The European Parliament and the Council adopted on 12 December 2006 the Regulation (EC) No 1896/2006 establishing a European proceeding for injunction order aimed to rapid and effective collection of commercial claims arisen from cross-border legal disputes – in which at least one of the parties' domicile or residence is in one of the European Union Member States and it is different from that of the court seized (except from Denmark).
The European injunction is issued upon creditor's request in order to obtain the fulfilment of his/her obligation, such as payment of a sum of money.
The European enforcement procedure is merely optional and yet not substitute for the national procedure of injunctive relief. This is to say that such a procedure does not prevent the creditor, whenever certain conditions are met, from recourse to other debt collection procedures subject to European and national regulations.
With the introduction of this procedure, the objectives of the European legislator were simplification, speed-up and cost reduction of procedures for cross-border disputes concerning pecuniary claims (debt collection procedures) not subject to objection, and in addition the will of guaranteeing free circulation of European injunction orders in all States, except from Denmark.
Therefore, the establishment of the European injunction regards only those uncontested claims.
This regulation applies if the following conditions are fulfilled:
- civil and commercial matters (procedures of customs, administrative, fiscal, bankruptcy matters are not covered, as well as agreements and similar procedures, wills and testaments, inheritance and social security);
- in presence of cross-border disputes, that is one of the parties' domicile or residence is in one of the Member States, which is different from that of the court seized, with the exception of Denmark;
- the claim for which protection is sought shall be pecuniary in nature, of a fixed amount and due (that is of a certain fixed sum and not subject to any term or condition, as well as payable on the date for which the request for European injunction is submitted), uncontested by the debtor and of a contractual nature, as the Regulation exempts extra-contractual claims.
PROCESS OF ISSUING OF EUROPEAN INJUNCTION
The application for European injunction order, aimed at obtaining the European injunction, may be submitted by means of a standard application form, attached to the Regulation, before the competent court, to be determined in accordance with the EU legislation contained in the Regulation No 44/2001.
In the application for European injunction, the following content shall be listed:
- name and address of the parties, and, if applicable, of their representatives, as well as the court whom the application is submitted to;
- the claim amount and, if applicable, interest, contractual penalties and costs;
- in case interest on the claim are required, interest rate and time period for which the interest is demanded;
- the cause of action, including a description of the circumstances invoked as the basis of the claim;
a description of evidence supporting the claim;
- grounds for jurisdiction;
- the dispute cross-border nature.
In particular, it should be noted that Italy accepts the application for European injunctions only if submitted on paper form and in Italian language.
Once the required conditions are examined, the Court may:
- reject the application for different reasons, as procedural, general (lack of jurisdiction for instance) albeit rare of merit.
The rejection of the application shall not be right of appeal.
- approve the application and in this case issue the injunction order on a ready-drafted form, within 30 days from date of submission.
The issued European injunction will be notified to the debtor, who may pay or oppose the injunction order within 30 days from the date of notification.
If the debtor does not oppose, the European injunction will become enforceable in the State of origin and will be recognised in all Member States (without a necessary declaration of enforceability and without being possible to oppose its reconsignment), as well as transmitted to the applicant.
OBJECTION TO EUROPEAN INJUNCTION
The eventual objection to the European injunction shall be put before the Court who issued it, by filling – in this case as well – a standard form envisaged by the regulation. The objector shall not be required to specify the reasons of the objection.
In that event, the European injunction will lapse but a new proceeding for debt collection will begin before the competent Courts of the Member State of origin, in accordance with the rules of ordinary civil procedure therefore, a full-knowledge proceeding that extends to the substance of the opposed claim and to the exceptions raised by the objector.
Do you wish to receive additional information about the European Injunction and how to submit the application or make an objection? Contact us.