The European Parliament and Commission’s Regulation 1896/2006 on European Non-Judgement Enforcement Procedure published in the Official Gazette on 30.12.2006 entered into force on 31.12.2006. On 12.12.2008, it became binding for member states. The purpose of adopting the European Code of Judgmentless Enforcement Proceedings is to adjudicate and facilitate the execution of transboundary, uncontested money receivables.
Application Area and Procedure of the European Judgmentless Enforcement Procedure
As stated in Article 2 of this regulation, AİİU can only be applied in legal and commercial transboundary business. However, the type of judgment does not matter here. In other words, it does not matter whether it is a general court or a labor court.
Cross-border legal matters exist when at least one of the parties is domiciled or habitually resident in a Member State other than the country of the court of appeal (Article 3, I of the ECHR). The domicile or habitual residence, pursuant to Articles 59 and 60 of the Regulation of the Council of the European Union on the Jurisdiction of Courts in Legal and Commercial Matters and the Recognition and Enforcement of Judgments, Art. 3 is determined according to II. EAIT does not apply purely on national legal issues
In terms of transboundary legal and commercial affairs, many exceptions have been envisaged regarding the non-implementation of the AIT (Article 2, II). These are issues related to marital property regime, inheritance law, bankruptcy and insolvency liquidation, and social security law. In principle, only the claims arising from contractual debt relations remain within the scope of the Regulation. For claims arising from non-contractual debt relationships, the European enforcement procedure without judgment is valid only if they are the subject of a contract or acknowledgment of debt between the parties or if they arise from joint ownership of the immovable.
A limitation has also been introduced with Article 4. Pursuant to this article, AİİU is an element that can only be operated for a certain amount and due at the time of application.
AİİT m. 6, I, the international jurisdiction of the enforcement court is in principle determined by its provisions. Pursuant to the first paragraph of Article 2 of the aforementioned Council of the European Union’s Regulation on the Jurisdiction of Courts in Legal and Commercial Affairs and the Recognition and Enforcement of Court Decisions, the courts of the member state, regardless of their citizenship status, in terms of proceedings against a person whose domicile is within the jurisdiction of one of the member states. is authorized. But m. 3, I’s m. It can also be concluded that another court is competent because of its reference to 5-24 (for example, place of execution of a contract, place of tortious act). If the claimed receivable arises from a contract and the debtor of the contract is also a consumer, then only the courts of the member country where the consumer is domiciled are deemed to have international jurisdiction (Article 6, II of the AİİT). This regulation serves to protect the consumer. The consumer cannot be compelled to defend himself before the court of another member state.
The substantive, local and functional jurisdiction of the enforcement court is not regulated in the AIT. Therefore, these powers are determined by the national law of the member states whose courts have international jurisdiction.
APPLICATION FORM AND PROCEDURE
The European enforcement procedure without judgment begins only upon application. For the application, it is absolutely necessary to use the Example-A (AXXEN-1) form attached to the European Code of Enforcement without Writ (Article 7, I of the AİİT). The application must be signed. There is no obligation to hire a lawyer in order to make an application (Article 24 of the AİİT). AİİT m. In accordance with 7, IV, the creditor may declare to the court that he has refused to transfer the execution without judgment to the general court in case of objection of the debtor. However, he can then make this statement until the payment order is issued.
What are the compulsory elements that must be applied for? APIT m. It is specified in 7, II.
Accordingly, the application must contain, inter alia, the following information:
Amount of receivable (principal receivable, interest, contract penalty and expenses),
Information about the event on which the claim is based and the subject of the dispute,
What the evidence consists of to prove the existence of the claim. Evidence (eg promissory notes) need not be attached.
The creditor must also declare that he accepts the sanctions stipulated in the law of the member country of origin due to the information he has disclosed to the best of his ability and deliberately given false information (Article 7, III of the APHR).
The AIT does not stipulate that the application must be made in a specific language. For this reason, the language in which the application should be made will be determined according to the national laws of the member country.
While applying for a European payment order, court costs, determined according to the laws of the member state, must also be paid (AİİT general justification article 15)
REVIEW OF THE APPLICATION
The court applied for the enforcement without a verdict shall determine whether the application falls within the scope of the AİİT’s regulation, whether it is authorized or not, and whether it is within the scope of the AİİT art. 7’d
e examines whether the prescribed form conditions have been fulfilled (Article 8 of the AİİT). The court also examines whether the request seems justified (Article 8, c. 1) of the ECHR. This enables the court to accurately examine whether the claim is justified (Article 16 of the ECHR, c. 2).
POSSIBLE DECISIONS BY THE COURT
Giving the Opportunity to Correct Correction
If the application is AIT m. If it does not meet all the conditions regarding the form and content listed in Article 7, APIT m. 9 provides for a special correction procedure. Accordingly, the enforcement court cannot immediately reject the application. Rather, it allows the creditor to complete or rectify the application within an appropriate timeframe. Correction is done with printed forms. For this, the court uses Example-B (ANNEX-2) in the AITT Annex.
Invitation to Change Application
If the application conditions are met only for part of the claim, the court notifies the creditor of this. For this purpose, Example-C (ANNEX-3) in the Annex of APIT is used (Art. 10, I of APIT). The enforcement court asks the creditor to accept or reject the partial amount shown in the payment order. The creditor responds by sending the printed form back to the court within the time determined by the court. If the creditor accepts the court’s proposal, the court issues a European payment order based on the amount accepted by the creditor. The fate of the remainder of the request shall be determined by the law of the Member State. On the other hand, if the creditor refuses or does not respond to the court’s invitation, the court rejects the request for a European payment order in its entirety (Art. 10, III of the ECHR). The creditor is informed about this legal result with the Sample-C sent to him. (Article 10 of the ECHR, I, c. 2).
Refusal of Application
AİİT m. If the conditions listed in 2, 3, 4, 6 and 7 (field of application, international jurisdiction, form and content of the application) are not fulfilled at the time of application, the court rejects the request for a European payment order (Article 11, I, c. 1 of the ECHR). /a). If the claim put forward is clearly unfair or the creditor does not make the necessary correction within the determined period, or the application is rejected. The creditor is informed of the grounds for refusal in Example D (ANNEX-4) in accordance with Annex IV.
There is no legal remedy that can be taken against the decision to reject the application (Article 11, II of the AİİT). On the other hand, if supervision is foreseen within the same jurisdiction in national law, it can be resorted to. For example, if it is rejected by the German Court, there is an audit trail. In German courts, the decision is made by the Associate Justice. Against this, the Assistant Justice Officer Act m. 11, II can be appealed within 2 weeks. The Assistant Justices Officer may accept the appeal; If he does not, he submits the file to the judge (first instance court) for a decision. The judge decides the objection definitively.
Issue of European Payment Order
As a result of the examination of the application, depending on the situation, AİİT m. After the completion, correction or modification of the application pursuant to 9, 10, the Application,
If it falls within the scope of the European enforcement procedure,
If the court is competent,
If the application has the necessary conditions in terms of form and content,
If the claimed claim does not appear to be manifestly unjustified,
The Court issues a European payment order (Art. 12, I, v. 1) of the ECHR. The payment order decision is made as soon as possible and, as a rule, within 30 days of filing the application. The time required by the creditor to correct or change the application is not included in this deadline (Art. 12, I, c. 2). For the European payment order, Example-E (AXXEN-5) in the AIT Annex is used.
LEGAL REMEDIES BY THE DEBT
Appeal Against a European Order for Payment
Borrower, AİİT m. 16, I may appeal against the payment order before the court of origin. The objection must be made within 30 days from the notification of the payment order. The period is also preserved if the objection is submitted within the deadline.
Upon a duly filed objection within due time, the enforcement procedure without judgment automatically turns into a normal case before the court of the Member State of origin. No special request is required for this. However, a different procedure may be prescribed in the domestic law of the country where the competent court is located.
Exceptional Inspection
This legal remedy is only permissible in three exceptional cases:
AİİT m. If the notification made pursuant to 14 is made without proof of receipt by the debtor, and this notification was not made at a time when the debtor would need it to be able to defend it, without the fault of the debtor.
If the debtor could not make an objection without fault due to force majeure or extraordinary circumstances,
If the European payment order is clearly unjustified in accordance with the conditions set forth in the AITT or due to other extraordinary circumstances (AITT art. 20, II). An example of these extraordinary situations is when the European payment order is based on incorrect information in the application form.
There are two possibilities as to the content of the decision on the control request: If A
IIT m. 20, I, II, the application is rejected if the necessary conditions for the control are not met. In this case, the European payment order remains valid (Art. 20, III, c. 1) of the ECHR.
In contrast, the court, control, AIT m. 20, I, II, it decides that the European order for payment is null and void (Art. 20, III, c. 2). Thus, the European execution procedure without judgment comes to an end (AMUY art. 1093, III); Otherwise, it will not turn into a contentious judgment.
ENFORCEMENT and RECOGNITION
If no objection is made in due time, the court declares without delay, using Example-G in accordance with Annex VII, that the European order of payment is enforceable (Art. 18, I ECHR). In addition to the 30-day objection period, the court waits for an appropriate period of time required for the submission of the objection before making the enforcement decision (Article 18, I of the ECHR). Because in order to comply with the 30-day period, it is sufficient to send the appeal petition on time. Thereafter, no appeal can be made against the enforceability decision.
The enforceable European payment order is sent to the creditor (Article 18, III of the AİİT). European order of payment declared to be enforceable in the member country of origin, AIT m. 19, it may also be recognized and enforced in another Member State without a decision on enforceability. Regarding the enforcement procedure, the law of the member states in which the enforcement is to be carried out applies (Art. 21, I of the AİİT).
If enforcement is requested in another member state, the creditor submits to the authorized enforcement body a copy of the European payment order annotated and, where necessary, its translation into the official language of the member country where enforcement is requested (Art. 21, II/a,b). Each Member State may separately regulate whether it accepts translations in another official language in addition to its own official language.
AİİT m. Under certain circumstances, the debtor may refrain from enforcement by the competent court upon the request of the debtor. The refusal from enforced enforcement comes to the fore primarily when there are contradictory judgments, that is, if the European payment order is in contradiction with a previous court decision or a previously issued payment order (Article 22, I of the ECHR). The conflicting decision must meet the conditions for recognition in the member state where the enforced execution will be carried out. It should also be noted that the conflict in question has not yet been brought before the court in the Member State of origin. Therefore, this situation requires the debtor to have learned of the existence of the conflicting provision after the expiry of the objection period at the earliest.
Forced execution also ends when the debtor pays the amount included in the European payment order to the creditor (Art. 22, II of the AİİT). On the other hand, the European order of payment cannot be checked on the merits in the member country where the enforced execution will take place (Art. 22, III of the AİİT). Abstention from enforced execution is ruled by an interim decision.
Borrower, AİİT m. If it requests control in exceptional cases regulated in Article 20, the competent court may, upon the request of the debtor, limit the enforcement procedure to security measures in the member country where the enforcement is to be carried out (Art. or in case of extraordinary circumstances, it may postpone the enforcement procedure (Article 23/c of the AİİT). The court gives an interim injunction in this regard.
