CEPEJ(2015)10
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
(CEPEJ)
Good practice guide on enforcement of judicial decisions
As adopted at the 26th CEPEJ Plenary Session
10-11 December 2015
Good practice guide on enforcement
Guillaume Payan[1]
Lecturer and researcher at the University of Toulon
Member of the Jean-Claude Escarras Comparative Law and Politics Centre (CDPC-JCE), French National Centre for Scientific Research, Joint Research Unit 7318 on International, Comparative and European Law (UMR CNRS 7318 DICE)
1. Entrusting the conduct of enforcement processes to enforcement agents
1.1. The scope of enforcement agents’ functions
1.1.1. Enforcement of enforceable titles
1.1.2. Enforcement agents’ secondary activities
1.2. Statutory guarantees for enforcement agents
1.2.1. Rules on vocational training
1.2.1.1. Content of vocational training
1.2.1.2. Vocational training infrastructure
1.2.2. Rules on how the profession is to be exercised
1.2.2.1. Rules on the organisation of the profession of enforcement agent
1.2.2.2. Rules on how enforcement agents’ activities are to be monitored
2. Ensuring that the parties fully understand the enforcement process
2.1. Informing the parties about the enforcement process
2.1.1. Informing the parties about the applicable legislation
2.1.2. Informing the parties about enforcement processes in which they are involved
2.2. The intelligibility of the applicable legislation
2.2.1. Clarity of procedures
2.2.2. Clarity of costs
3. Ensuring the quality of enforcement procedures
3.1. The requirement for enforcement procedures to be high quality
3.1.1. The efficiency of enforcement procedures
3.1.1.1. Effective access to enforcement procedures
3.1.1.2. Information on debtors and their assets
3.1.1.3. Factors contributing to speedy enforcement
3.1.2. The need for enforcement procedures to be fair
3.1.2.1. Rights and obligations of debtors when enforcement procedures are being carried out
3.1.2.1.1. Ensuring that debtors’ rights are respected
3.1.2.1.1.1. Encouraging debtors to be involved in enforcement procedures
3.1.2.1.1.2. Protecting the right to privacy of debtors and their families
3.1.2.1.1.3. Securing decent living conditions for debtors and their families
3.1.2.1.2. Punishing debtors’ misconduct and offences
3.1.2.2. Rights and obligations of third parties during the course of enforcement procedures
3.1.2.2.1. Ensuring respect for the rights of third parties
3.1.2.1.2. Establishing third parties’ obligations and punishing breaches thereof
3.2. Control of the quality of enforcement procedures
4. Promoting the use of common legal terminology on enforcement
Appendix: Glossary
2. In its leading judgment in the case of Hornsby v. Greece of 19 March 1997 (application no. 18357/91), the Court asserted that the right of access to a court “would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6§1 should describe in detail procedural guarantees afforded to litigants … without protecting the implementation of judicial decisions. … Execution of a judgment given by any court must therefore be regarded as an integral part of the ‘trial’ for the purposes of Article 6”. Through this judgment the European Court establishes a European right to the enforcement of judicial decisions on the basis of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. In several supporting decisions, the Court precised the scope of this right and extended it to situations in which the enforcement of judicial decision is directed towards a private person (for instance, in the judgment Lunari vs Italy of 11 January 2001, case n°21463/93).
3. Alongside the case-law of the European Court, the Council of Europe’s activities in this area have taken tangible form in Recommendation Rec(2003)17 of the Committee of Ministers to member states on enforcement (adopted by the Committee of Ministers on 9 September 2003 at the 851st meeting of the Ministers’ Deputies).The aim of this recommendation was to set European standards with regard to enforcement in civil and commercial proceedings. It comprises rules intended to enhance the efficiency of the enforcement process and rules relating to the status and the functions of “enforcement agents”. More generally speaking, it provides a general framework to which the Council of Europe member states are invited to refer when drawing up or amending their national legislation on enforcement.
4. In the wake of the recommendation, the European Commission for the Efficiency of Justice (CEPEJ), whose statute includes the aim of facilitating the implementation of the Council of Europe’s international legal instruments concerning efficiency and fairness of justice, added enforcement of judicial decisions to the list of its priorities. In practice this resulted firstly in the preparation in 2008 of a comparative law study overseen by the CEPEJ on the enforcement of court decisions in Europe (J. Lhuillier, D. Lhuillier-Solenik, G. Nucera and J. Passalacqua, Enforcement of Court decisions in Europe, CEPEJ Studies n°8, Council of Europe) then in the establishment that same year of a group of specialists (the working group on enforcement of judicial decisions, CEPEJ GT-EXE). The work carried out by these experts resulted in the preparation in 2009 of the “The Guidelines for a better implementation of the existing Council of Europe recommendation on enforcement” (CEPEJ(2009), 11REV2, 17 December 2009, adopted by the CEPEJ at its 14th plenary meeting, in Strasbourg, on 9 and 10 December 2009)[2]. The goal of these Guidelines was to ensure the effectiveness of the European enforcement standards set in Committee of Ministers Recommendation Rec (2003) 17. For this purpose, they look at the issue of enforcement from an integrated, all-embracing viewpoint, bringing together the principles governing enforcement procedures and those that are of interest to the professionals responsible for implementing them into a general discussion. Taken together the 82 points in these Guidelines are intended to lay the foundations for a system of enforcement striking the right balance between the rights of creditors and debtors.
5. To date, no Council of Europe member state has yet complied with all of the Enforcement Guidelines. In response, the CEPEJ and its Working Group on the Quality of Justice in particular, decided to take a new step in its work to deal with the issue of enforcement by drawing up a Good practice guide on enforcement. Having devised an “ideal enforcement system”, intended to inspire the Council of Europe member states, the aim now is to work towards the acceptance within domestic law systems of the principles and solutions enshrined in the Enforcement Guidelines of 2009. This Guide does not aim to create new standards at the Council of Europe level. It just aims to highlight certain solutions applied in member states.
6. In this document, the term “good practice” should be understood as follows. Firstly, the word “practice” is used in a broad sense. It refers to various sources of law (laws, regulations and case-law) and not just to professional practices. When combined with this first word, the adjective “good” refers to approaches adopted in one or more member states, which give satisfaction in terms of respecting both private interests (particularly those of creditors and debtors) and general interests (such as legal certainty, public order and economic prosperity). More specifically, the term “good practice” is used here to designate national approaches which are entirely in keeping with the principles and objectives on which the Enforcement Guidelines are based. These approaches have currently been adopted to varying extents across Europe. If they were adopted in all the member states, this would do much to increase the effectiveness of national enforcement systems while promoting the values on which the Council of Europe is based.
7. Consequently, this guide should not be considered separately from the Enforcement Guidelines and the Recommendation of the Committee of Ministers which preceded it. It pursues the same aim of improving the quality of enforcement per se in the Council of Europe and applies to the same field.Firstly therefore, it relates only to civil proceedings, and not to criminal and administrative cases (the latter being covered by Recommendation Rec(2003) 16 on the execution of administrative and judicial decisions in the field of administrative law, adopted by the Committee of Ministers on 9 September 2003 at the 851st meeting of the Ministers’ Deputies). Secondly, the good practices it lists relate to the enforcement both of judicial and non-judicial decisions (such as notarised instruments)[3].
9. The good practices described in this document can be divided into four main categories. The first derives from the assertion that enforcement agents should have full control of enforcement operations. The second is a general recommendation to the Council of Europe member states to ensure that the enforcement process is understood by all the parties. The third is related to improving the quality of enforcement procedures and the need for regular quality control. The fourth is to do with promoting the use of common legal terminology to describe enforcement procedures.
1. Entrusting the conduct of enforcement processes to enforcement agents
1.1. The scope of enforcement agents’ functions
1.1.1. Enforcement of enforceable titles
10. In point 33 of the Enforcement Guidelines it is stated that “enforcement agents, as defined by a country's law, should be responsible for the conduct of enforcement within their competences as defined by national law[4]”. It is also specified that “member states should consider giving enforcement agents sole competence for … enforcement of judicial decisions and other enforceable titles or documents [and] implementation of all the enforcement procedures provided for by the law of the state in which they operate”.
11. Partial removal of enforcement processes from the control of the courts. In accordance with this provision of the Guidelines (and with point 67[5]), in most European countries’ national legislations[6], enforcement of enforceable titles is not, in principle, subject to prior authorisation by a court and enforcement procedures do not systematically take the form of a court trial. The division of tasks between enforcement agents and judges is arranged as follows. Firstly, again in most European countries’ national legislations, in addition to carrying out the actual processes of enforcement, enforcement agents check that the prerequisites for the enforcement of the titles referred to them are in place and supervise the organisation of the enforcement procedure. Furthermore, save in exceptional circumstances, courts are only involved if they have to settle one of the disputes to which enforcement operations can always give rise or to issue certain authorisations (for instance when the enforcement operations have to take place on premises used as a dwelling by a third party). This division of tasks helps to ease congestion in the courts and hence speed up enforcement without overlooking debtors’ rights (whose obligations are set out in an enforceable title). Furthermore, it gives the enforceable title its full worth as a basis for proceedings.
12. Centralisation of the enforcement function. In several member states[7], one and the same professional (the enforcement agent) is responsible for carrying out most if not all enforcement procedures provided for in national legislation. This approach appears making the enforcement process easier to follow for litigants, whether they are involved as creditors, debtors or third parties. It also seems to help striking the right balance between the rights of creditors and debtors. In this kind of centralised enforcement system, acting enforcement agents have a more complete overview of the debtors’ circumstances and their relationship with their creditors. Their influence over the procedural strategy for the recovery of debts is increased. Hence, it appears that this solution allows enforcement agents better advise creditors on what measures to apply and hence that the most appropriate methods are used in any given case.
1.1.2. Enforcement agents’ secondary activities
13. The multidisciplinary nature of enforcement agents’ tasks. In accordance with the provisions of point 34 of the Enforcement Guidelines, in addition to their main task of enforcing enforceable titles, enforcement agents should be able to carry out a broad range of “secondary activities” which are compatible with their functions (such as debt recovery, voluntary sale of moveable or immoveable property at public auction, seizure of goods, recording or reporting of evidence, and bankruptcy procedures). Currently, although enforcement officers perform at least one of these activities in all the member states[8], there are major disparities between countries. For example, whereas in most states these professionals have powers relating to compulsory public auctions, only a minority of countries provide for them to be able to represent parties in courts, draw up private deeds and documents, act as mediators or participate in bankruptcy procedures.The Council of Europe member states could therefore broaden enforcement agents’ powers to include tasks relating to all the aspects of enforcement in the broadest sense and enable these professionals to provide a “full service” to the public in this sphere. This would potentially simplify procedures for both creditors and debtors.
14. The probative value of documents drawn up by enforcement agents. As part of their work of enforcing enforceable titles or serving procedural documents or their secondary activities (particularly their factual reporting activities), enforcement agents draw up documents in which they describe their personal findings and their actions. States could establish the conditions under which such documents can be given probative value so as to discourage challenges filed as delaying tactics and to promote legal certainty.
1.2. Statutory guarantees for enforcement agents
15. When member states make a diversification and an extension of enforcement agents’ tasks, it looks appropriate that provision tis made in national law for statutory guarantees making it possible to ensure the quality of these agents’ work when performing their functions. In this regard, member states could notably pay attention to training and the proper exercise of the profession of enforcement agent.
1.2.1. Rules on vocational training
1.2.1.1. Content of vocational training
16. Relevance of the training to needs. All initial or in-service theoretical and/or practical training[9] for enforcement agents (and their employees) should be geared to the needs revealed by the practical performance of the various tasks entrusted to them.
17. High level of vocational training. To the extent it is necessary to meet the needs stemming out from daily practice, foreseeing a high level of vocational training for enforcement agents is warranted not only by the complexity of the rules governing civil enforcement procedures and the diversity of the tasks assigned to such agents but also by the trust and the respect that they must inspire in the public.In this respect, states may, for example, consider aligning the level of training of enforcement agents with that of the other legal professions (lawyers, notaries or judges). Likewise, in addition to attending courses on the various enforcement procedures and their practical implementation, (future) enforcement agents could be trained in conflict management techniques and in mediation.
18. Work placements for candidates to become enforcement agents. To complement their initial theoretical training, all candidates to become enforcement agents should perform a work placement with a serving agent. This placement, which should be of a sufficient length for candidates to be able to acquire the basic practical knowledge needed for them to perform their future tasks, enables them to be placed in real-life situations and be confronted with the realities of the profession. In order to check that the requisite knowledge has been assimilated, professional examinations could be held at the end of this training.
19. In-service training. A system of in-service training could be set up, not only for serving enforcement agents (for whom such training should be compulsory) but also for their employees (particularly professionals to whom the law allows enforcement agents to delegate some of their tasks).
1.2.1.2. Vocational training infrastructure
20. Co-ordination of training bodies. Initial and in-service training for enforcement agents may be offered by several different service-providers (universities, professionals themselves, etc.). States could promote measures to co-ordinate these bodies as a way of harmonising the training on offer (such as “public-private” partnerships between universities and training facilities set up by enforcement agents’ professional organisations). Similarly, they might also encourage the establishment of specific bodies entirely given over to training for these professionals (such as the National School of Procedure established in France in 1960).
1.2.2. Rules on how the profession is to be exercised
1.2.2.1. Rules on the organisation of the profession of enforcement agent
21. Distribution of enforcement agents throughout countries. The member states should share their thoughts about the combined issue of the geographical scope of enforcement agents’ jurisdictions and the risk of legal desertification. In several member states[10], enforcement agents have a wide geographical jurisdiction, which can extend to the whole country. However, as jurisdictions grow, agents combine to form large groupings (at least, when they have their own private practices) and small and medium-sized practices gradually disappear, resulting in a decline in the number of practices (for example in the Netherlands and in England).
Such groupings do have their advantages. For example, they can be viewed as a means of countering the risk that some creditors will manipulate certain enforcement agents. However, when combined with the ongoing trend towards the dematerialisation of enforcement procedures, this phenomenon can lead to geographical restructuring and result in radical changes. There is a genuine risk of desertification in rural areas and small towns. However, a certain geographical proximity of the executing agency is likely to promote a dialogue with debtors and to take into account the specific situation of the latter.
1.2.2.2. Rules on how enforcement agents’ activities are to be monitored
22. Professional conduct of enforcement agents and the establishment of quality standards.So as to ensure that the public is fully aware of enforcement agents’ professional duties, the Council of Europe member states could establish quality standards, set out in some detail and in a language accessible to everyone, and disseminate them as widely as possible.Codes of conduct might also be drawn up.
23. Disciplinary rules applying to enforcement agents. Thorough disciplinary rules[11] instil trust in the public towards enforcement agents. States could see to it that there is effective access to disciplinary procedures and that they are conducted in a manner that guarantees the proper administration of justice (complying with the requirements of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights). Similarly the possible penalties should be legally defined and sufficiently varied to enable the competent authority to impose the most appropriate penalty in view of the seriousness of the conduct of which the agent is accused. It should also be possible to appeal against such penalties.
24. Monitoring bodies. States could clarify the division of tasks between the various bodies (courts, enforcement agents’ representative organisations, etc.)[12] responsible for monitoring compliance with the statutory rules applying to enforcement agents. In this regard, where representative bodies of the profession of enforcement agent are competent, such bodies should take the form of legal bodies governed by public law or be placed under the surveillance of the State.
The States might also consider the possibility of setting up independent administrative bodies with special responsibility - in first instance - for the supervision, monitoring and discipline of enforcement agents (like, for example, the Portuguese Commission for the Supervision of Law Officers - Comissão para o Acompanhamento dos Auxiliares da Justiça). In such a situation, judicial review of decisions issued by these authorities should be expected.
2. Ensuring that the parties fully understand the enforcement process
2.1. Informing the parties about the enforcement process
2.1.1. Informing the parties about the applicable legislation
25. Bringing together the main rules in a single document. Full information about the applicable legislation is the first step towards understanding and control of the enforcement process. Such information must be easily accessible. For this purpose, the member states may wish to draw up a code (such as France’s Code of Civil Enforcement Procedures) or a law (such as Spain’s Ley de enjuiciamiento civil), bringing together if not all the rules on enforcement procedures then at least the main provisions on the subject. A compilation of this sort also would have clear benefits for the professionals and authorities tasked with implementing these procedures or ensuring that they are properly applied.
26. Dissemination of fact sheets. Information about national legislation can be communicated to the parties through practical, concise fact sheets on the various enforcement procedures and the professional organisation and tasks of enforcement agents. Ideally, such fact sheets should include extracts from the relevant case-law of national and international courts (such as the European Court of Human Rights), whose importance should not be overlooked, particularly where it comes to the actual enforcement of enforceable titles. Descriptions of real cases may help the public to understand the rules that apply.
If they are to achieve their goal, such sheets should be drawn up in a language that everyone can understand. They may also provide information on the real effectiveness of each type of procedure (such as average length and cost) and should not be confined to a simple description of the rules in force.
2.1.2. Informing the parties about enforcement processes in which they are involved
27. Whether creditors or debtors, the parties should be able to understand the enforcement process in which they are involved and be made aware of the various options open to them and the legal consequences thereof[13].
28. Written explanations for the recipients of official notices. The member states could take measures (such as stipulating that otherwise the procedure will be void) to ensure that all notices served on debtors or third parties during enforcement procedures describe the potential consequences if they do not comply and any possibility that they may have of entering an objection. This description may also outline the time limits before which objections must be entered and state which court has jurisdiction to rule on them. To be suited, all information of this sort should appear in very visible characters and be drafted in a language that can be easily understood by everyone.
29. Providing oral information for the recipients of documents. To be sure of the good understanding of this document by his recipient (for instance, the debtor or the third party through which the enforcement measure is to be carried out), where an enforcement agent hands a procedural document directly to the recipient he or she could be required to repeat the main information set out in this document orally (such as the consequences of the document and the possibility of disputing it, etc.). For more legal certainty, it might equally be stipulated that the document handed over must specify that this formality is to be completed.
30. Information and advice for creditors. National legislation could set out a duty for the enforcement agent to keep creditors informed on the progress of enforcement procedures (in this regard see European Court of Human Rights, 10 April 2014, Terebus v. Portugal, application no. 5238/10), using new technologies where appropriate, and to advise them on the strategy to be adopted as the enforcement procedure unfolds.
2.2. The intelligibility of the applicable legislation
2.2.1. Clarity of procedures
2.2.1. Clarity of procedures
31. Content of the legislation. In addition to detailing the precise technical rules that apply to each type of enforcement procedure, national legislation could contain general provisions in which guiding principles could be mentioned (principle of balance between rights and interests involved[14], principle of the seizable aspect of the goods belonging to the debtors[15] etc.) the enforceable titles serving as a basis to the enforcement measures[16] as well as the way in which they become relevant should be specified and, if appropriate, the main concepts used be defined.
32. Standardisation of procedural documents. The steps in an enforcement procedure generally take the form of a series of documents (such as orders to pay, attachment orders and formal written notices). For greater legal certainty and in order to make it easier to check the regularity of the documents drawn up in any given enforcement procedure, the member states could formally standardise such documents and, for instance, set up document libraries, to which all enforcement agents would have access.
2.2.2. Clarity of costs
33. Setting and advertising fees. Whether they work as private professionals or they are employed by the state[17], enforcement agents are vested with a portion of public authority when performing their task of enforcing enforceable titles and act as “public State body” (with regard to the European Court of Human Rights Platakou vs. Greece, complain No. 38460/97). Therefore states should establish regulations on the fees that they may apply[18].
The fees in force should be disseminated as widely as possible among the public. All forms of dissemination methods and media (paper or electronic) could be deployed for this purpose. For example, fees could be displayed very visibly in enforcement agents’ offices (in areas where the public is received) and published on the Internet (on government sites and/or sites run by enforcement agents’ representative bodies).
3. Ensuring the quality of enforcement procedures
3.1. The requirement for enforcement procedures to be high quality
3.1.1. The efficiency of enforcement procedures
34. Competent courts. For increased efficiency, Council of Europe member states could set up specialised courts (ex in Italy, in France and in Portugal) to deal with all the stages of enforcement proceedings. Such specialisation may be warranted by the technical nature of disputes over the enforcement of enforceable titles.
The establishment of a specialised court could make it easier to provide for procedural rules geared to the particularities of the stage at which enforcement of enforceable titles takes place (for example, at this stage, the rights of one of the parties vis-à-vis the other have been laid down in a title; furthermore, the risk of dilatory appeals intended to delay the performance of enforcement measures is very high) and helps to expedite proceedings.In this way, states might promote simplified procedural rules (for example, provision of oral proceedings and the possibility for parties to represent themselves). Likewise, it should be possible to waive adversarial proceedings where enforcement procedures rely for their success on an “element of surprise” (for example, in cases of preventive attachment, particularly where they are applied to bank accounts).
35. Collective cover of the risk of failed enforcement.For an enforcement procedure to be considered successful, its implementation needs to result in the creditor obtaining what is owed to him or her. However, this aim cannot be achieved when the debtor does not possess enough resources to pay off his or her debt. In this connection, for certain types of debt (particularly maintenance debts), national law can set up mechanisms which place the burden of some of the risk of debtor insolvency (of private individuals) on a group of individuals. For example, the states might consider setting up a system whereby persons owed maintenance faced with an insolvent debtor would be entitled to a lump sum awarded by the relevant state services (this sum could be taken from a compensation fund financed by the proceeds of fines and penalties recovered by the state).
36. Diversification of types of enforcement procedure. Member states could be equipped with a legislative arsenal comprising enforcement procedures geared to all the types of obligations liable to be established in an enforceable title (obligations to pay, to do or to refrain from doing) and the varied composition of people’s assets (moveable or immoveable assets, tangible or intangible assets, registered or non-registered assets).
37. Access of enforcement agents to private premises. In order to carry out certain enforcement operations, enforcement agents should be able to access private premises in which the assets subject to the enforcement order are located, including premises used as dwellings. To this en, the national legislation could foresee the possibility, for an enforcement agent, to request and to obtain the assistance of the law enforcement agencies. The absence or obstruction of the occupiers of such premisesmust not form any obstacle to the performance of enforcement measures or protective measures. However, the possibility of forced entry into private premises for enforcement purposes should be subject to legal safeguards (for example, the requirement to have an enforceable title, the possible presence of witnesses ensuring that the enforcement operations are properly conducted or the need for the enforcement agent to take care to close up the entry through which they gained access).
38. Enforcement operations involving third parties. It should be possible for enforcement operations to be carried out on any premises where the assets to be recovered are situated. Provisions could be made in particular for the forced implementation of enforcement measures on assets even if they are held by third parties, including on premises that they use as dwellings. Placing assets in a third party’s dwelling must not provide a means for recalcitrant debtors to evade enforcement measures or protective measures.
39. Provision for and implementation of protective measures. Under circumstances prescribed by national legislation, creditors who do not yet hold an enforceable title against their debtors should be able to obtain authorisation from the competent court to arrange for a protective measure to be carried out.The aim of such measures is to protect creditors’ rights (which trial courts are moreover asked to recognise) while keeping the debtors’ assets intact. With a view to ensuring celerity, creditors already holding an enforceable title could be able to arrange for this type of measure to be carried out directly, without prior authorisation from the courts, under the condition that the implementation of the litigious protective measure cbe subject to a judicial control a posteriori..
3.1.1.1. Effective access to enforcement procedures
40. Surmounting economic obstacles to access to enforcement procedures. As is stated in point 62 of the Enforcement Guidelines, in order to guarantee access to justice, “legal aid schemes” should be available to creditors who cannot pay enforcement fees. States which decide to make the award of such aid dependent on certain conditions should place the emphasis on objective criteria (for example provision of conditions relating to the claimant’s resources) and ensure that they avoid any risk of bias (particularly when one of the conditions is the seriousness of the claim). Furthermore, legal aid should be available to creditors irrespective of the type of title they hold. Lastly, account could be taken of the particular nature of the enforcement stage of enforceable titles, which does not necessarily take the form of a trial.
3.1.1.2. Information on debtors and their assets
41. Persons authorised to receive information resulting from investigations into assets. Whether it is collected by consulting registers - not public - or requested from debtors themselves, legally accessible information on assets (such as debtors’ home addresses, the identity and contact details of their employers or the establishments in which bank accounts are open in their name) should not be communicated directly to creditors.Only enforcement agents, who have a duty of confidentiality, should have access to such information.
42. Investigations into debtors’ assets[19]. National legislation should give enforcement agents direct, secure electronic access to registers containing information on assets (as in Estonia, Lithuania, Sweden and Latvia). So as to avoid excessive procedural costs, such access could relate in particular to registers - not public - in which several types of relevant information are gathered, such as registers kept by the tax authorities (as in Sweden) and social security offices. Restricting access to registers containing only fragmentary information (such as vehicle registration lists) would be counter-productive.
Access to such registers could be provided for even when the national legislation allows the investigation of relevant information through a declaration of the debtor’s assets (as in German and Italian law).Despite the potential civil and/or criminal penalties, it cannot be ruled out that such declarations may be incomplete, inaccurate or false. Furthermore, putting questions to the services which manage registers containing relevant information on assets rather than debtors themselves would reduce the risk of debtors attempting to conceal their assets.
Bodies holding information which is legally accessible by enforcement agents (namely, public bodies or corporate bodies of public law[20] and third parties having a debt[21] towards the person concerned by the execution process) should not be able to refuse their requests on grounds of professional confidentiality. In addition, enforcement agents should be able to use the information such bodies provide to them in several different enforcement procedures involving the same debtor under the conditions provided for by the law[22].
43. Investigations into debtors’ liabilities. As is already the case in some European countries’ national legislations[23], the Council of Europe member states could set up a system to publicise enforcement measures and protective measures and, to this end, set up a central computer file, kept up to date by enforcement agents (for example, enforcement agents could be required to report to the body managing this file within a given time about any procedural acts carried out in the course of the enforcement procedure for which they were appointed). This file would list, for all debtors, any current enforcement procedures in which they are involved and those that failed for want of any attachable assets. This type of information is very useful for enforcement agents – and hence creditors – to help them to decide whether it is worth proceeding with a (further) enforcement procedure. By reducing the number of measures which will not give creditors satisfaction but entail a cost for debtors, such mechanisms would make enforcement procedures more efficient. To avoid undue disclosure, access to the information held in such computer databases should be strictly controlled.
3.1.1.3. Factors contributing to speedy enforcement
44. Promotion of e-enforcement. The growing use of new communication technologies in the justice field is a major trend in the Council of Europe member states. When applied to the enforcement of enforceable titles, this phenomenon is reflected in the spread of exchanges by electronic means between the various bodies involved in the procedure and the dematerialisation of actual enforcement procedures (as for instance in Armenia, Denmark, Georgia, Portugal and the Czech Republic). To date, this change has related primarily to attachments of bank accounts, immoveable property and vehicles and to public auctions (electronic auctioning).
The dematerialisation of enforcement procedures helps to save time in the implementation of certain protective or enforcement measures and increases the potential number of purchasers at public auctions. It could therefore be encouraged by the member states, provided that it is combined with all the precautions guaranteeing optimum legal certainty (see point 7 of the Guidelines on the execution). For instance, arrangements could be made to protect the confidentiality and the integrity of any information passed on, while the identity of the person serving the document must be checked and it must be ensured that documents are received by the actual persons to whom they are addressed (for example by setting up a system of acknowledgment of receipt for example).
3.1.2. The need for enforcement procedures to be fair
3.1.2.1. Rights and obligations of debtors when enforcement procedures are being carried out
3.1.2.1.1. Ensuring that debtors’ rights are respected
3.1.2.1.1.1. Encouraging debtors to be involved in enforcement procedures
46. Involvement of debtors in enforcement procedures. In the interest of all the parties concerned, debtors who have not spontaneously complied with the title issued against them, could nonetheless be afforded the opportunity of collaborating with the enforcement procedure initiated by their creditors. This could be the case in particular when the enforcement procedures relate to tangible assets. In such cases, increased involvement by debtors helps to appease the enforcement process by enabling debtors, for instance, to avoid the traumatic experience of forced attachment of their property. Such co-operation also would have advantages for the creditor or creditors, enabling them, for example, to avoid the costs connected with the forced sale of attached property (see point 56 of the Guidelines on the execution) and to reduce the risk of making an unprofitable sale.
Accordingly, as far as is possible and without slowing down enforcement procedures, states could encourage debtors to take a part in enforcement procedures concerning them. For example, enforcement procedures can include time limits allowing for voluntary compliance with an enforceable title or friendly agreements on the sale of attached property.
More generally speaking, national legislations should create the conditions for parties to reach or try to reach an agreement on the arrangements for enforcement, subject to the control of the relevant court and under the authority of the enforcement agent (acting in his or her capacity as a “post-judicial mediator” – see point 8 of the Enforcement Guidelines)[24].
Furthermore, Member States could inform the debtor, whose patrimony is concerned by a protective measure, the right to issue a guarantee (for example, a mortgage or a bank guarantee of an amount at least equivalent to the seized property) replacing the measure (in this sense, for example, see the "cantonment" mechanism provided for in the Belgian legislation.. judicial Code, Article 1403 et seq). This substitution, which should operate in the manner required by national legislation (for example, be authorized by a court), would allow the release of assets seized as a precautionary measure, without offending the rights of creditors.
3.1.2.1.1.2. Protecting the right to privacy of debtors and their families
3.1.2.1.1.2. Protecting the right to privacy of debtors and their families
47. Legal days and times for enforcement operations. The days and times at which enforcement operations can legally take place should be established (for example, between 6 a.m. and 8 p.m. except on Sundays and public holidays).
48. Persons present during enforcement operations. So as to avoid inflaming potential conflict situations, creditors should not generally attend enforcement operations.However, in case circumstances require them to be present (for example, when they are needed to identify the property subject to the enforcement procedure), it should be possible for the competent authority (for example the judge in charge of the enforcement proceedings) to give them an authorisation.
49. Duty of confidentiality. When the implementation of an enforcement procedure entails the involvement of a third party (such as the debtor’s employer or the bank where the debtor has his or her account) only such information as is strictly necessary for this party’s co-operation should be communicated to it. For example, if the procedure is carried out through a third party on the basis of a court judgment, only the operative part of this judgment should be brought to the third party’s notice.
More generally speaking, anyone involved in an enforcement procedure should be bound by a duty of confidentiality and should be liable to penalties (civil and/or criminal and, where appropriate, disciplinary penalties) in the event of undue disclosure of information acquired in this connection. In this regard, the deed transmitted to the persons could provide information on the existence of the compulsory aspect of confidentiality and the consequences of its violation.
3.1.2.1.1.3. Securing decent living conditions for debtors and their families
50. Limits of the attachment of certain assets belonging to debtors.In principle, debtors’ entire assets should be used to repay their debts. Therefore, it should be possible to apply enforcement measures and protective measures to all the assets belonging to debtors (whether tangible or intangible, moveable or immoveable or registered or non-registered), regardless of where they may be located.
However, limits on the attachment of assets belonging to debtors should also be provided for in national legislation (such as, for instance, moveable assets needed for the life and work of debtors and their families or objects that are essential for persons with disabilities or the treatment of sick persons). For clarity’s sake, it seems desirable for such limits on attachment to be set out in a single exhaustive list.
51. Rules specific to enforcement procedures applying to bank accounts.In enforcement procedures applied to bank accounts, a sum to cover subsistence expenses (set by national legislation) could be automatically left at the debtor’s disposal. The bank through which the enforcement procedure is to be carried out could be informed (in the enforcement document) of the amount concerned and the account or accounts on which it should be left.
52. Rules specific to enforcement procedures applying to tangible assets.When enforcement procedures relate to a tangible asset, debtors should in theory be able to continue using this asset during the procedure (with the exception, in particular, of assets which are destroyed on first use). However, for safety’s sake, any party (but, primarily, the creditor or the debtor) should be able to request that the assets to which the procedure relates be deposited with a receiver, appointed by mutual agreement or by the court.
53. Consistency with the legal rules governing companies in difficulty and over-indebtedness of private individuals. National legislation could ensure that a consistent approach is adopted to the implementation of civil enforcement procedures and the legal rules on companies in difficulty and on over-indebtedness of private individuals. For example, where this is necessary for a (private) debtor’s recovery, the state may organise procedures to clear his or her debt.
3.1.2.1.2. Punishing debtors’ misconduct and offences
54. Wrongful obstruction. Appropriate penalties could be provided for in national legislation to halt and punish conduct by debtors during enforcement operations which can be qualified as “wrongful obstruction” (for example, an order to pay accompanied by a periodic penalty payment for non-compliance or a fine and/or payment of damages).
55. Threats and violence against enforcement agents. Debtors should be liable to civil and/or criminal penalties for threats made and violence committed against enforcement agents and persons helping them with enforcement operations.
56. Concealment of or damage to assets. It could be possible for debtors’ civil and/or criminal liability to be incurred if they conceal or damage assets subject to an enforcement measure which they have continued to use during the enforcement procedure. In a similar vein, states should punish conduct by debtors amounting to fraudulent insolvency.
3.1.2.2. Rights and obligations of third parties during the course of enforcement procedures
3.1.2.2.1. Ensuring respect for the rights of third parties
57. Provision of specific safeguards. In contrast with debtors, third parties have no personal obligation vis-à-vis creditors. It would not be unreasonable therefore to establish rules offering them increased protection. In this connection, particular safeguards (for example the requirement for judicial authorisation) could be provided for when an enforcement procedure relates to an asset belonging to the debtor but held by a third party on the premises used by the third party as a dwelling.
58. Disputes over the ownership of assets subject to an enforcement procedure. Third parties should be able to file an objection with the competent court if they claim to be the owners of an asset or assets subject to an enforcement procedure. To prevent delaying tactics, the admissibility of such objections can be subject to the presentation of the supporting documents on which the alleged right of ownership is based. Similarly, national legislations should precise the delay during which the objection can be introduced.
3.1.2.1.2. Establishing third parties’ obligations and punishing breaches thereof
59. Obligations. Third parties should be subject to an obligation both to refrain and to co-operate. Firstly, they should not undermine the proper conduct of enforcement procedures (especially by aiding and abetting in the concealment of debtors’ assets or by physically and/or violently obstructing enforcement agents). Secondly, they should contribute to the proper conduct of enforcement operations when they are legally required to do so. For example, third parties through which an enforcement measure is carried out could inform the enforcement agent of the extent of their obligations towards debtors or declare any assets they are holding on their behalf.
60. Penalties. Third parties who fail to meet their obligations – in particular by making false statements or by refusing to inform enforcement agents - should be liable to penalties. It should be possible for instance for them to be ordered to pay damages or sums owed by the debtor to the creditor. These penalties should be provided for in law, effective and proportionate to the impugned conduct.
3.2. Control of the quality of enforcement procedures
61. Dissemination of annual activity reports. Professional organisations representing enforcement agents could publish annual activity reports providing information on matters such as the average length or cost of enforcement procedures and – if possible – the rate of completed enforcement procedures in the previous year. Information of this type could help to clarify creditors about the choice of procedures to be implemented (in this regard, see for example the annual reports drawn up under the aegis of the national Chamber of Belgian bailiffs). Similarly, statistics might be disseminated on the number of procedures initiated and the disciplinary sanctions imposed on enforcement agents.
4. Promoting the use of common legal terminology on enforcement
62. Improving enforcement procedures in the Council of Europe member states depends on the use of legal vocabulary which is not only precise but readily understandable by all. While some concepts are closely tied up with the specific features of individual national legal cultures (such as contempt of court), others describe present circumstances which are found in all the member states. For the latter, it seems a good idea to continue with the work of definition begun in Recommendation Rec(2003)17 of the Committee of Ministers and taken further in the glossary appended to the guidelines for better implementation of the existing Council of Europe recommendation on enforcement (CEPEJ(2009), 11REV2).
65. Subject to this general definition, an overall survey of the Council of Europe members states’ national legislation prompts us to complete some of the definitions given in the Recommendation and the Guidelines cited above, giving the following list[25] :
- Stakeholders in the enforcement process: Persons directly or indirectly involved in the enforcement procedure. This includes the parties (the creditor and the debtor), the third parties and the bodies running the procedure (the judicial authorities and the enforcement agent).
- Enforcement agent: A person legally authorised by the state to carry out the enforcement process, not including persons with the status of a judge. He or she may be a private professional vested with a portion of public authority or a public official. His or her status is regulated by the law.
- Creditor: A party seeking enforcement. Under the conditions provided for by national law, creditors may force defaulting debtors to honour their obligations in their regard[26].
- Debtor: A party, bound by an obligation to pay, to do or to refrain from doing, against whom enforcement is sought[27].
- Professional standards (of enforcement agents): All of the duties pertaining to a professional activity, as imposed on enforcement agents.
- Disciplinary rules (for enforcement agents): All of the rules describing the types of misconduct, the procedure, the disciplinary body and the penalties applicable to enforcement agents, all in accordance with the requirements of a fair trial.
- Operative provisions of a court decision: The final part of a court decision containing the actual settlement of the dispute.
- e-Enforcement: Use of new communication technologies during the enforcement of enforceable titles, manifesting itself in particular through the establishment of totally paperless enforcement procedures.
- Investigations of assets: Measures taken by a legally empowered authority to locate and identify the contents of a debtor’s assets.
- Protective measure: Measure taken with the aim of protecting creditors’ rights, which the trial court is, moreover, asked to recognise, while keeping debtors’ assets intact. Unlike enforcement measures, protective measures do not involve any transfer of ownership. For increased efficiency, these measures are taken following non-adversarial proceedings and debtors are notified only once they have come into effect.
- Enforcement measures: Legal remedies which enable creditors holding enforceable titles to obtain what is owed to them when their debtors do not spontaneously fulfil their obligations towards them.
- Enforcement procedures: All the formalities and acts legally required to implement a protective measure and/or an enforcement measure in a given case.
- Wrongful obstruction by debtors. Debtors who raise objections which are aimed solely at delaying proceedings or have no serious basis are guilty of wrongful obstruction.
- Service of documents. Process enabling a legally authorised official to bring a judicial or non-judicial act to the notice of its recipient.
- Third party: Persons involved in one way or another in the process of enforcing a judicial or non-judicial decision who are not creditors or debtors, but not including bodies running the procedure (judicial authorities and enforcement agents) or law enforcement bodies (such as the police). More often than not, this is the debtor’s debtor (the debtor’s employer or a bank with which the debtor has opened one or more accounts) or a person holding an asset belonging to the debtor on his or her behalf.
Enforceable title: A judicial act (such as a court decision) or a non-judicial act (such as a notarised instrument) establishing a party’s right to receive payment of a debt, on the basis of which national legislation allows the use of enforcement measures.
Receiver: Third party, appointed by the court or by mutual agreement of the parties, with whom assets are deposited which are subject to a protective or enforcement measure.
Appendix
1. Enforceable titles serving as bases for prosecutions. Several European States make provision in their legislation for an exhaustive or non-exhaustive list of documents which constitute enforceable titles. This is the case in particular in Georgia (Article 2 of the Law on Enforcement Procedures), Sweden (Chapter 3 of the Enforcement Code) or France, where Article L.111-3 of the Civil Enforcement Procedures Code contains an exhaustive list of enforceable titles. Examples can also be found in German law (§§ 704 and 794 of the Code of Civil Procedure), Spanish law (Article 517 of the Civil Procedure Law) or in Italian law (Article 474, paragraph 2, of the Code of Civil Procedure. This approach has not, however, been adopted by all the member States (eg Belgium). In addition, it is sometimes the case that, alongside a main provision relating to enforceable titles, there are several other provisions, which may or may not have been codified, providing for enforceable titles in their own field (eg Article 430 of the Dutch Code of Civil Procedure).
In all events, in civil and commercial law, enforceable titles generally fall into three main categories: court decisions (which can also include, under certain circumstances, arbitration awards), notarised instruments and judicial settlements. Furthermore, some national legislations empower enforcement agents to issue titles. This is the case in French law, for example, in the event of a chequenot being honoured or an agreement between the creditor and debtor being officially approved.
2. The scope of enforcement agents’ functions. Despite the disparities that exist between national legislations, certain solutions are favoured by a majority of member States, these being the partial removal of enforcement processes from the control of the courts, centralisation of the enforcement function and the multidisciplinary nature of enforcement agents’ tasks.
- Partial removal of enforcement processes from the control of the courts. When we look at the way in which the enforcement process is organised, it seems possible to divide European States broadly into two main groups.
In the first group (the majority), the enforcement of enforceable titles is not in principle subject to the prior authorisation of a court. When supervising enforcement procedures, they do so in agreement with the creditor and in compliance with the applicable national law. The States which take this approach include Germany, Belgium, Finland, France, Greece, Luxembourg, the Netherlands and Sweden.
By contrast, in the second group of States (the minority), irrespective of the type of enforcement measure concerned, the initiation of the implementation process is subject to authorisation by the relevant national court, even though the claimant has an enforceable title establishing his or her claim. In other words, the enforcement process has to be carried out by a court. This is the case in particular in Spanish, Italian, Danish and Austrian law.
In recent years, there has been a certain tendency to move enforcement procedures away from the control of the courts. The recent change in Portuguese law is one particular example.
- Centralisation of the enforcement function. Determining the degree of centralisation of the enforcement function in the different member States (which is not to be confused with the distinct issue of exercising functions within a monopoly) depends on whether the function can be exercised by one or more categories of professionals. In the sphere covered by the present guide, the answer to this question highlights one of the main differences that currently exist between the national legislations of Council of Europe member States. In one group of States (eg Austria, Belgium, Spain, Finland, the Netherlands, Romania, Sweden and, to a large extent, France), the authority competent for enforcing enforceable titles is in principle the same one, regardless of the measure to be implemented or the sphere involved. Conversely, in other States, the enforcement system is "decentralised" (eg in England and Wales, Scotland, Ireland and the Czech Republic). Functions may be assigned on the basis of the enforcement measure envisaged (in Germany, for example, four separate bodies are respectively empowered to carry out attachments of tangible moveable assets, executions against real estate property and attachments of debts and to enforce obligations to act or to refrain from action) or of the court which established the title to be enforced and/or the nature of the debt (eg in English and Welsh law).
- The multidisciplinary nature of enforcement agents’ tasks. To cite only a few examples of European States where the "secondary activities" listed in guideline 34 are main, important or common activities:
Debt recovery in: Belgium, Bulgaria, France, Georgia, Greece, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Netherlands, Romania, Russian Federation, Slovenia and the Czech Republic (but not, for example, in: Germany, England, Estonia, Finland, Hungary, Italy, Latvia, Norway, Portugal, Slovakia, Sweden).
Compulsory auctions in: Bulgaria, Estonia, Georgia, Hungary, Latvia, Lithuania, "the Former Yugoslav Republic of Macedonia", Moldova, Poland, Romania, Slovenia, the Czech Republic (but not, for example, in: Greece, Italy, Portugal, Russia).
Seizure of goods in: Bulgaria, Finland, Georgia, Greece, Hungary, Italy, Latvia, Moldova, Romania, Russia, Slovakia, Sweden (but not, for example, in: Scotland, Spain, Estonia, Lithuania, "the Former Yugoslav Republic of Macedonia", Norway, Netherlands, Slovenia).
Recording and reporting of evidence in: Belgium, France, Latvia, Lithuania, Luxembourg, Switzerland (but not, for example, in: Germany, England, Bulgaria, Spain, Estonia, Finland, Georgia, Greece, Hungary, Italy, "the Former Yugoslav Republic of Macedonia", Norway, Portugal, Russia, Slovakia, Sweden).
Serving as court ushers in: France, "the Former Yugoslav Republic of Macedonia", Netherlands, Russia, Switzerland, the Czech Republic (but not, for example, in: Germany, England, Belgium, Bulgaria, Scotland, Spain, Estonia, Finland, Georgia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, Norway, Portugal, Romania, Slovakia, Slovenia, Sweden).
Providing legal advice in: Spain, Estonia, France, Lithuania, Portugal (but not, for example, in: Germany, England, Bulgaria, Scotland, Finland, Georgia, Greece, Hungary, Italy, "the Former Yugoslav Republic of Macedonia", Moldova, Norway, Russia, Slovakia, Slovenia, Sweden).
Bankruptcy procedures in: Bulgaria, Spain and the Russian Federation (but not, for example, in: Germany, England, Belgium, Scotland, Estonia, Finland, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, Norway, Netherlands, Portugal, Romania, Slovakia, Slovenia, Sweden, the Czech Republic).
Tasks assigned to them by courts (such as reporting evidence, drafting expert reports, carrying out investigations, mediating, appointing a receiver or giving their opinion on a technical matter): Belgium, Bulgaria, Scotland, France, Georgia, Italy, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, Poland, Romania, Slovakia, Slovenia, Switzerland, Czech Republic (but not, for example, in: Germany, Spain, Estonia, Finland, Greece, Hungary, Latvia, Norway, Netherlands, Portugal, Russia, Sweden).
Mediation in: Belgium, Moldova (but not, for example, in: Germany, England, Bulgaria, Scotland, Estonia, Finland, Georgia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Norway, Portugal, Romania, Russia, Slovakia, Slovenia, Sweden, the Czech Republic).
Representing parties in court in: Spain, Netherlands and, in certain cases, France, Portugal, Switzerland and the Czech Republic (but not, for example, in: Germany, England, Belgium, Bulgaria, Scotland, Estonia, Finland, Georgia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, Norway, Russia, Slovakia, Slovenia, Sweden).
Drawing up private deeds and documents in: Bulgaria, Portugal and, subject to certain conditions, France, the Czech Republic (but not, for example, in: Germany, England, Belgium, Scotland, Spain, Estonia, Finland, Greece, Hungary, Italy, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, Norway, Netherlands, Romania, Russia, Slovakia, Slovenia, Sweden).
3. Statutory guarantees for enforcement agents. To illustrate the statutory guarantees for enforcement agents, examples may be drawn from the rules governing vocational training and the exercise of this profession.
-. Access to the profession and rules on vocational training of enforcement agents. Access to the profession of enforcement agent in Council of Europe member States is mostly subject to possession of a university degree in law and a subsequent period of vocational training.
While the basic university law degree is a requisite for accessing the profession of enforcement agent in most States, the duration of study required after the school-leaving exam (or equivalent diploma) does vary. Law studies may last three years (eg England, Estonia, Hungary, Italy, the Netherlands, Portugal), fouryears (eg Finland, France, Georgia, Lithuania, "the Former Yugoslav Republic of Macedonia", Romania, Russia) or five years (eg Belgium, Bulgaria, Spain, Latvia, Luxembourg, Moldova, Slovakia, Sweden, the Czech Republic). There are, however, some States where no specific level of law studies is required. This is the case for instance in Germany, Scotland, Greece, Norway and Slovenia.
Subsequently, persons wishing to become enforcement agents must complete a period of vocational training comprising theoretical and/or practical components before entering the profession (eg in Germany, England, Belgium, Scotland, Spain, Estonia, France, Luxembourg, Moldova, Norway, the Netherlands, Slovakia, Sweden; but not in: Bulgaria, Finland, Georgia, Greece, Hungary, "the Former Yugoslav Republic of Macedonia", Slovenia). The practical part of the training is almost always provided by the profession itself. In this connection, it is worth pointing out that in several States future enforcement agents must complete a work placement (eg in Germany, England and Wales, Belgium, Scotland, Spain, Estonia, France, Luxembourg, Moldova, the Netherlands, Slovakia, Sweden). The length of such placements varies considerably according to the country. In Slovenia, they are one week long while in the Netherlands they last four years.
Finally, in principle, candidates must pass a specific professional entrance examination (eg in Germany, England, Belgium, Bulgaria, Denmark, Scotland, Spain, Estonia, France, Georgia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, the Netherlands, Poland, Portugal, the Czech Republic, Romania, Slovakia, Slovenia, Sweden, Switzerland). Here again, States organise these examinations in different ways. For example, while in most countries this examination takes place after the practical training, some States organise it beforehand (eg in Estonia and Greece) or both before and after (eg in Romania). More unusually, enforcement agents may be required to sit examinations on a regular basis (eg every four years in Slovenia).
When required for entrance to the profession of enforcement agent, initial training in law is provided by universities. In-service training on the other hand is generally provided by the profession itself and, to a lesser degree, by other bodies including universities (for the theoretical aspects).
Some States possess specialised training centres for future enforcement agents (Germany since 1970; France since 1960; Georgia since 2009; Hungary since 2009; Norway since 1920; the Netherlands since 2002; Romania since 2005; Russia since 1970). The French National College for bailiff procedures based in Paris has 25 regional centres for example, with 200 trainers teaching fifty or so modules.
The number of States with specific training centres is set to increase in the near future as reforms geared to setting them up are currently under way in several countries (for example in Spain, Greece or Portugal).
- Rules on the organisation of the profession of enforcement agent. In absolute terms, the disparities between the number of agents in different States are very striking but because of the differences between the Council of Europe member States (particularly in geographical or demographic terms), they tell us very little. For example, whereas there are only 19 agents in Luxembourg, there are 46 298 in Russia.
The number of permanent agents per 100 000 inhabitants provides a better basis for comparison. The figures in this case range between 0.1 (in England and Wales) and 32.26 (in the Russian Federation). However, here again these data should be interpreted with some caution. The gap observed between England and the Russian Federation is accounted for, at least partly, by the fact that private enforcement agents in England and Wales (High Court Enforcement Officers, who were the only people counted in this survey) only perform some enforcement tasks (attachment of tangible personal property, auctions of such property and eviction) as they resort to the services of bailiffs for the seizure of goods. In the Russian Federation on the other hand, the broad scope of the activities performed by enforcement agents (about one third are also responsible for the security of courts) helps to explain why there are so many of them.
The extent of the geographical competence of enforcement agents varies from one European State to another. They have national competence in the Czech Republic, Slovakia or the Netherlands, for example. On the other hand, in Luxembourg, the geographical competence of a judicial officer is limited to one of the country’s two judicial districts (Article 13 of the Law of 4 December 1990 on the organisation of the judicial officers' service) despite the fact that the surface area of Luxembourg is only 2 586 sq. km. Similarly, in Belgium "judicial officers may only officiate in the judicial district specified in the Royal Decree through which they were appointed" (Article 513 of the Judicial Code). Yet Belgium, which covers an area of 30 513 sq. km, comprises 27 judicial districts.
It should be pointed out that in England the extension of the geographical competence of enforcement agents has resulted in the phasing out of around 90% of offices.
- Rules on how enforcement agents’ activities are to be monitored. More often than not, the disciplinary rules that apply to the profession of enforcement agent relate to potential breaches of professional regulations or standards and/or codes of ethics (eg England and Wales, Belgium, Bulgaria, Scotland, Spain, Estonia, Finland, France, Georgia, Greece, Hungary, Latvia, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, the Netherlands, Portugal, Romania, the Russian Federation, Slovakia, Sweden and the Czech Republic; but not in: Finland, Romania, Sweden), and breaches of the laws and regulations in this field have to relate to the agent’s professional activities (but not, for example, in: Spain, Lithuania, Moldova, the Netherlands) or to any act that is incompatible with the integrity, honour or tactfulness called for in their professional tasks (but not, for example, in: Finland, Georgia, the Netherlands, Slovakia, Sweden).
By contrast, the proportions are reversed when the conduct held against enforcement agents is linked to actions outside the scope of their professional activities. Only in nine of the States surveyed (of the 23) are there disciplinary rules which cover breaches of laws and regulations in the course of non-professional activities (for example in: Belgium, Scotland, Estonia, France, Georgia, Hungary, Luxembourg, "the Former Yugoslav Republic of Macedonia", Slovakia) and/or any act that is incompatible with integrity, honour or tactfulness relating to non-professional activities (for example in: Belgium, Scotland, Estonia, France, Hungary, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, the Czech Republic).
The survey of national legislation shows that the authority or authorities responsible for ruling on disciplinary sanctions are mostly bodies run by the profession itself (for example in: Belgium, Spain, Finland, France, Georgia, Lithuania, Norway, Romania, Russia, Sweden) and/or by mixed bodies (for example in: England, Belgium, Bulgaria, Greece, Hungary, Latvia, "the Former Yugoslav Republic of Macedonia", Moldova, Portugal, Slovakia, the Czech Republic). Even so, there are bodies outside the profession that are competent in this field in certain European States (for example in: Scotland, Estonia, France, Luxembourg, Moldova, the Netherlands, Sweden). Moreover, in a few States, these different types of supervisory bodies co-exist. In French law, for example, disciplinary procedures are generally dealt with by bodies within the profession of judicial officer but where offences attracting heavier penalties are involved, they are conducted by external bodies. When they have the authority to hear cases in which the discipline of an enforcement agent has been questioned, the courts concerned are generally ordinary law courts. Nonetheless, special courts serving this purpose have also been set up in Hungary, "the Former Yugoslav Republic of Macedonia", Moldova and the Czech Republic.
European enforcement agents usually have a means of contesting any disciplinary sanction imposed on them (for example in: England, Belgium, Scotland, Spain, Estonia, Finland, France, Georgia, Greece, Hungary, Latvia, Lithuania, "the Former Yugoslav Republic of Macedonia", Moldova, the Netherlands, Portugal, Romania, Russia, Slovakia) or at least some of these sanctions (for example in: Bulgaria, Luxembourg, Sweden).
Most national legislations set out a scale of disciplinary sanctions (for example in: England, Belgium, Bulgaria, Spain, Estonia, France, Georgia, Greece, Hungary, Latvia, Lithuania, "the Former Yugoslav Republic of Macedonia", Moldova, the Netherlands, Portugal, Romania, Slovakia, Sweden, the Czech Republic). In practically all European States, the disciplinary measures provided for include dismissal (with the exception of Bulgaria). Likewise, in most States, enforcement agents may be temporarily barred from exercising their profession (but not, for example, in: Estonia, Latvia, Russia).
4. Informing the parties about enforcement processes in which they are involved. In many European States there are ethical rules and/or professional standards relating to the relationship between enforcement agents and both creditors and debtors (for example in Germany, England, Belgium, Bulgaria, Scotland, Spain, Estonia, Finland, France, Georgia, Greece, Latvia, Lithuania, "the Former Yugoslav Republic of Macedonia", Moldova, the Netherlands, Portugal, Slovakia, the Czech Republic). These rules relate, among other things, to the communication of notices about the stage reached by the enforcement procedure.
In addition, more detailed provisions about the arrangements for informing people concerned by enforcement measures are contained in the legislation or regulations relating specifically to such measures. For instance, debtors are generally informed about the consequences if they fail to take action and the remedies available to them.
5. Status of enforcement agents. The status of enforcement agents is prescribed by law (in the broadest sense) in European States' national legislations. While these professionals are all delegated a share of public authority in order to carry out their duties, their status varies, depending on the State concerned. Within the scope of the present guide, three main groups of States can be distinguished so far. In order of size, the first group is one in which all enforcement agents are private professionals (for example in: England, Belgium, Scotland, Spain, Estonia, France, Greece, Hungary, Latvia, Luxembourg, Moldova, the Netherlands, Portugal, Romania, Slovakia, Slovenia, the Czech Republic); in the second group all enforcement agents are civil servants (for example in: Germany, Austria, Denmark, Finland, Italy, Norway) while in the third a "mixed" system has been established (for example in: Bulgaria, Georgia, Serbia, Switzerland). In recent decades the trend in Europe has been to assign the task of enforcement to private professionals.
6. Intelligibility of applicable legislation and clarity of costs. Legislation and regulations on the cost of enforcement agents’ activities, which is a key component of overall enforcement costs, are provided for in many European States. In this connection, enforcement agents must charge standard fees inter alia in England, Belgium, Bulgaria, Scotland, Spain, Estonia, Finland, France, Georgia, Greece, Hungary, Latvia, Lithuania, Luxembourg, "the Former Yugoslav Republic of Macedonia", the Netherlands, Portugal, Romania, Slovakia, Slovenia and the Czech Republic.
Nonetheless, the applicable regulations are sometimes complex. In Belgian law (royal decree of 30 November 1976 setting the rates for acts carried out by judicial officers in civil proceedings), for example, the acts carried out by enforcement agents in the exercise of their duties as organised by civil law provisions are costed depending on the case: using graded fees (calculated on the basis of the sum claimed or on the aim pursued by the action), proportionate fees (charged for certain actions in which the result has already been achieved - eg distribution of proceeds, the final bid price in a public auction - or has not yet been achieved, such as protests), sessional fees paid for certain actions which may be spread over time (for example, an inventory report or an eviction report – in such cases, fees are calculated on an hourly basis) or fixed fees (charged for related formalities such as research into persons’ identities, advertising by means of posters, establishing a registered land plan, submitting a petition or consulting the record of attachments). Furthermore, there is provision for increased fees for certain days or times of day. For instance, where actions must be carried out on a Saturday, a Sunday, an official public holiday or outside official working hours, fees and charges are doubled. Accordingly, several calculation methods coexist.
Moreover, as is the case with illegal practices or abuses in the course of their professional activities, claims by enforcement agents for "excessive costs", which fail to comply with the standard rates set by the State, are subject to controls in many European States (for example in Germany, England, Belgium, Bulgaria, Scotland, Spain, Estonia, France, Georgia, Hungary, Latvia, Luxembourg, "the Former Yugoslav Republic of Macedonia", Moldova, Portugal, Romania, Slovakia, the Czech Republic). More generally speaking, it is possible in principle both for debtors and for creditors to challenge the costs of enforcement procedures. Such challenges may be addressed to the enforcement agent concerned, the relevant disciplinary body and/or a court.
Finally, the issue of state-regulated costs is linked to the questions of competition and of the geographical competence of private enforcement agents. In any given geographical area, for activities for which there is a charge (namely the enforcement of enforceable titles and the serving of documents), it is only on the basis of the quality of the services provided that these professionals can be judged. It is worth noting that, in Germany, all enforcement agents (Gerichtsvollzieher) work in a single geographical area and all the services operating there are made up by enforcement agents acting in a private capacity.
7. Seeking of information on the debtor's assets. The efficiency of enforcement hinges largely on obtaining relevant information regarding the assets and liabilities held by the debtor.
In addition to obtaining information from the creditor, inquiries into debtor'sassets (immoveable assets; specific assets such as vehicles, ships or aircraft; bank details; situation of the debtor's bank accounts; amount of tax to be paid by the debtor; amount of wages paid to the debtor; tangible moveable assets; intangible moveable assets etc) may be made either with the debtors themselves or with a third party (such as public bodies or corporate entities under public law as well as any employer of the debtor or the establishment where the debtor holds a bank account). While the first type of investigations into assets hinges on cooperation with the debtor and may take the form of a procedure resulting in a "declaration of assets" (solution opted for inter alia in Germany, Denmark, Greece, Spain and Italy), the second type chiefly entails accessing registers and/or databases containing the relevant information on assets (solution opted for in many European States including England and Wales, Belgium, Bulgaria, Estonia, France, Hungary, Lithuania, Moldova, the Netherlands, Poland, Portugal, the Czech Republic, the Russian Federation, Slovakia, Slovenia andSweden).
The efficiency of the “declaration of assets” approach is determined to a great extent by the penalty that may be imposed if defendants fail to respond or file intentionally incomplete or inaccurate statements. The penalties provided for by national legislation vary considerably and may come under civil or criminal law.
The efficiency of the third party approach depends on the arrangements for access to registers and/or databases and on their content. Under Swedish law, for example, enforcement agents have direct access to a number of registers holding a whole host of information on assets. These include the tax register containing all the information set out in the declarations made by all Swedish taxpayers (income, employer's identity, loans etc), which is the prime starting point for enforcement agents' investigations. They may also consult the "tax statement" for example, which contains information on all the taxes to be paid and the refunds to be received); the data of the Swedish insurance social agency (this agency provides information on pensions, allowances and various welfare benefits received by the debtor); the companies register; the register of business partnerships and company names (containing information such as the address or name of company owners); the register of motor vehicles (showing information on vehicles and their current and previous owners); the register of housing allowances; the register of marriages (which includes information on marriage contracts); the register of shareholders (identifying the owners of shares quoted on the stock exchange); the land register (containing information on buildings and their owners) or the register of business pledges. Consulting all these different registers provides what is to all intents and purposes a comprehensive picture of the debtor's assets.
Knowledge of a debtor's liabilities is also useful for implementing an enforcement measure. In this connection, several member States have devised systemsto publicise enforcement measures. This is notably the case in Sweden (information available in the "register of debtors"), Portugal (Art. 717 "Computerised record of enforcement measures" and Art. 718 "Rectification, updating, deletion and consultation of data" of the Portuguese Code of Civil Procedure) and Belgium, which hascreated a "central file of notices of attachment, delegation, assignment and collective settlement debts" (Art. 1389bis/1 ff. of the Belgian Judicial Code). The system set up in Belgium, which is one of the most developed in Europe, hinges on the creation of a centralised computerised database whose management is entrusted to Belgium's National Chamber of judicial officers operating under the supervision of a "Management and supervision committee" set up for that purpose. This central file contains information on all debtors against whom an enforcement procedure (or a protective procedure) is in progress. Access to the file is permitted only for named persons. When a summons prior to seizure of immoveable property is transcribed, a summons prior to seizure of moveable property is served, a seizure of moveable or immoveable property is carried out or a "certificate of unenforceability" is drawn up (indicating that no asset belonging to the debtor has any market value or may be subject to seizure), the acting enforcement agent adds a notification in the file. In addition to the name of the acting enforcement agent, the notifications deposited contain information such as the identity of the claimant, the nature and amount of their claim, the date of the summons or seizure order and also – where moveable or immoveable property is seized – a short description of the property seized. No seizure may be carried out without prior consultation of this database by the enforcement agent, which makes it possible to assess the chances of debt recovery.
[1] [email protected]. The author would like to thank most sincerely the International Union of Judicial Officers, particularly Ms Françoise Andrieux (President), Mr Mathieu Chardon (Secretary General), Mr Leo Netten (Honorary President), the late Mr Bernard Menut (former 1st Vice-President), Mr Marc Schmitz (1st Vice-President), Olof Dahnell and Jos Uitdehaag, Lawyers, for giving him free access to all the available information.
[3] Cf. Appendix, especially Item No.1.
[4] The term "responsibility" iswidelyunderstood. It refers not only to the prerogatives of which enforcement officers should be invested to fully achieve their missions, but also to their specific duties (eg . The duty of information ) to which they are bound .
[5] Under this provision, “member states should ensure that the legal framework of enforcement is not unnecessarily prolonged. Member states are encouraged in particular to take measures to ease the procedural enforcement framework to give enforcement agents the necessary autonomy to choose for themselves, without prior authorisation, the procedural steps that are the most appropriate for the case in question”.See also Consultative Council of European judges (CCJE), Opinion n°13 on the role of judges in the execution of judicial decisions, CCJE (2010)2 final, 19 november 2010, spéc. point n°24.
[6] Cf. Appendix, especially point n°2.
[7] Cf. Appendix, especially point n°2.
[8] Cf. Appendix, especially point n°2.
[9] Cf. Appendix, especially point n°3.
[10] Cf. Appendix, especially point n°3.
[11] Cf. Appendix, especially point n°3.
[12] Cf. Appendix, especially point n°3.
[13] Cf. Appendix, especially point n°4.
[14] See point No. 7 of the Guidelines on enforcement.
[15] See point No. 50 of the present Guide.
[16] Cf. Appendix, especially item No. 1.
[17] See especially Appendix, item 5.
[18] See especially Appendix, item 6.
[19] See appendix, especially Item No. 7.
[20] For instance, social security service, tax services or land registries.
[21] Essentially banks and anydebtor’s employer.
[22] In this sense, Guidelines on the execution, espec. point No. 46. Furthermore,ConsultativeCouncil of European judges (CCJE), Opinion n°13 on the role of judges in the enforcement of judicial decisions,CCJE (2010)2 final, 19 November 2010, especially. point n°28. Contra, for instance, the solution retained in French law.
[23] See Appendix, especially item No. 7.
[24] See, Consultative Council of European judges (CCJE), Opinion n°13 on the role of judges in the enforcement of judicial decisions, CCJE (2010)2 final, 19 November 2010, especially. point n°28 according to which: „when parties can dispose of their rights and make an agreement on the execution complying with the law, no legal provision shall hamper this agreement to become effective“
[26] The definition of the term “creditor” precises the one of “claimant” used in Recommendation Rec(2003) 17 and the Enforcement Guidelines. Due to its generality, the word “claimant” may be misleading as it may imply a trial. In many Council of Europe member states, however, the courts are called on only to settle any disputes to which enforcement procedures may have given rise. Furthermore, very often it is the debtor who takes the initiative of filing an objection with the relevant court and hence takes on the procedural role of claimant.