15 January / janvier 2009

Strasbourg, 20 March 2009

CEPEJ-GT-EXE(2009)3

EUROPEAN COMMISSION

FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

WORKING GROUP ON EXECUTION

(CEPEJ-GT-EXE)

Report on the 1st meeting of the group

(Strasbourg, 29 - 30 January 2009)


1.    The Working Group on Execution (CEPEJ-GT-EXE) of the European Commission for the Efficiency of Justice (CEPEJ) held its first meeting in Strasbourg on 29 and 30 January 2009.

2.    The working group appointed Mr John Marston (United Kingdom) Chair.

3.    The agenda and list of participants appear in Appendices I and II respectively. The terms of reference of the CEPEJ-GT-EXE are in Appendix III.

I.          Information from the Secretariat

4.    The Secretariat welcomed all the members of the new working group and, since most of the experts were attending a CEPEJ meeting for the first time, gave a general description of the work of the CEPEJ. It also welcomed the two representatives of the International Union of Judicial Officers (UIHJ).

II.         Round-table discussion on the execution of court decisions in working group members' own States

5.    The Secretariat suggested that working group experts should each in turn describe the situation regarding enforcement procedures in their own country.

6.    Mr Marston described the British system, which was a mixed public/private system varying according to the nature of the measures. Execution was the responsibility of creditors, not enforcement officers.

7.    In Russia there was a public system that had recently been reformed by a new Judicial Officers Act; officers could now sit beside judges in courts and had powers of enforcement in tax matters. According to Mr A Abramov (Russia), 60% of decisions had been enforced in 2008.

8.    Germany had 4,800 judicial officers.  All were civil servants, although they could also work in private offices. According to Mr K-H Brunner (Germany), the system ought to be faster and more efficient.

 

9.    Croatia had introduced a judicial enforcement procedure whereby a judge had jurisdiction in enforcement matters. Most judicial officers were also registrars. In 2005 the law on enforcement had been amended so that information would circulate better. According to Ms A Lovrinov (Croatia), judicial officers’ motivation and efficiency needed to be improved.

 

10.  In Monaco, judicial officers came under the Public Prosecutor’s Office. The majority of cases were financial and, according to Ms C Notari (Monaco), serious problems arose in respect of access to information with a view to enforcement.

 

11.  In the Netherlands, a new law adopted in 2001 concerned the rights and duties of judicial officers, whose work was monitored monthly, and who received substantial amounts of training. Mr L Netten (UIHJ) said that many parts of the execution process now took place electronically.

12.  Judicial officers in France, who came under the Public Prosecutor’s Office, had monopolies in three fields: execution of decisions, service of documents and intervention in court. They had other responsibilities not subject to a monopoly: ascertainment of facts, sale of movables by auction, legal advice, and friendly settlements. France also had judges with power to decide matters relating to the execution of civil judgments.  According to Mr M Chardon (UIHJ), the French system could be more efficient where access to information was concerned.

 

13.  According to Mr G Stawa (Austria), the enforcement system for civil cases in Austria had been reorganised the year before. The old system had been run by the state.

14.  The Greek system was a liberal system operating under court supervision. Notaries were also involved in enforcement proceedings. According to Mr F Georgakopoulos (Greece), enforcement proceedings could move faster.

III.        Preparation of the CEPEJ-GT-EXE work plan

 

15.  The Secretariat pointed out that the CEPEJ, pursuant to its terms of reference, had wished to set up a working group on execution to help facilitate effective implementation of Council of Europe standards and instruments concerning enforcement, in particular Recommendation Rec(2003)17 on enforcement, and to improve the efficiency of execution procedures.

16.  The Secretariat also pointed out that, further to the 3rd Summit of Heads of State and Government (Warsaw, May 2005), the Committee of Ministers of the Council of Europe had decided to devote a monitoring process to the enforcement of national court decisions, but also to await the results of CEPEJ work in this field so as to draw benefit from these.

17.  The CEPEJ had already instructed Mr Julien Lhuiller, a graduate of and research lecturer at the University of Nancy Law Faculty, to prepare a report called Enforcement of court decisions in Europe (CEPEJ Studies, No. 8[1]) using data gathered by the CEPEJ in 2004 for its evaluation of European judicial systems. A summary of this report had been presented in the form of guidelines for the CEPEJ suggesting supplementing existing recommendations on enforcement (see Appendix IV to the present report). These guidelines could be used as a basis for initial reflection by CEPEJ-GT-EXE.

18.  Mr John Stacey (United Kingdom), Vice-Chair of the CEPEJ, said that the experts ought to take a general approach in order to highlight the best aspects of enforcement procedures, while respecting national differences and without necessarily trying to put forward their own systems.

19.  The guidelines to be prepared were to supplement the provisions contained in Recommendation Rec(2003)7 by providing a practical tool for domestic enforcement authorities. Ideally, each relevant provision of the recommendation should be clarified by a certain number of guidelines, which, without repeating these provisions, would provide details as to how they should be implemented. The CEPEJ had already carried out similar work on mediation (see document ….).

20.  The experts thus agreed to prepare a very specific structure at this stage for the guidelines that they would subsequently draw up (see Appendix V to this report). Each member of the group would draft a brief text on a part of the structure of his or her choosing. These contributions would then be used to draft the guidelines.

21.  The following were raised as examples of particularly problematic aspects of enforcement procedures on which guidelines might prove useful for a large number of states: enforcement timescales, number of judicial officers per country, professional ethics, seizure of personal assets, and human aspects of procedure.

22.  As to the advisability of drafting quality standards on execution, in order to improve the accessibility of execution systems and the efficiency of execution services, as specified in the CEPEJ-GT-EXE terms of reference, the Working Group decided not to take a decision until the guidelines had been drafted. Mr Pim Albers from the CEPEJ Secretariat explained the standards that had been drafted on quality of justice in the context of the work of the CEPEJ-GT-QUAL.

5.         Analysis of other institutions’ work on enforcement

23.  The UIHJ told the working group that it could find much useful information on the UIHJ website (www.uihj.com).

6.         Plan for CEPEJ-GT-EXE work in 2009

24.  The working group agreed that it might, with a view to its forthcoming work, ask a legal consultant to draft the guidelines, on the basis of group members’ contributions.

25.  The next meeting of CEPEJ-GT-EXE would be held in Strasbourg on 15 and 16 October 2009. A summary report on the work of the first meeting would be made by Mr Stacey, Vice-Chair of the CEPEJ, at the 13th plenary meeting of the CEPEJ (10-11 June 2009).

7.         Other business

26.  Ms Sabrina Cajoly, from the Secretariat of the European Committee on Legal Co-operation (CDCJ), told the working group that a programme called ‘Building a Europe for and with children’ had been set up at the Council of Europe with the aim, amongst other things, of improving justice for children. In this connection, the CDCJ was planning to collect examples of good practice taking account of the best interests of the child, including in enforcement proceedings relating to decisions concerning children. It was agreed that the two bodies would keep each other informed of their respective work, with a view to possible future co-operation.


Appendix I

Agenda

1.         Adoption of the agenda

2.         Information by the Secretariat

3.         Election of the Chairman

4.            Discussion concerning the tasks containg in the terms of reference of the CEPEJ-GT-EXE, with a view of preparing a working plan:

a.            Determination of the scope: civil and/or criminal

b.            Assessment of the impact of the existing relevant instruments of the Council of Europe on execution or court decisions at national level

c.            Drafting guidelines aimed to ensure an effective implementation of the existing standards of the Council of Europe

d.            Drafting, if appropriate, quality standards on execution in order to improve the accessibility of execution systems and the efficiency of execution services

5.         Analyse of the work of other institutions concerning the execution/

6.         2009 working plan of the CEPEJ-GT-EXE

§        Possible involvement of scientific experts/observers in the work of the Working Group

§        Next meeting: 15 – 16 October 2009

7.         Other business


Appendix II

List ofs participants

Experts

Andrei ABRAMOV, Deputy Head of Organisation of Judgment Execution Proceedings, Federal Bailiff Service of the Russian Federation, MOSCOW, THE RUSSIAN FEDERATION

Karl-Heinz Brunner, Stv. Bundesvorsitzender, German Union of Judicial Officers, Heidebuckelweg 12, D – 69118 HEIDELBERG, GERMANY

Fokion GEORGAKOPOULOS, Senior Legal Advisor of the State, ATHENS, GREECE

Ana LOVRINOV, Judge at the Municipal Civil Court of Zagreb, Ulica Grada Vukovara 84, 10000 ZAGREB, CROATIA

Claire NOTARI, Huissier de Justice près la Cour d’Appel et les tribunaux de Monaco, 17 boulevard Albert 1er, 98000 MONACO

John Marston, Former Chairman of the High Court Enforcement Officer's Association in England and Wales, 1st Floor, tameway Tower, 48 Bridge Street, WALSALL, WEST MIDLANDS WS1 1JZ, UNITED KINGDOM

John STACEY, Deputy Head of Civil Law and Justice Division
Access to Justice Directorate, Ministry of Justice, Post Area 2.10, 102 Petty France, DX 152380 Westminster 8, LONDON, SW1H 9AJ, UNITED KINGDOM (Vice-Chair of the CEPEJ / Vice-Président de la CEPEJ)

Georg STAWA, Public Prosecutor, Directorate for Central Administraiton and Coordination, Dept PR 1, Federal Ministry of Justice,  Museumstrasse 7, 1070 VIENNA, AUSTRIA

Observers / Observateurs

Léo NETTEN, 1er Vice-Président de l’Union internationale des huissiers de justice et officiers judiciaires (UIHJ), 42-44 rue de Douai, 75009 PARIS, France

Mathieu CHARDON, Premier secrétaire de l’UIHJ,  5 bis rue Sainte-Sophie, 78000 VERSAILLES, FRANCE

SECRETARIAT

Directorate General of Human Rights and Legal Affairs : Justice Division /

Direction Générale des droits de l’Homme et des affaires juridiques : Divison de la Justice

Fax: +33 3 88 41 37 43

e-mail: cepej@coe.int

Stéphane LEYENBERGER, Secretary of the CEPEJ / Secrétaire de la CEPEJ

Muriel DECOT, Co-Secretary of the CEPEJ / Co-Secrétaire d ela CEPEJ

Pim ALBERS, Special Advisor to the Secretariat of the CEPEJ/ Conseiller spécial auprès du Secrétariat de la CEPEJ

Jean-Pierre GEILLER, Documentation

Sandrine MAROLLEAU, Communication

Elisabeth HEURTEBISE, Assistante

Sabrina MUSABEKOVA, Trainee / Stagiaire

Interprètes

M. GUITTONNEAU

M MCGEORGE

MME TRAPP


Appendix III

European Commission of the Efficiency of Justice (CEPEJ)

Terms of reference of the Working Group on execution

(CEPEJ-GT-EXE)

adopted by the CEPEJ at its 12th plenary meeting

1.         Tasks

In accordance with article 7.2.b of Appendix 1 to Resolution Res(2002)12, and under the authority of the European Commission for the Efficiency of Justice (CEPEJ), the Working Group on execution (CEPEJ-GT-EXE) is instructed to enable a better implementation of the relevant standards of the Council of Europe regarding execution of court decisions in civil, commercial and administrative matters at national level.

In order to fulfil its tasks, the CEPEJ-GT-EXE shall in particular:

a.             assess the impact in the states of the existing relevant instruments of the Council of Europe on execution or court decisions at national level;

b.            draft, if appropriate, guidelines aimed to ensure an effective implementation of the existing standards of the Council of Europe;

c.             draft, if appropriate, quality standards on execution in order to improve the accessibility of execution systems and the efficiency of execution services.

To fulfil these tasks, the CEPEJ-GT-EXE will take into account in particular the relevant work of the CEPEJ, including the study approved by the CEPEJ on execution of judicial decisions (CEPEJ(2007)9).

2.         Composition

The CEPEJ-GT-EXEshall be composed of 6 members of the CEPEJ or experts, comprising practitioners,  proposed by member states and appointed by the CEPEJ Bureau who have an in-depth knowledge in the field of execution. Their travel and subsistence expenses are be borne by the budget of the Council of Europe. Other experts appointed by the member states might participate in its work, at their own expenses.

The relevant Council of Europe, in particular the European Committee on Legal Co‑operation (CDCJ), and European Union bodies might be represented to the CEPEJ-GT-EXE without the right to vote or defrayal expenses.

The non governmental organisations granted with the observer status to the CEPEJ might be invited by the Bureau to participate in the work of the CEPEJ-GT-EXE, on a case-by-case basis, if the Bureau considers their attendance relevant for the quality of the work.

3.         Working structures and methods

The CEPEJ-GT-EXEwill organise two meetings in 2009 (subject to budgetary availability).

 

In carrying out its terms of reference, the CEPEJ-GT-EXE may cooperate with the CEPEJ Network of Pilot courts.

It may also seek the advice of external experts and have recourse to studies by consultants.

4.         Duration

These terms of reference expire on 31 December 2009.

Appendix IV

Proposed guidelines to improve

the implementation of existing recommendations regarding

the execution of court decisions in Europe

(Appendix II of CEPEJ Study No 8: “Enforcement of court decisions in Europe”)

INTRODUCTION

1.            At the Council of Europe’s 3rd Summit (Warsaw, May 2005), the Heads of State and Government undertook to “make full use of the Council of Europe’s standard-setting potential and promote implementation and further development of the Organisation’s legal instruments and mechanisms of legal co-operation”.  At this summit, it was decided to “help member states to deliver justice fairly and rapidly”.

2.            As the Secretary General of the Council of Europe underlined in October 2005, the execution of judicial decisions is an essential element in the functioning of a state based on the rule of law. It constitutes a serious problem both at national and European level (CM/Monitor(2005)2 of 14 October 2005)

3.            This statement, as confirmed by the relevant case-law of the European Court of Human Rights (ECtHR), and problems in the execution of its judgments, as well as the work of the CEPEJ conducted the Committee of Ministers to dedicate a monitoring process for the execution of national judicial decisions.

4.            The CEPEJ, whose statute includes the objective of facilitating the implementation of the Council of Europe’s international legal instruments concerning efficiency and fairness of justice, included a new activity among its list of priorities: extending access to its database to research teams, particularly with regard to the execution or enforcement of court decisions, in order to gain a better understanding of how this works and to facilitate the application in practice of the relevant Council of Europe standards and instruments. The Committee of Ministers decided to wait for the results of these works in order to make use of them.

5.            The research team on the execution of court decisions (University of Nancy (France)/Swiss Institute of Comparative Law) therefore took due account of the impact of the relevant Committee of Ministers recommendations in member states, in particular:

-     Recommendation Rec (2003)16 on the execution of administrative and judicial decisions in the field of administrative law;

-     Recommendation Rec (2003)17 on enforcement;

The research team also wished to recommend certain specific measures to facilitate the application of the principles relating to the execution of court decisions contained in these recommendations.

6.            To this end, the research time first of all made full use of the data provided by the CEPEJ: in order to draft its report (CEPEJ – Evaluation of judicial systems 2006), the Working Group on the evaluation of judicial systems (CEPEJ-GT-EVAL) had drawn up a questionnaire with the aim, amongst other things, of measuring developments in the execution of judgments at national level, in line with the principles set forth in the recommendations.  The questionnaire had been answered by the national representatives of the Council of Europe’s 47 member states or entities.  The database which was compiled as a result served as a basis for the research team.

7.            Second, the replies from the member states were supplemented by further research (carried out by the Swiss Institute of Comparative Law) and the international experience of acknowledged practitioners, Mathieu CHARDON, Jacques ISNARD and Bernard MENUT (International Union of Judicial Officers).

8.            As was to be expected perhaps, there were significant disparities between member states in the execution of court decisions, as a result primarily of:

·                     the different status attached to enforcement officers

·                     the varying degree of autonomy granted to enforcement officers

·                     the level of transparency regarding the cost and timeframes of enforcement

·                     the varying level of protection given to information on the defendant’s assets

·                     the importance attached to quality standards in the enforcement process

·                     the arrangements for supervising and monitoring enforcement officers

9.            Bearing these obstacles in mind, the research team has therefore drawn up the following guidelines to improve application of the principles relating to the execution of court decisions contained in the above-mentioned recommendations.

10.         To make things easier, the guidelines have been grouped together under two headings: “Accessibility of enforcement systems” and “Effectiveness of enforcement systems”.

I.       ACCESSIBILITY OF ENFORCEMENT SYSTEMS

11.         The execution of court decisions can only be guaranteed in member states if the enforcement services are accessible.  Accordingly, measures should be taken to ensure that such services are available and evenly distributed and that enforcement mechanisms are effective.

A.            Distribution of enforcement services

12.         To ensure equal accessibility to enforcement services, measures should be taken to ensure that there are effective enforcement systems close to the defendant’s place of residence.

13.         Within a single member state, when different players are tasked with taking action in different areas of enforcement (ie the judge responsible for enforcement and treasury officials), it is important to pay close attention to the distribution, both geographical and case-type, of all concerned.

14.         Where enforcement officers are independent professionals, member states should ensure that there is sufficient competition.

B.         The costs of enforcement

1.        Regulating costs

15.         Each member state is encouraged to introduce regulations governing the costs of enforcement where such costs are likely to fall to the user.

16.         Member states which have introduced regulations governing the costs of enforcement should make it possible for a user to lodge an appeal against any enforcement officer not complying with the said regulations.

17.         Member states which authorise the payment of fees by an applicant to an enforcement officer upon successful completion should establish a framework for such a practice and provide for the possibility of negotiation; the fees, even where negotiated, should come within a strictly regulated range in order to limit anti-competition practices (the risk of dumping where there is no lower limit) and the emergence of two-speed enforcement (risk of the more disadvantaged sections of society being denied high quality enforcement if there is no upper limit).

18.         Where, within the same member state, there are enforcement officers working in both the private and public sector, the state should avoid any discrimination in terms of fees between enforcement officers of different status but equal competence.

2.        Transparency of enforcement costs

19.         Where enforcement costs are likely to fall to the user, the member state should ensure that the latter is informed as fully as possible about the enforcement costs and any fees due upon successful completion.  It should be possible for the user to be informed about the procedural costs, not only by the enforcement officer but also by the courts, consumer organisations, procedural codes or via the Internet.

20.         States are encouraged to insist that the cost of each individual measure is clearly indicated and to provide for sanctions in the event of non-compliance.

21.         Because of the growing mobility of users and services in Europe, there is an increasing need for the international execution of court decisions.  The transparency of enforcement costs must therefore go beyond mere domestic level: member states should consult in order to compile a database of the fees charged for the most frequent enforcement measures.  Once this list has been established and the fees set out by each state, it must be publicised as widely as possible so that users can access the information, including from other member states.  Under the auspices of the Council of Europe and possibly in conjunction with other international organisations, the CEPEJ could be tasked with identifying the data to be collected.

3.        Clarity of enforcement fees

22.         The clarity of fees is a factor in the transparency of enforcement costs.  In order to be as intelligible as possible, the fee for an action should depend on a limited number of factors.  The fee should be set out in the regulation as simply, clearly and concisely as possible.

23.         Here, member states could exchange their experiences and consider the need to take certain factors into account, such as the amount of debt or the assumed difficulty of the action.

4.        Relevance of the action in relation to cost

24.         The final cost of enforcement must be proportionate to the amount of the debt.

25.         It is the responsibility of enforcement officers to do only what they consider reasonably worthwhile.  When a user is offered legal aid, measures which are considered to be unnecessary should not be paid for by the community and should be borne by the enforcement officer.

26.         Enforcement officers should have a duty to offer proper advice and be required to explain clearly to applicants their situation and the relevance of the action they suggest be taken.  Once this advice has been given, enforcement officers should be able to refuse to assist the applicant if they have advised that no action be taken.

5.        Foreseeability of enforcement costs

27.         In the light of the defendant’s situation, enforcement officers should inform their clients of the nature of the action that could be taken and the associated costs at the beginning of and at each new stage in the procedure.

6.        Access to information on the defendant’s assets

28.         So that enforcement officers may produce an estimate of costs and ensure that any measures taken are proportionate to those costs, member states should allow them speedy and preferably direct access to information on the defendant’s assets.

7.        Apportionment of enforcement costs

29.         Enforcement costs should be borne by the defendant where he or she is solvent.

30.         If the defendant is insolvent, costs should be borne by the applicant.

31.         The fees on successful completion should always be paid by the applicant.

II.      EFFECTIVENESS OF ENFORCEMENT SYSTEMS

32.         Access to enforcement systems is of no benefit to users unless the state makes available enforcement services and measures that are effective.

A.        Effectiveness of enforcement services

1.            Qualification requirements

33.         For the effective administration of justice, there must be a guarantee that enforcement is of a high standard.  Member states should accredit enforcement officers only if the candidates concerned are of a standard and training equivalent to that of judges or lawyers.

34.         It is strongly recommended that there be post-training monitoring, by establishing a system of supervision, stewardship and in-service vocational training in member states.

35.         Insofar as certain member states may encounter difficulties regarding the quality of enforcement officer training, it is recommended that links be forged between national training institutions.  Member states should ensure that enforcement officers are given appropriate training curricula and should set down common minimum standards for instructors in the different member states.  The Council of Europe, if possible in conjunction with the European Union, could help in this task.  The CEPEJ could be tasked with setting up a working group on enforcement, comprising practitioners, instructors and representatives of member states or international organisations.

36.         The following topics should appear in the common minimum standards:

·                     principles and objectives of enforcement,

·                     attitude and ethical code of enforcement officers,

·                     phases in the enforcement process,

·                     nature, structure and procedures of enforcement,

·                     legal framework of enforcement,

·                     appropriate emphasis on role playing and practical exercises,

·                     trainee competence assessment,

·                     international enforcement of court decisions and other writs of execution.

2.            Organisation of the profession

37.         For the purposes of ensuring the proper administration of justice, the profession of enforcement officer should have a professional body representing the whole profession.  In this way, officers would be better represented and it would be easier to collect information.

38.         In member states which have set up such professional bodies of enforcement officers, it should be mandatory for the latter to join this representative body.

3.            Quality standards

39.         Member states should take the necessary measures to ensure that the definitions, scope and guarantees of the major principles of enforcement are standardised.  To this end, they are encouraged to draw up quality standards for their enforcement officers, following consultation with the latter and, where appropriate, in the light of the data provided by their national statistics institutions and in their courts’ annual activity reports.

40.         It is also recommended that member states draw up together, following consultation of their enforcement officers, minimum enforcement quality standards.  The resulting “European quality standards for the execution of court decisions” should be incorporated in the code of conduct for enforcement officers. The Council of Europe, if possible in conjunction with the European Union, could help with this task.  The CEPEJ could be tasked with setting up a working group on enforcement, comprising practitioners, instructors and representatives of member states or international organisations.

41.         In the event that officers fail to comply with the minimum standard agreed, member states and the parties involved should be able to lodge a complaint and have recourse to disciplinary procedures.

42.         Codes of conduct should contain quality standards relating to:

·                     information provided to users by enforcement officers regarding the procedure to be followed (reasons for the action, transparency and clarity of costs, etc),

·                     arrangements whereby users are to be informed (social role of the enforcement officer, duty to provide proper advice, etc),

·                     professional ethics (behaviour, confidentiality, ethics in the choice of action taken, etc),

·                     the smooth flow of the enforcement process (foreseeability of costs and enforcement timeframes, co-operation between the enforcement services, etc),

·                     flexibility of procedures (autonomy of the enforcement officer, etc).

43.         It is also recommended that the CEPEJ create a special page on its website specific to the execution of court decisions.  This page could include translations of the texts of the recommendations and other relevant Council of Europe documents relating to enforcement, an assessment of the impact of the recommendations on enforcement in member states, information on monitoring and evaluation of enforcement services, useful links, etc.

4.            Supervision and monitoring of enforcement officers

44.         The authorities responsible for the supervision and/or monitoring of enforcement officers have an important role to play in the quality of enforcement services.  Indeed, member states should be constantly assessing their enforcement services.  This should be carried out by a body outside the enforcement service and independent of the legislative and executive.

45.         A number of common assessment criteria need to be defined in order to strengthen confidence between member states, particularly given the prospect of a growing number of international enforcement cases.  The Council of Europe, if possible in conjunction with the European Union, could help in this task.

46.         Member states should ensure that the arrangements for monitoring the activities of enforcement officers does not hamper the smooth running of their work.

5.            Disciplinary procedures and sanctions

47.         Disciplinary procedures should be carried out by an independent authority.  Member states should consider introducing a system for the prior filtering of cases which are introduced merely as delaying tactics.

48.         There should be an explicit list of sanctions, on an increasing scale proportionate to the seriousness of the facts.  An officer should not be struck off the list except in the most serious cases.

B.        Effectiveness of enforcement measures

1.            Duration of enforcement

49.         The duration should be reasonable, in line with the case-law of the European Court of Human Rights.  The meaning of a reasonable duration should be left to the discretion of the domestic courts, in view of the many factors which may be beyond the control of an enforcement officer.  Member states should not impose any cut-off dates for enforcement.

50.         Nonetheless, it would be helpful, to assist the domestic courts in their appraisal, if each member state set forth clear and precise criteria regarding the reasonable nature of the duration, which could vary as required according to the nature of the case and the type of action requested.

2.            Foreseeable length of enforcement proceedings

51.         In view of the importance of being able to foresee the length of enforcement proceedings from the point of view of legal certainty for users, member states should establish statistical databases accessible to users enabling them to calculate the duration of the different enforcement measures possible.  Such statistical systems should make it possible to calculate the average length of each enforcement measure possible in domestic legislation (eg attachment of salary, attachment of bank assets, attachment of vehicle).  Such databases should be compiled in collaboration with enforcement professionals.

52.         These databases should enable member states to give users a fairly accurate idea of the likely duration of enforcement measures.  The obligation to provide such information would increase transparency and improve the foreseeability of the duration of enforcement measures, thereby offering greater legal certainty.

3.            Guarantees of complying with enforcement deadlines

53.         Member states should make provision for internal measures regarding the individual liability (administrative, civil, disciplinary, criminal) of enforcement officers in the event of failure to comply with enforcement deadlines.

54.         They must guarantee the effectiveness of the whole complaint and user compensation system (ie a system for calculating the likely duration of enforcement proceedings; possibility of lodging a complaint for exceeding this duration; a time-limit for responding and a time-limit for processing complaints; compensation in the event of excessive duration of the procedure).  Such guarantees should cover administrative, civil and criminal cases.

4.            Smooth and prompt enforcement

55.         In the courts, computerisation of working tools would greatly assist the transfer of files and information at the stage of the execution of decisions.

56.         At the stage of the execution of decisions, e-mail communication between the court, the enforcement officers and the parties must be possible.

57.         Member states must ensure that the legal framework of enforcement does not unnecessarily prolong the whole duration.  Member states are encouraged in particular to take measures to ease the procedural enforcement framework to give enforcement officers the necessary autonomy to choose for themselves, without prior authorisation, the procedural steps that are the most appropriate for the case in question.

58.         Member states should also ensure that the defendant may take action to challenge enforcement measures within a reasonable timeframe, provided this does not deliberately halt or delay the enforcement proceedings.

5.            Notice

59.         Member states must ensure that notice of both judicial and non-judicial acts is given in sufficient time, in particular by reliable electronic communications where such is possible and expedient.  The defendant must give explicit consent to use of electronic communication means.

6.            Enforcement rate in criminal matters

60.         Member states should instigate studies assessing the actual rate of collection of criminal fines and the collection rate of damages for the victims of crimes.

7.            Enforcement rate in civil matters

61.         Member states should instigate studies assessing the actual rate of recovery of debts and the collection of damages in contractual and non-contractual matters.

8.            International enforcement measures

62.         Following the adoption of the recommendations on execution/enforcement, it would appear that only a limited number of member states have introduced mechanisms to facilitate enforcement in cases with an international dimension.  It is therefore recommended that member states which have made some progress in this direction should exchange information with other member states.

Appendix V

STRUCTURE FOR GUIDELINES

(prepared by the CEPEJ-GT-EXE during its first meeting)

1.            Context of enforcement/Access to justice (J. STACEY)

§     Court processes

§     Legal aid

§     Funding of the enforcement

§     Principles and objectives of the enforcement

§     Language used

2.            Notices to the parties (including third parties) (L. NETTEN)

§     What sort of notices and to whom?

§     Notices services (certainty)

§     Methods of services

§     Publicity

§     Publications

3.            Enforceable instrument / Title (A. ABRAMOV)

§     Types of instrument

§     Form of the title (Confidence in the document/European title)

§     Priority

4.            Parties involved in the enforcement procedure (F. GEORGAKOPOULOS)

§     Claimants

§     Defendants (protection of debtors assets)

§     Third parties (Children)

§     Judges in enforcement

§     Court

§     Police

§     Local authorities/communities

§     Social workers

§     Risk insurance

§     Advise sector

§     Representatives of parties

§     Experts

§     Translators/interpretors

5.            Enforcement agents (M. CHARDON)

§     Regulation

§     Qualifications

§     Recruitment

§     Training (initial, professional, on-going)

§     Remuneration

§     Powers

§     Relations with authorities

§     Ethics

§     Supervision and control

§     Liability

6.            Information about debtors/assets (A. LOVRINOV)

§     Accessibility

§     What information should be accessible?

§     Who should has access?

§     Who should have duty to provide information?

§     Data protection

§     Professional secrecy (responsibility)

§     Multiple use of information

§     How long should enforcement agents should keep the information and use of these information?

§     Liability

7.            Processes and standards (G. STAWA)

§     Enforcement proceedings

§     Quality control

§     Advise to the parties

§     Accountability

§     Record keeping

§     Methods of enforcement

§     Targets

§     Managing

§     Measuring

§     Reporting

8.            Costs of enforcement (C. NOTARI)

§     Fees scales

§     Who pays?

§     Proportionality

§     Transparency

§     Foreseeability

§     Conduct

§     Productability

§     Disclosure

9.            Outcomes and timelines (K-H. BRUNNER)

§     Reporting outcomes

§     Having timelines for enforcement and limits

§     Is there a duty to publish?

10.         Regulation (J. MARSTON)

§     Disciplinary/Accountability

§     Liability

§     Who should regulate?

§     Who should be involved in the regulation?

§     Sanctions for misconduct

§     Transparency of the process



[1] Study prepared by the research team on enforcement of court decisions (University of Nancy/Swiss Institute of Comparative Law.