or which has approved the settlement, shall upon the
application of the creditor deliver a certificate that they are an EEO
further referred to as “certificate as an EEO”.
§ 2.Where the application upon issue of a certificate as an EEO relates to
another execution title then referred to in par. 1, the district court, in
whose circuit the title was issued shall decide upon this application.
Court Panel
Art. 7952
The decision upon the issue of a certificate as an EEO shall be conducted
by the court sitting with a panel of one judge.
Service, appealing against decision
Art. 7953
§ 1. The decision upon refusal of issue a certificate as an EEO shall be
served on the creditor only.
§ 2. The decision on refusal of issue of the certificate as an EEO shall
be subject to an interlocutory appeal by the creditor.
Procedure of reversal of the EEO certificate
Art. 7954
§ 1. In the event of finding, that there is in specific provisions a ground for
reversal of the certificate as an EEO, the court, which has issued it,
shall reverse such certificate upon the application of the debtor.
§ 2. The application shall be presented within one month of the day of the
service of the copy of the decision on issue of the certificate.
§ 3. Where the application was not made out on a form as set out in
specific provisions, it shall meet the requirements for a pleading and
specify the circumstances justifying the application.
§ 4. Prior to reversal of the certificate the court shall hear the creditor.
§ 5. The ruling of the court on the reversal of the certificate as an EEO
shall be subject to an interlocutory appeal.
Loss and limitation of EEO certificate
Art. 7955
§ 1. The provisions of Art. 7951 and 7952 shall apply accordingly to issue
of separate certificates of loss or limitation of enforceability of an
enforcement order certified as an EEO. The application on issue of
such certificate may lodge also the debtor.
§ 2. The ruling of the court on issue of the certificate provided for in
par. 1 shall be subject to an interlocutory appeal.
V. Enforcement proceedings in Poland upon judgments
taken in other Member States and certified as an EEO
in a Member State of origin
The Regulation 805/2004 establishes two fundamental principles of enforcement in
the state in which enforcement is sought:
1. abolition of exequatur – Art. 5 “A judgment which has been certified as
a European Enforcement Order in the Member State of origin shall be
recognised and enforced in the other Member States without the need
for a declaration of enforceability and without any possibility of
opposing its recognition.”
2. a judgment that has been certified as a European Enforcement Order
by the court of origin should, for enforcement purposes, be treated as
if it had been delivered in the Member State in which enforcement is
sought – Art. 20.2 and point 8 of preamble to the Regulation.
VI. Necessity of obtaining enforceability clause
In Poland according to Article 776 k.p.c. an execution document shall be
the basis for the execution. The execution document is an enforceable
title complete with the execution formula. Giving the enforceability
clause is necessary for the possibility of enforcement procedure in
Poland. The executive body is in Poland a court executive officer who
can start the enforcement upon the application of a creditor after
submitting the enforcement title with enforceability clause by the
creditor.
Procedure of giving enforceability clause to enforceable titles with EEO
certificate from the state of origin is specified in Article 11531 and
11532 k.p.c.
Art. 11531 k.p.c.
Court judgments from EU Member States, settlements concluded before
these courts or approved by these courts and authentic instruments
made in EU Member States, provided in these countries with EEO
certificate, are execution titles and are subject to enforcement in
Poland after
giving enforceability clause.
Art. 11532
Enforceability clause is given to the execution titles from art. 11531 k.p.c.
by a District Court of debtor’s general jurisdiction and if this
jurisdiction cannot be determined – a District Court in which circuit
the enforcement must start.
Procedure of giving enforceability clause
Enforceability clause is given by a District Court sitting with a panel of
one judge.
The application on giving enforceability clause is adjudicated
immediately, not later than 3 days from the date of lodging it – art. 7811
k.p.c.
The application on giving enforceability clause is subject to the court
charge of 50 zloty.
If an execution title is expressed in foreign currencies (eg. Euro) the court
executive officer converts it into Polish zloty according to the average
rate of National Bank of Poland.
Giving enforceability clause has a form of the court decision and the
creditor is being served with it. The debtor is being served with this
decision by the court executive officer during the first executive
activity.
Appeal against a court decision of giving enforceability
clause
Article 795. k.p.c. – Giving the enforceability clause shall be subject to a
complaint.
The time limit to file a complaint is 7 days and it runs as follows:
- for the creditor - from the date of serving him with a copy of the
decision on giving the enforceability clause
- for the debtor - from the date of serving him with the notification of
starting execution.
The complaint on a decision of giving enforceability clause is being
adjudicated by the Circuit Court as a court of the second instance.