Presentation 27 September 2019 (extended version)

1. EPO and ESCP in Luxembourg
MPI Luxembourg, 27 September 2019
Veerle Van Den Eeckhout

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Table of content
I. EPO and ESCP: general introduction
I. Both European uniform procedures ( but…)
II. Both for cross-border debt recovery
III. Both optional (for creditors, optional regimes) – “IC2BE”
II. ESCP
I. In general
I. Choice: presupposes regime available, informed choice presupposes aware of advantages – impact case
law CJEU
II. Choice: presupposes awareness of existence – = general problem
III. Problems faced by the ESCP in various Member States: “the ESCP is not a success story”
II. The Luxembourgish “atypical” case
I. Luxembourgish case law: varied ESCP-cases (with some “typical” cases)
II. Luxembourgish ESCP-procedures in which “consumer” is the defendant (commenced by Luxembourgish
plaintiffs)
III. “Consumer” as a plaintiff commencing an ESCP (= ESCP commenced by “consumer”)
III. In conclusion: is the ESCP to be considered a “working legal weapon” used by consumers?
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III. EPO: also high application in Luxembourg
I. (but) issue of jurisdiction
I. Rule article 6, 2 EPO
II. Check, remedies – Luxembourgish practice
a. At stage request
b. At stage review
c. At other stages?
II. Issue of pieces to be submitted
III. Issue of review
IV. Service issues
IV. Concluding
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I. EPO and ESCP: General introduction
= two of 4 second generation regulations, Nr. 2 (EPO) and 3
(ESCP) in row of 4 regulations,
“newborns” at the time,
meanwhile ESCP celebrating already its 10th
anniversary this year (as ESCP in force since 1/1/2009) (not anymore
“growing and teething” – already in its teens).
(see also https://cecluxembourg.lu/septieme-conference-sur-des-
aspects-du-droit-de-la-consommation/ )
hereafter first some common features (and differences)
.
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I. Both European uniform procedures (but
…)
Regulations have given birth to special
European procedures; European, uniform,
autonomous procedures with specific rules
from the commencement, including rules on
the value of the judgement, once obtained, in
other European countries
- but issue national aspects; see e.g.
ESCP article 17 appeal, art 19 reference to
national procedural law: many references to
the national procedural laws
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II. Both for cross-border debt recovery
I. Special regimes recovery of debt in cross-border
situations; aims: easy, quick, cheap procedures; plus
no exequatur (“second generation”) – cfr. Now Brussels 1
bis: also no exequatur anymore – but Brussels 1 bis still
more refusal grounds than ESCP and EPO)
II. (Note: with remark ESCP thought particularly
about consumers – aim of enhancing access to
justice for consumers) (but not necessarily, not
limited to consumers)
III. Note: sometimes overlapping scope, sometimes
not – e.g. ESCP limitation claims up to 5.000 euro,
since the amendment)
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III. Both optional (for creditors, optional
regimes)
I. To each other (when overlap). Note already: ESCP
contradictory procedure – EPO unilateral procedure.
II. To procedures existing under the laws of the member
states: (ordinary national procedure/special national
procedure, with Brussels 1 bis.
Note: Special procedure Luxembourg: “OPA” (“Ordonnance
de paiement”)
“’Mother regulation“ Brussels 1 bis still alive and kicking; (thus, one can still use a
national procedure – an ordinary national procedure or a special national
procedure (existing under the law of a Member State) – instead of a European
procedure, leading to a judgment, and use then the Brussels 1 bis Regulation in
order to have the decision of the judge of one European MS enforced in another
European MS
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SO: still national regimes + “European” regimes in new
regulations, as alternatives (and sometimes choice
between ESCP and EPO)
Optional for creditors: the plaintiff may choose among
different options.
Optional for creditors: how do creditors choose
between various regimes? – “IC2BE”-project: “Informed
Choices in Cross-Border Enforcement”
Hereafter first ESCP then EPO
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II. ESCP
I. In general
As said, Optional: choices (options for plaintiff); IC2BE (how do
creditors choose?)
I. “Choice”: Presupposes – for choice – that regime
available and – for “informed” choices – that aware of
advantages/disadvantages, points of attractiveness;
relevance Case law CJEU here: impact on availability and
attractiveness.
Cfr. two Cases CJEU so far on ESCP, on availability and
attractiveness ESCP for plaintiff):
- ZSE Energia, C-627/17 (“cross-border”) (scope of
application) – thus on availability ESCP
- and Rebecka Jonsson, C-554/17 (“costs”) – thus on
attractiveness ESCP
remark Rebecka Jonsson: illustrates, testifies problem
articulation European law – national law; what
European/what national – and how to act when national
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(note, distinction European/national:)
Cfr. Quote Raffelsieper and Duvé 2015: “(…), il se révèle
particulièrement difficile de tracer une ligne nette entre les règles de
procedure purement nationales et l’application présupposée uniforme
des instruments européens. Il semble que l’ordre juridique européenne
se retrouve face à une combinaison complexe de compétence
nationale avec une priorité processuelle des règles européennes, dans
le cas transfrontières”
(Raffelsieper and Duvé in book “Boundaries”, p. 611, with references in
footnote 45)
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CJEU Rebecka Jonsson (C-554/7), European/national:
Case about Fees distribution regime
Article 16 “costs”, “unsuccessful party” – article 19 national law
What if Parties successful in part and unsuccessful in part?
CJEU:
Article 16 “unsuccessful”: only regarding parties whose demands are not just
partially, but completely dismissed
Article 19: applicable procedural law: national law can determine the court fees
distribution regime in situation parties successful in part and unsuccessful in part
Though, in that situation, respecting principles of equivalence and effectiveness
(cfr. note hereafter on this)
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(Note CJEU Rebecka Jonsson: when national, procedural
autonomy: “principles of equivalence and effectiveness”)
Note: Reference in CJEU Rebecka Jonsson to previous case law CJEU
CJEU Rebecka Jonsson:
“26 Therefore, under Article 19 of that regulation, read in conjunction with recital 29 thereof, in a case such as that at issue in the main
proceedings, in which a party is only partially successful, procedural matters relating to the apportionment of the costs of the proceedings
between the parties remain governed by the national law of the Member States.
27 In that regard, it must be pointed out that, in the absence of harmonisation of domestic mechanisms for the apportionment of procedural
costs and subject to the provisions of Regulation No 861/2007, the procedural rules for determining such apportionment are a matter for the
domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the latter. However, those rules must
not be less favourable than those governing similar domestic actions (principle of equivalence) or such as to make it in practice impossible or
excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, by analogy, judgment of 13 December 2012,
Szyrocka, C-215/11, EU:C:2012:794, paragraph 34 and the case-law cited).”
CJEU Syzrocka: on EPO, referring itself in nr. 34 to
“34 In the absence of harmonistaion of domestic mechanisms for the recovery of uncontested claims, and subject to the conditions laid down
in Article 25 of Regulation No 1896/2006, the procedural rules for determining the amount of the court fees is a matter for the domestic legal
order of each Member State, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not
be less favourable than those governing similar domestic actions (principle of equivalence) or such as to make it in practice impossible or
excessively difficult to exercise the rights conferred by European Union law (see, to that effect, Case C-618/10 Banco Español de Crédito
[2012] ECR, paragraph 46 and the case-law cited).”
= case law court on Directive unfair terms, principle equivalence and effectiveness as applied in that context - reference
to CJEU Banco Español on claims (by consumer) on Directive unfair terms;
noteworthy here: perspective plaintiff in ESCP case in case that might be against consumer;
Reference to case law CJEU regarding protection consumer Directive consumer, but here consumer might be
defendant, here perspective plaintiff (who might be an enterprise and who might be considering to use ESCP against a
defendant who is a consumer) - Here perspective plaintiff, idea not discourage plaintiff - possibly against
consumer
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II. Choice: Presupposes awareness of existence
Choice: presupposes awareness of existence, and
presupposes familiar how works
= problem, = general problem. Touch here already
one of biggest issues when talking in general
Cfr. hereafter problems in general ESCP (problems
faced by the ESCP in various member states)
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III. Problems faced by the ESCP in various Member States
Problems of
• lack of awareness of the existence of the ESCP,
• lack of familiarity with the ESCP-procedure,
• cumbersome service (transmission of documents),
• language issues,
• costs of translation and other costs (e.g. often representation costs),
• enforcement uncertainties,
• ….
(note: practice guide ESCP, recently even updated – see http://conflictoflaws.net/2019/updated-european-small-claims-guides/ ,
but so problem awareness, problem also “national aspects”: lack of knowledge (also) how it works in other countries – as much
depends on national and thus might be different in various Member States)
…
said: “ESCP is not a success story”
Ex. Germany: in 2017, 478 small claim procedures, but a total of 950.000 proceedings in the local courts.
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II. The Luxembourgish “atypical” case
Cases collected ourselves when going to Cité Judiciaire:
Statistics Cité Judiciaire even higher, see figure on next page (“Petits
litiges” = ESCP)
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2014 34
2015 100
2016 83
2017 140
2018 139

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(II. The Luxembourgish “atypical” case)
Statistics Cité Judiciaire (“Petits litiges” = ESCP): even higher, see
figure
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Nouvelles affaires
Décisions prises

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So, Luxembourg: high number of application ESCP – = “atypical”
– turning Luxembourg into an interesting “laboratory”, “testing
ground”
Factors influencing the preferences of a plaintiff?
- for the use of an ESCP-procedure,
- especially for the use of an ESCP-procedure in
Luxembourg?
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a) Luxembourgish case law: varied ESCP-cases (with some
“typical” cases)
Workshop June, quote Luxembourgish judge - “Luxembourg is cosmopolitan, with lots
of commuters”,
Can be seen in Cases: cfr. cases about, i.a.,
Luxembourgish lawyers claiming lawyers fees,
cases payment Luxembourgish ambulances,
cases claims by Luxembourgish dentists etc.
against people living in Metz, Arlon, Trier …)
But more than this: Varied.
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(However) With Some patterns, “typical cases”, often seen in case
law:
ESCP often used by Luxembourgish professionals or Luxembourgish
organisations against private persons located abroad (Luxembourgish
plaintiffs claiming the costs for the services they had provided in
Luxembourgish to these people living abroad.
These professionals and organisations seem to have “discovered” the
ESCP as a welcome instrument
- e.g. “Services” in Luxembourg, Luxembourgish plaintiffs: jurisdiction
rules?? In cases against “consumers” (non-professionals). ? See hereafter
for some remarks
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b) Luxembourgish ESCP-procedures in which “consumer” is the
defendant (commenced by Luxembourgish plaintiffs)
(= including cases against consumers and similar persons) (“non-
professionals”)
* Typical problems (issues):
* Jurisdiction: possibility to commence ESCP in Luxembourg against a
foreign “consumer” (private person)?
Jurisdiction rules: narrow concept of “consumer” in article 17 (1) Reg.
Brussels 1bis (rules offering protection to “consumers”) (issue of difference
between “passive” and “active” consumers, whether activities have been
directed or not to country of consumer …)
- Relying on this, Luxembourgish judges often make it possible for plaintiffs
to rely on article 7 no 1 and no 2 of Reg. Brussels 1bis (opening up
jurisdiction in Luxembourg)
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note
(note: said e.g. in interviews not big difference “active/passive”
consumers – both easily falling under protection “consumers”. Cfr.
“Consumers” as plaintiff/defendant in several Luxembourgish cases.
Attention though (from perspective “consumer”, non-professional,
regarding jurisdiction rules): when about claims by Luxembourgish
lawyers against foreign clients: many cases client not considered as
“consumer” (said not directed activities to country of client by lawyer)
(thus, “in advantage” of plaintiff who might sue foreign defendant in
Luxembourg)
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Note: looking at jurisdiction rules applicable to the ESCP/the way they are
applied in Luxembourg, ESCP might be “tempting” to use for
plaintiffs.
ESCP might be “tempting” to use for Luxembourgish plaintiffs
against non-professional parties abroad,
2 remarks:
- Difference in jurisdiction rules with Art. 6 (2) EPO
- Difference with Brussels 1 bis (“refusal grounds”)
See hereafter:
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Remark 1: difference in jurisdiction rules with Art. 6 (2)
EPO
Article 6, 2 EPO: severe rule, more severe than rules ESCP. Seen this way, in
ESCP less protection regarding jurisdiction rules for “consumer”-defendants, as just rules
Brussels I bis and e.g. in cases by Luxembourgish lawyers many cases where
defendants not considered as “consumers” in the sense of Brussels 1 bis
(note: see, though, for more on the EPO-rule, below, including rules
on issues of enforcement of this rule).
(Moreover, requirement Luxembourgish special “OPA”-procedure that
defendant is domiciled in Luxembourg)
Thus: start a cumbersome ordinary procedure in Luxembourg? Start a
procedure (European/foreign national (ordinary or special) procedure abroad?
So, if Luxembourgish plaintiff, looking for possibility to start an “easy”
procedure in “own” country plaintiff: ESCP might be tempting for plaintiffs.
Thus, ESCP might be “tempting” for plaintiffs.
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Remark 2: violation of protective jurisdiction rules: no
“refusal ground” for consumers if erroneously applied
(difference with article 45 Brussels 1bis)
Looking at ESCP this way: ESCP “stripped-down” version of Brussels 1
bis, in this sense.
Seen this way: ESCP attractive for plaintiffs
(note: taking into account also that often said “consumer” “apathie” when sued abroad!? Issue here
circumstance that in principle written procedure: is circumstance encouraging/discouraging defendant
from reacting!?)
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(note: safety net defendant “review” – room for issues
of jurisdiction!?)
Article 18 ESCP: “review mechanism” (art 18 ESCP). But apparently,
seemingly no room for issues of jurisdiction in this mechanism.
(review article 18 ESCP: on service, force majeure …
(see also more on this in presentation Mr. Vincent Richard)
(Case law: tried already “language issues”)
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(note: language issues and review in ESCP)
See e.g.
Justice de Paix de Luxembourg, 3 avril 2015, n° 1553/15
Justice de Paix de Luxembourg, 20 décembre 2016, n°4802/2016, RPL 104/16,
Justice de Paix de Luxembourg, 13 juin 2017, n°2296/2017, RPL 231/16,
E.g. Decision 13 Juin 2017: German defendant asking for a review from the Luxembourgish court; argument: documents were
delivered to him in French, a language he did not understand)
Court responds : « Même à supposer que (…) ne comprend pas la langue française, cette circonstance ne saurait en elle-même
constituer un cas de force majeure ou une circonstance extraordinaire telle que prévue par l’article 18 b) précité, étant donné qu’il
lui aurait été loisible de consulter le modèle du formulaire de demande A en langue allemande figurant sur le site internet de
l’Union européenne, ce d’autant plus que le formulaire de réponse C lui a été notifié en langue allemande et qu’il était partant
parfaitement au courant qu’une procédure était lancée à son encontre. » (Justice de Paix de Luxembourg, 13 june 2017,
n°2296/2017, RPL 231/16, Case nr. 317)
“Assuming that (…) does not speak French, this fact by itself could not account for a case of force majeure or an extraordinary
circumstance as provided by the aforementioned article 18 b), since it was possible for them to look up the model form A in
German on the website of the European Union, all the more so because they were notified of the form C in German, and that they
were fully aware that proceedings had been initiated against them.”
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So, issues comparison ESCP with EPO and Brussels 1 bis
from this perspective: ESCP attractive to use in
Luxembourg
Issue comparison ESCP with EPO and Brussels 1 bis from this perspective: less
protection for consumer/non-professionals – defendants in context ESCP.
(more possibilities to start ESCP in Luxembourg against foreign defendant than in
EPO, and when consumer, no refusal ground as in Brussels 1 bis).
Thus: ESCP attractive for plaintiff, particularly when regarding jurisdiction rules!?
(remark in this context: see for possibly interesting case law on issues of check of
jurisdiction recent case Salvoni, with opinion (C-347/18, 4 September 2019, and
possibly also Weil (C-361/18, 6 June 2019) – as such not on ESCP or other second
generation regulations, but with possible reasonings when asking similar questions
regarding second generation regulations, looking at ressemblances/differences
between regimes?
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So: seen from this perspective ESCP attractive for plaintiffs
However, in a relativistic way: Luxembourgish judges check
competence when defendant does not “appear” (art 28 Brussels 1 bis).
Thus: judges not “easy” for plaintiff, check in any case competence
when no appearance (with note regarding e.g. cases of lawyers
claiming their fees)
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in any case, regardless how
“difficult”/”easy” Luxembourgish judges for
plaintiffs,:
Point of attraction to start proceeding in
Luxembourg:
• no court fees in Luxembourg
• Probably also: judges experienced in cross-border cases
(note: seen from this perspective, less need to “centralize” – as, in general – regarding other countries - lack of experience of judges with
instruments is often mentioned as a reason to centralize)
These 2 points of attraction might also be important in ESCP-procedures
commenced by consumers/non-professionals, see hereafter
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c) “Consumer” as a plaintiff, commencing an ESCP
(= ESCP-procedures by consumers)
• Case law – varied cases
• Usual problems (also present in Luxembourg) faced by consumers commencing
an ESCP:
lack of awareness, lack of knowledge, problems in filling out standard forms etc. …
(judges may be experienced in cross-border cases and familiar with instruments, consumers (/non-professional) themselves
are not
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Note on problems consumers in Luxembourg
Consumers sometimes, though, “helped” by judges, e.g. regarding
jurisdiction issues, who describe this as their professional task of
assistance; cfr. “mystery calls” to courts: said good experiences
(regarding jurisdiction issues: sometimes linked to discussion of centralization. Not so much an issue in
Luxembourg, where only three juges de paix (and where, as said, judges experienced. Some however in
favour of centralization)
But e.g. language problems consumers – e.g. regarding “open part” in
ESCP-form. English not officially accepted in Luxembourg! Forms but
“open part” – said that language issues sometimes reason to avoid
Luxembourgish courts
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c) “Consumer” as a plaintiff, commencing an ESCP - continuation
(= ESC-procedures by consumers)
• Cases of “consumers” against airlines
(claims compensation cancelled/delayed flights) – some victories for “consumers”
− Note: plaintiffs no “consumers” in sense of Brussels 1 bis; jurisdiction often based on article 7
Brussels 1 bis (CJEU Rehder)
(Rehder: C-204/08, 9 July 2009) – even case Luxembourg where Luxembourg not departure/arrival:
(in one case, the competence was (implicitly) accepted even though Luxembourg was just the original departure of a subsequent
second flight that was cancelled (see Justice de Paix de Luxembourg, 18 juillet 2018, n°2768/2018, RPL 118/17).
Several ESCP-cases against airlines often discuss the competence of the court – defendants sometimes replying, sometimes
absent and then check by Luxembourgish judge relying on article 28 Brussels 1 bis
− Note: recent case law on forum choices airlines – Belgian Supreme Court 8 February 2019;
(case C-629/18 Ryanair: removed from register CJEU)
(cases on strikes, pending case CJEU Ryanair C-735/18 and considered preliminary question
Luxembourg in ESCP-case Justice de Paix Luxembourg 21 janvier 2019, n° 650/2019)
(note: for a Luxembourgish EPO-case against airlines, see decision 30 June 2015; claim was
higher than ESCP-threshold at the time)
• Consumers (just) threatening the businesses with the commencement of an ESCP (threatening
that easy procedure, no need lawyer etc.)
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III. Conclusion
Is the ESCP to be considered a “working legal weapon used
by consumers”?
(Is it:
• an effective instrument used by (- and against? -)
consumers?
• a workable tool to enforce consumer rights (enhancing access
to justice)?
In EU-Member States – especially in Luxembourg?
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III. EPO in Luxembourg
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I. Issue of jurisdiction
High application also (as ESCP in
Luxembourg), but article 6, 2 EPO (issue of
jurisdiction) as a possibly refraining factor
I. Rule art 6, 2 EPO: concept of “consumer”
(wide!?) in, and absolute character of art. 6, 2
EPO: seemingly more protection for consumer-
defendant in EPO than in ESCP/Brussels 1 bis
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(Note on rule article 6, 2 EPO):
I. Luxembourgish case law: reference to case law CJEU on Directive consumer
protection
(reference to case law CJEU (“falling under scope Directive consumer”) to argue
that consumer contract in sense of art 6, 2 EPO)
(Note: regarding concept consumer in Directives/in jurisdiction rules Regulations, see i.a.
CJEU Vapenik (C-508/12), CJEU Pillar Securitisation (C-617))
II. (only?) condition art 6, 2: (defendant) non-professional (and if follow Vapenik (C-
508/12) on EEO: not C2C)
III. Seemingly (?) no additional requirements Brussels 1 bis (in any case these
requirements not mentioned/repeated in article 6,2 EPO) (thus also
protection for active consumers-defendants!?)
IV. In any case absolute rule (forum choice not allowed)
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II. So, severe rule, but: check, remedies article 6, 2 EPO?
Sanctions if rule not respected by plaintiff?? Issue: judge
relies on information by plaintiff – check at
a. stage request/
b. at stage review/
c. other stages??
.
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a. Luxembourgish judges seemingly check article 6, 2
EPO at stage request
said in interview with Luxembourgish judge: is
“educational” task judge
« Ils font cette analyse dans un but éducatif en
quelque sorte. »
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b. Luxembourgish judges check article 6, 2 EPO in
context review
(Attention CJEU Thomas Cook (C-245/14): CJEU quite severe
(cfr. Quote Professor Nourissat: “caractère impitoyable”, “prix à payer”:
Prof. Nourissat comment on Thomas Cook, quote: “On ne peut qu'approuver la Cour de justice dont l'arrêt est solidement étayé. Et souligner en définitive à nouveau le
caractère impitoyable de la procédure européenne d'injonction de payer. Son efficacité est probablement à ce prix et les débiteurs et leurs conseils ne doivent pas le sous-
estimer.)
But:)
Luxembourg: already checked jurisdiction rules and granted review because of violation of jurisdiction rule,
see Tribunal de Paix Luxembourg 30 June 2015, n° 2691/2015
(note: Tribunal de Paix Luxembourg 26 septembre 2017, nr. 3142: also assessed, but review not granted:
said that defendant was no “consumer” in sense article 6, 2 EPO because not acted as a non-professional)
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(Note on review and jurisdiction rules EPO)
* note: see e.g. also decision juge de Paix de Luxembourg 20 octobre 2015, nr. 3582, regarding
review because of violation of other jurisdiction rules (not about consumer issues but sales contract –
article 25 and 7, 1, b Brussels 1 bis)
* But see e.g. also reference in Tribunal d’Arrondissement Jugement Civil, 1ere Chambre, 17 Janvier
2018, n° 19/2018 to CJEU Thomas Cook, seemingly in sense that quite demanding before might
speak of “error”, judge not quickly reproached to have made “error”, not quickly reproached to have
made wrong assessment
“… En l’espèce … le tribunal estime que la vérification de la compétence par la jurisdiction d’origine
aurait nécessité un examen approfondi des circontances de fait …
… Par consequent, le tribunal retient qu’il n’est pas “manifeste” que l’injunction de payer européenne
… aurait été délivrée à tort au vu des exigences fixées par le règlement et rejette ce moyen.”
(so: difference between error as such in jurisdiction/error by judge in (quick) assessment?) (thereby
severe, demanding, regarding “error”, “fault”?)
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c. Luxembourgish judges check article 6, 2 EPO (even)
after contestation (stage “transfer”)!?
= remarkable practice
Rather start all over again here (see CJEU Flight Refund (C-94/14))!?
Note: CJEU Goldbet (C-144/12) (contestation does not mean tacit agreement for ordinary procedure)
followed in Luxembourg: Luxembourgish practice regarding this issue in line with case law Goldbet of CJEU,
but, so, remarkable practice Luxembourg: check article 6, 2 after opposition - and in this case law, when said
violation art 6, 2 EPO: courts stop procedure – instead of transferring to ordinary procedure and check
Brussels 1 bis!?)
general remark about transfer “dossiers en attente”:
Cfr; remark, note in Luxembourgish report on “transfer”of the case. See also remark during interview
with Luxembourgish judge, on the practice of the EPO in Luxembourg, about cases “en attente” as
none of the parties have taken actions once the court informed them of the opposition:
« L’opposition est faite, ils informent les parties des suites de la procédure et les deux doivent réagir
avant que les juges puissent faire quelque chose. Le plus souvent aucune ne réagit, souvent même le
demandeur. Le dossier est alors en attente. »
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II. Issue of pieces to be submitted
So: Luxembourgish judges rather severe with EPO regarding
jurisdiction
+ rather severe regarding pieces
said in interview with Luxembourgish judges: “judges
not instruments”:
« Il y a un risque que sans les pièces, le juge soit instrumentalisé. »
(and e.g.
« Il semble impossible alors de demander à quelqu’un de payer avant même d’avoir vérifié les pièces, selon elle, et ça
va à l’encontre de leur éducation en tant que juges. Cela peut être liée au contrôle automatisé tel qu’il est mentionné
dans les textes, qui transformerait le titre exécutoire en simple rappel de facture. »)
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Cfr. Issue of “abuse”
Quotes from interview with Luxembourgish judge:
“L’idée qu’on ne soit pas obligé de verser des pièces mais de
simplement les décrire invite à la fraude”
And quote from interview with lawyer:
(plaintiff) “peut dire n’importe quoi”
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Note:
in this light, perspective: pending case Bondora (C-453/18 and C-494/18)
particularly regarding Directive unfair terms, Spain, but
issue: what must/can judge do?
(previously: CJEU Banco Español de Credito (C-
618/10) – issue as such not addressed by CJEU; possible relevance CJEU
Szyrocka, C-215/11?))
(possible reasonings, argumentations from cases CJEU Salvoni (C-347/18)/Weil
(C-361/8)?)
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Note:
interview Luxembourgish judges: said that asking pieces is also in
interest plaintiff;
interview Luxembourgish lawyers: apparently often pieces
spontaneously sent by lawyers
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III. Issue of review
(and issue: streamlining in future with review mechanism ESCP?)
article 20 EPO includes aspect “error” (“clearly wrongly issued”) - not present in
ESCP
Streamline in future art 20 (par 1) EPO with review mechanism ESCP??
(regarding (service)), with/without keeping part (article 20 par 2) about errors?
if streamline (without keeping part about errors): no “safety net” anymore for
errors (such as jurisdiction) – is a bad thing? (importance jurisdiction with EPO - being a
written procedure?)
(regarding aspect article 20 “service” – see presentation mr. Vincent Richard)
regarding hypothesis/case CJEU Eco Cosmetics (C-119/13 and C-120/13) in
Luxembourg (CJEU: to be remedied by national law): see Luxembourgish case law
Tribunal d’arrondissement de Luxembourg, 21 mars 2017, nr. 78/2017 – several
interviewees: suggestion to include in legislation in order to make it more transparent
(Note: Tribunal de Paix Luxembourg 26 September 2017, nr 3142 about EPO
and language issue – not accepted as “force majeure” in context review)
CJEU, also on service, language and EPO: recently Catlin Europe C-21/17
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IV. Service issues
Service issues - issue receive AND understand
criticism on service EPO (by post) – huge importance
defendant being made alert in context EPO (as huge effect
reaction/lack of reaction defendant): might say that the protection of the
debtor’s rights of defense stands or falls on a sound and secure
service!?
problem (notified): comprehension of what received, what
must/can do?
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Said two extremes:
- See, ultimately, as publicity material
or
- Completely overwhelmed and intimidated as “coming from” a judge
Cfr. Quote interview Luxembourgish judge:
« Pour les injonctions de payer, on reçoit un formulaire avec des explications très longue que beaucoup ne comprennent pas ou
ne lisent même pas. Ce formulaire peut même sembler publicitaire et beaucoup ne comprennent pas la valeur de ce qu’ils
reçoivent. Ils ne s’en rendent compte qu’une fois que l’huissier leur explique que ce qu’ils reçoivent a la valeur d’un jugement. La
forme du formulaire induit en erreur, ainsi que le fait que le formulaire vient par la poste et non pas par un huissier.
Il y a l’autre extrême, certains comprennent de quoi il s’agit, mais n’osent même plus répondre et par peur croient qu’ils sont déjà
obligés de payer. »
and
“Le risque avec ces procédures, surtout qu’au Luxembourg elles sont gratuites, c’est qu’elles peuvent très facilement
impressionner, car elles sont signées par un juge. Ils pensent alors qu’il sont obligés de payer.”
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IV. Concluding
Two Achilles heels regulations:
- service – see more on this today i.a. in presentation mr.
Vincent Richard
- enforcement issues - see more today, e.g. presentation Mr.
Hinrichs
But first, before that: ESCP and EPO France, see presentation Mr.
Carlos Santaló
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50. EEO in France
MPI Luxembourg, 27 September 2019
Veerle Van Den Eeckhout

51. www.mpi.lu
Table of Contents
I. Some remarks on general features of the EEO
II. Some remarks on ressemblances/differences with Brussels 1 bis. EEO:
I. No exequatur (idem Brussels 1 bis)
II. Almost no refusal grounds (difference Brussels 1 bis)
III. Check by Court of origin (“instead”?)
I. Note: see e.g. CJEU Cornelius de Visser
II. Note: see e.g. CJEU Collect Incasso and Zulfikarpasic
III. Thus, seemingly severe - = kind of shift/…??
III. France EEO: additional value, enthusiasm?
I. On the one hand – criticism, resistance, reluctance etc.
II. On the other hand – practice notaries!
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I. Some remarks on general features of the EEO
EEO in general:
- was first of newborns at the time (chronologically);
first one of second generation regulations for cross border debt recovery (“Cross-border”:
not for purely national cases (with strict definitions)
But this, first, regulation, European enforcement order: not necessarily cross-border situation at the
beginning)) – see opinion CJEU Zulfikarpasic C-484/15 nr 25 on need or not of internationality –
touching, thus, issue of “availability” of regime
“25. Unlike Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a
European order for payment procedure, (5) Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July
2007 establishing a European Small Claims Procedure, (6) or even Regulation (EU) No 655/2014 of the European Parliament and
of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt
recovery in civil and commercial matters, (7) Regulation No 805/2004 does not impose any requirement relating to the cross-border
nature of the dispute, which more often than not means that at least one of the parties must be domiciled or habitually resident in a
Member State other than the Member State of the court seised. (8)”
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- this regulation creating a European Enforcement Order for
“uncontested” claims
Remark: “uncontested” = also, about “availability” regime – and also here
issue (cfr. first presentation) what is European/what is national) (cfr. some
more remarks on this below)
- when effectively obtained certificate as a European Enforcement
Order: (functions as a) kind of “European passport”; Allow to give a kind
of European Passport to decisions of a member state, providing these
decisions with enforceability in other countries, but under condition
that certain requirements have been met. In regulation, can find so-
called minimum-standards a judgment should have complied with (in
order to obtain that European Enforcement Order).
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II. Some remarks on ressemblances/differences with
Brussels 1 bis
I. (¨passport¨:) no exequatur
- cfr. currently Brussels 1 bis (thus questioned “raison d’être” – issue
additional value at this moment)
II. but EEO almost no refusal ground country enforcement
* (public order (lack of public order as a refusal ground in EEO
while still present in Brussels 1 bis: in interviews mostly not considered relevant)
* refusal ground jurisdiction weak party: not present in EEO; but
(at least) refusal ground consumer-jurisdiction (as at the time in Brussels 1) more or
less moved as condition (in situation as mentioned in EEO) to check by country
origin
III. (instead?) “country origin”, check there (and possibly withdrawal there)
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Some more remarks/thoughts on issue “court origin”:
- severe what to check etc. (/even more “severe” than Brussels 1 bis?)
(1) Cornelius de Visser C-292/10
(dictum:
“3. European Union law must be interpreted as precluding certification as a European Enforcement Order, within the
meaning of 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, of a judgment by default issued against a defendant whose
address is unknown.”)
CJEU in this case: comparison with Brussels 1, see nr. 66 of the judgment:
“66 As is clear from paragraph 57 of the present judgment, the defendant, by opposing, in accordance with
Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against him, will have the opportunity to
ensure respect for his rights of defence. That guarantee would, however, be lacking if, in circumstances such as those
of the main proceedings, a judgment by default issued against a defendant who was unaware of the proceedings was
certified as a European Enforcement Order.”
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(Note cfr. Also recently CJEU in judgment C-518/18 (Cornelius de Visser
recently confirmed in RD v SC, C-518/18)
nr 26-27:
“26 The Court observed that, in the light of Article 14(2) of Regulation
No 805/2004 and the objectives and scheme of that regulation, a judgment
by default issued in circumstances where it is impossible to ascertain the
domicile of the defendant cannot be certified as a European Enforcement
Order (judgment of 15 March 2012, G, C-292/10, EU:C:2012:142,
paragraph 64).
27 That conclusion remains valid despite the appointment of a guardian
ad litem for the purpose of the proceedings, by the referring court which
had been unable to obtain SC’s address.”)
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(2) see eg also Collect Incasso C-289/17 and Zulfikarpasic C-
484/17;) – severe, holding on to minimum standards regulation
(Collect Incasso: address court should be mentioned; issue not
mentioning address
Zulfiparsakov: issue notary, (un)contested; notary is not court, not
certificate if not consent
These: In same line as Cornelius de Visser? Rights of defense, severe,
strict, court of origin
- looking at (1) (Cornelius de Visser) and (2) (several other cases
on EEO): might say shift and severe, even more severe than
Brussels 1 bis??
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Note: cfr. Quote Prof. Hess in “50 years Bussels 1 bis”, G.
Van Calster (red), p. 41-42 discussing CJEU Collect Inkasso
and CJEU Zulfikarpasic:
“From a scholarly point of view, these decisions are not very compelling. However,
they demonstrate the firm intention of the Court of Justice to reinforce the right of
defence by strictly applying the standards guaranteed by these instruments. It
seems that the CJEU is aware of the imminent dangers of these regulations
which permit the direct cross-border enforcement of judgments without any
exequatur proceedings. Yet, in return, these procedures provide for a residual
control in the EU Member State of origin. Therefore, the Court of Justice has
reinforced the judicial control of the proceedings and of the substantial claim in the
Member State of origin where the enforceable title is rendered. This corresponds
to the underlying design of these instruments but the CJEU also clearly reinforced
the procedural guarantees of these instruments.”
So Prof. Hess: about risks of regulations, but reinforce rights defense, court origin
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(idea here might seem to be that court origin does what
otherwise done/possible afterwards; thus, would be pure
shift. But question: purely shift? Or deleted, abolished
(stripped down) – or conversely, even more severe?
(cfr. European procedures ESCP and EPO: swift, during procedure integrated,
assured, integrated? Must check there/can ask there (at origin) same (as in country
enforcement regarding Brussels 1 bis?) Caliber rules, task all actors there? Cfr. what
already mentioned regarding EPO and ESCP regarding possibilities to
check/remedy during procedure and presence/absence of remedies afterwards –
including issue of review in those procedures)
Regarding EEO: Cases Cornelius de Visser etc.: set the tone, representative,
(pure) shift from Member State enforcement to Member State origin – and
there very severe regarding rights of defense, protection of defendant?
Or is less, and kind of stripped down version of Brussels 1 bis?
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Note: comparison EEO-Brussels 1 bis, remarks:
* EEO, literature: in any case e.g. criticism Grusic lack of special protection
other category weak party i.e. employees - risk “undermine” Brussels I bis)
(but consumer concept in EEO (consumer protection in EEO, as condition
to be checked by court origin: more protective for consumer-defendant,
because also including active consumers?? CJEU Vapenik (C-508/12):
issue of (in)coherence EEO and Brussels 1 bis regarding C2C; but what
about difference active/passive consumer? (in EEO no additional
requirements Brussels 1 bis, thus broader concept consumer, thus more
protective?)
* opinion in recent case Salvoni (C-347/18): nr. 72 opinion comparison
Brussels 1 bis – EEO (consumer protection)
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III. France EEO – additional value of the EEO,
enthusiasm about this instrument?
Might say France:
“on the one hand” …
“on the other hand” …
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“on the one hand”: criticism, resistance, reluctance
etc.
* (Cfr. Also presentation Prof. Nourissat workshop MPI June 2018, cfr. case law)
problem understand/accept that (almost) nothing can be done in country
enforcement (regarding possibilities to contest etc.),
(cfr. “educational” role of case law French Cour de Cass, saying that EEOs cannot be contested in the
Member State of enforcement, but only where they have been issued)
(Cfr. EPO)
if France is country of enforcement: one should go to the country of origin to ask for a withdrawal of EEO,
to contest or ask a review of the EPO etc.
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(Note, remark in report: issue may be linked to issue of jurisdiction:
Reflection: the foregoing might be related to remarks about non-response by
defendants when they receive documents “from abroad”, in cross-border
procedures taking place abroad – especially when they are consumers.
Nevertheless, afterwards, it is “too late” to act and (almost) nothing is possible
anymore; (almost) no possibilities in country enforcement, (almost) no possibilities
court of origin; on this issue in context EPO, see already before, on art 6, 2 trying to
assure that takes place in country domicile defendant – but issue there check and
remedies)
The foregoing might, in turn, be linked with the rules of international jurisdiction in
the regulations.)
(Note: special rule in article 23 EEO – several cases on application of this article)
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* said also – e.g. in the context of the
discussion on the EEO in France - that there is
a “culture clash” between the “protection of
the plaintiff” (instead of/) rather than “protection
of the debtor-defendant,” - as regulations are
“pro-creditor”, versus French “pro-debtor”
orientation (more debtor-friendly) – this is
e.g. said in the context of the discussion on the
EEO in France (e.g. during workshop June
2018)
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* issue “uncontested”
issue “uncontested” – cfr. case law CJEU Pebros Servizi C-511/14 and Zulfikarpasic C-484/15 (and
recently (27 June 2019) RD v SC C-518/18)
(very recent: 27 June 2019) decision on EEO, “RD v SC”:
“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 must be interpreted as meaning
that, where a court is unable to obtain the defendant’s address, it does not allow a judicial decision
relating to a debt, made following a hearing attended by neither the defendant nor the guardian ad
litem appointed for the purpose of the proceedings, to be certified as a European Enforcement
Order.”
(Thus reconfirmed CJEU Cornelius de Visser:
26 The Court observed that, in the light of Article 14(2) of Regulation No 805/2004 and the objectives
and scheme of that regulation, a judgment by default issued in circumstances where it is impossible to
ascertain the domicile of the defendant cannot be certified as a European Enforcement Order (judgment
of 15 March 2012, G, C-292/10, EU:C:2012:142, paragraph 64).
27 That conclusion remains valid despite the appointment of a guardian ad litem for the purpose of the
proceedings, by the referring court which had been unable to obtain SC’s address.)
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Remark: issue of “uncontested”: also relates to
(already-mentioned) issue of “availability” of regimes (as was
mentioned in the beginning of the first presentation, on ESCP and
EPO),
and to issue of what is European/what is national, as also
already mentioned with other Regulations (Cfr. Presentation on EPO
and ESCP in Luxembourg)
All in all: seemingly reluctance etc.
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“on the other hand”: practice notaries!
Note: seems in line with case law CJEU C-484/15, Zulfikarpasic: only if
accepted, consented
French notaries seem to require express consent (express, explicit consent)
Cfr. Dictum Zulfikarpasic:
1. 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 must be interpreted as meaning that, in Croatia, notaries, acting within the framework
of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, do not fall within
the concept of ‘court’ within the meaning of that regulation.
2. Regulation No 805/2004 must be interpreted as meaning that a writ of execution adopted by a notary, in Croatia, based on
an ‘authentic document’, and which has not been contested may not be certified as a European Enforcement Order since it does
not relate to an uncontested claim within the meaning of Article 3(1) of that regulation.
(Thus, Remark: the practice of the French notaries seems to be in line with the case law of the Court, see CJEU C-484/15,
Zulfikarpašic, 9 March 2017 (in which the Court decided, i.a., that the EEO must be interpreted as meaning that a writ of execution
adopted by a notary, in Croatia, based on an “authentic document”, and which has not been contested may not be certified as a
European Enforcement Order since it is not related to an uncontested claim within the meaning of Article 3(1) of the Regulation):
French notaries seem to require express consent.)
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Usefulness of the EEO indicated by French notaries;
actual use of EEO by French notaries (even seems to
be a flourishing practice)
On this practice of French notaries particularly more by Mr. Cagniart -
but before, presentation on EEO in Luxembourg, and presentation Mr.
Hinrichs on Redress 17, results research several regulations (including
also EEO – and others such as ESCP, (EPO) and Brussels 1 bis)
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