- Vincent Brouwers - Leo Peeters
- recovery of debts , nternational debt , enforceable title , Brussels I-bis Regulation , declaration of enforceability , European Payment Order procedure , IOS-procedure , European Small Claims Procedure
Companies have a lot more international debtors as a result of globalisation and internationalisation of trade, making the recovery of debts a lot harder. It is a good thing that the law is evolving more and more towards making the recovery of international debts simpler and faster.
Suppose a Belgian company has a claim on a French buyer, but the latter refuses to pay. The Belgian company therefore wants to seize the buyer's movable assets in France. Which steps should be taken to achieve this?
Suppose a Dutch creditor wants to seize a French debtor's car that is located in Belgium at that moment. Would this procedure differ from when the creditor wants to seize the debtor's apartment on the Belgian coast?
These kinds of questions arise more and more. The last few years the EU has taken several initiatives to simplify and speed up certain processes. We give you an overview of the applicable rules and procedures that apply to the international recovery of debts (within the EU).
1. As a creditor, you need an enforceable title
The first step in the recovery of a claim is to send a reminder to the debtor, requesting or, if necessary, summoning him to pay the amount due. Should the debtor refuse to pay willingly, then the creditor must proceed to "execution", for example by executive seizure of the debtor's assets.
An alternative to executive seizure is a preserving attachment (e.g. home, shares, bank account). This means that the debtor would maintain possession of the goods, but he will be inhibited from selling them or giving them away. In order to attach the assets for security you do not need an enforceable title, but other requirements must apply, e.g. "urgency". We will not go into further details about the preserving attachment.
In order to proceed to "execution", a so-called "enforceable title" is indispensable. This title could be a court judgment or a notarial deed, stating that the debtor owes the creditor a sum of money.
Should you not possess said notarial deed or any other form of enforceable title, you will be forced to summon the debtor to the competent Court.
We will clarify how such legal action is not always required, also in cross-border cases.
First we will elaborate the cross-border enforceability of judgments that were obtained after legal actions.
2. Declaration of enforceability
The so-called Brussels I-bis Regulation (12.12.2012) has elicited major changes in cross-border enforceability. Ever since, a judgment made in any EU member state can be executed in another EU Member State without having to declare the enforceability to the local court in the Member State where the judgment will be executed.
Previously, a declaration of enforceability (also known as "exequatur") had to be obtained in the Member State addressed.
Since the Brussels I-bis Regulation, it is sufficient for the creditor to request a copy of the judgment from the Court where the original judgment was given, along with a certificate proving that the decision is enforceable.
It is therefore sufficient for a Dutch creditor, who owns a French judgment (an enforceable title) against a French debtor, to request a written confirmation of enforceability from the court where the judgment was given. Doing so would allow him to carry out the judment in Belgium, allowing him to seize the debtor's movable asset currently situated in Belgium (e.g. a car).
3. IOS-procedure in a B2B-context
A procedure before the national court can drag on for a very long time. This has lead to both Belgian and European legislators to introduce various instruments that allow an enforceable title to be obtained in an accelerated and sometimes even extrajudicial manner.
If both the debtor and the creditor act as professionals (in a so-called B2B-relationship), a specific procedure can apply in Belgium, allowing creditors to receive an enforceable title through a lawyer and the bailiff, without intervention from a court.
This procedure is also referred to as the Recovery of Undisputed Debts or RUD procedure. This procedure requires an undisputed monetary debt between professionals, which is fixed and payable at the time of the payment demand.
Previously, this procedure was only open to professionals who had been registered in Belgium in the Crossroads Bank for Enterprises.
Recently, this procedure has also indirectly been made available to professionals from some other EU member states. By Royal Decree, comparable databases were equated with the Belgian Crossroads Bank for Enterprises. These are the databases of the Netherlands, France, Germany, Luxemburg, Italy, Spain and Austria.
Companies from these countries will already be able to benefit from the accelerated RUD procedure in Belgium if their professional debtor is established in Belgium.
For example, a French company with an undisputed claim on a Belgian customer will be able to use the Belgian RUD procedure to speed up the enforcement of an enforceable title.
Belgian companies will also increasingly be able to turn to similar procedures in EU member states.
4. The European Payment Order procedure
The European Payment Order procedure is a European procedure made to simplify obtaining an enforceable title for international claims.
Unlike the RUD procedure, it is not required for both parties to be professionals. The procedure can also be used for debts between private individuals for example.
However, it should be taken into account that certain matters are excluded from the scope of the procedure. These include in particular: (1) the property regime of marriage and similar forms of cohabitation, (2) inheritances and wills, (3) insolvency, (4) social security, and (5) non-contractual obligations, such as obligations arising out of tort/delict, unless they are the subject of a contract or a confession of debt.
The procedure can be initiated with a standard form, which is sent to the competent court, stating the details of the parties, the exact amount to be claimed, the amount of interests and costs, and the claimability of the amount.
After receiving the standard form, the court issues an order for payment, which is served to the debtor.
Again, the claim must be undisputed. If the debtor puts forward a defence, the European Payment Order procedure ends and practically becomes a "normal" national procedure.
If the creditor fails to do so, the order for payment will be declared enforceable and the creditor will obtain the enforceable title much faster.
The Payment Order procedure is a useful tool that can be used in cross-border disputes by the residents of any EU member state. For example, a Belgian creditor can initiate such proceedings against a Spanish debtor, thereby choosing whether he wants to file the forms in Belgium or in Spain.
5. European Small Claims Procedure
The European Small Claims Procedure was introduced in 2007 and is a written procedure.
It may be applied in civil and commercial matters of a cross-border nature, where the amount of the claim does not exceed 5,000 euro.
Like the European Payment Order procedure, it can be used for debts between private individuals.
A second similarity to the Payment Order procedure is that the Small Claims procedure is initiated by sending a standard form to the competent court, briefly explaining the amount of the claim, the interests and the costs. This form will be accompanied, when necessary, by relevant and supporting documents.
After receiving this form and any documents, the court will send a copy to the other party, along with a reply form, should the claim be contested.
The main difference with the Payment Order procedure is that the Small Claims procedure is not automatically discontinued or transferred to the "normal" national procedure when the claim is contested by the debtor. In the event of a dispute by the debtor, the procedure is simply continued within the same framework and before the same court, which takes note of the debtor's arguments and ultimately reaches a verdict.
The court may even hold an oral hearing if it considers it necessary or if a party so requests.
However, the court may refuse such a request if it believes that a fair trial in this case does not require an oral hearing. If the court has the necessary technological means, the oral hearing can also be held as a videoconference or with other forms of communication technology.
After the court evaluates the forms and the documents, it will decide on the case. This decision can result in an enforceable title, thereby enabling the creditor to seize the debtor's movable assets located in the European Member States.
6. Executive seizure on immovable goods
As previously mentioned, a Belgian judicial officer can seize movable assets located in Belgium, provided he has an enforceable title. Once an enforceable title has been obtained (accompanied by a declaration of enforceability if the judgment was made in another EU Member State), no further judicial intervention is required.
However, things are different when it comes to seizing real estate located in Belgium.
In this case, an additional intervention by the competent court of the judicial area where the property is located, is required. This form of seizure is considered so impactful that it requires an additional judicial review by a local court. The judge of attachments must then verify the regularity of the procedure and, if necessary, will appoint a notary responsible for the public sale of the property.
The French creditor in our previous example, who wished to seize the debtor's apartment on the Belgian coast, would first have to file an application for the appointment of a notary with the competent local court. Once the court has appointed a notary (after checking the regularity of the procedure), the notary must follow a specific procedure which ultimately leads to the public sale of the property.
7. In conclusion
When a debtor from another EU Member State continues to refuse to pay after receiving a reminder, it is in the creditor's best interest to obtain an enforceable titel in order to be able to perform executive seizure on the debtor's assets. In cross-border disputes there are four options when it comes to obtaining an enforceable title.
Because of the conditions attached to each special procedure (undisputed B2B debts in the RUD procedure, undisputed nature in the Payment Order procedure, the 5000 euro limit in the Small Claims procedure, etc.), one will not always have all options when it comes to these procedures and in some cases will still have to turn to a "normal" procedure before the court.
The enforcement abroad of a judgment or a verdict resulting from such procedures is possible because of a declaration of enforceability.
In order to know whether this procedure should be initiated in the debtor's country or in the creditor's own country, the rules of jurisdiction laid down in the Brussels I bis Regulation must also be taken into account.
It is a fact that each specific case requires a tailor-made approach, with one or the other procedure being preferred.
It goes without saying that we are more than happy to advise and assist you with this in any way we can, firstname.lastname@example.org or +32 (0)2 747 40 07.