European monitory process (Payment requirement)
The European order for payment process is a means of cross-border claiming of uncontested pecuniary claims, although, unlike the Spanish order for payment, it includes not only claims of a civil or commercial nature but also those derived from the employment contract.
The European order for payment process was established in community regulations in Regulation (EC) 1896/2006 of December 12, 2006. And although the community standard is directly applicable in Spain, Law 4/2011 of March 24 introduced a DF 23rd in the LEC in order to coordinate this process with our procedural rules, where the European payment order is regulated.
The European order for payment procedure applies to cross-border civil and commercial matters, from which it follows:
- The limitation to cross-border matters
It is understood, according to art. 3.1 of Regulation (EC) 1896/2006, that we are facing a cross-border dispute when at least one of the parties is domiciled or has his habitual residence in a Member State other than the one to which the court before which the complaint has been filed belongs. request . That is, the key element to determine the nature of cross-border is the domicile or residence of the parties, for which the provisions of art. 3.2 of Regulation (EC) 1896/2006.
It is understood that the fixing of the domicile or habitual residence is at the time of filing the request for payment.
It goes without saying that, within cross-border cases, we find another limitation, as it only applies to Member States.
- The procedure is limited exclusively to civil and commercial matters, claims for quantities, claims for defective products, breaches of contracts between companies and / or individuals, acquisition of new and / or second-hand vehicles, etc. Tax, customs and administrative matters are excluded, as well as cases in which the State incurs responsibility for actions or omissions in the exercise of its authority (acta iure imperii).
Within what are clearly civil and commercial matters, certain debts are excluded (matrimonial regimes. Bankruptcy, creditors’ agreements and other similar procedures. Social Security. Credits derived from non-contractual obligations, unless have been the object of an agreement between the parties or that there has been a recognition of debt, or refer to liquid debts derived from a community of owners).
Processing of the European order for payment process.
The objective competence to hear the order for payment proceedings is attributed to the Court of First Instance. To establish territorial jurisdiction, the Regulation (EU) 1215/2012 of December 12, 2012, regarding judicial jurisdiction, the recognition and enforcement of judicial decisions in civil and commercial matters, and, in matters not foreseen, with according to Spanish procedural legislation.
When only a part of the petition meets the requirements for admission, the Lawyer of the Administration of Justice will transfer such circumstance to the Judge so that he, by order and in the manner provided in a form to that effect, propose to the plaintiff that he accept or reject the proposed payment order for the amount specified in the court decision.
In said proposal, the plaintiff must be informed that, if he / she does not accept the proposal or does not reply, the petition is inadmissible, without prejudice to the possibility of submitting another claim, again by European means or by opting for the national order for payment procedure.
If the plaintiff accepts the proposal made by the court, the rest of the credit may be claimed by the corresponding process according to national or community law.
The rejection of the request for a European order for payment shall be adopted by order, in accordance with art. 11. Likewise, the plaintiff will be informed of the reasons for the rejection. There is no recourse against this order, although nothing prevents the petitioner from again urging payment through the national or community channels that he considers most appropriate.
If the Lawyer of the Administration of Justice considers that the petition meets the requirements, he will issue a decree requiring payment to the defendant.
The issuance of a European order for payment is adopted by decree within a maximum period of 30 days (without counting the time taken by the plaintiff to complete, rectify or modify the request) from the date of presentation of the request, and in the form provided for in form E contained in annex V of Regulation 1896/2006.
The defendant can file within 30 days from the notification of the written request to oppose the claim.
If a statement of opposition is presented within the indicated period, the Lawyer of the Administration of Justice will inform the plaintiff that he has to urge the continuation of the matter by the corresponding procedure in accordance with the Spanish procedural rules before the court of first instance, of the commercial or social that corresponds, unless you have already expressly requested that, in this case, the process be completed.
In the event that within the indicated period no opposition has been formulated or the debt has not been paid, the Lawyer of the Administration of Justice will put an end to the order for payment process declaring the European request for payment by decree and in the manner provided in the Annex VII of Regulation 1896/2006. This requirement will be delivered to the plaintiff duly testified by the Lawyer of the Administration of Justice, either on the original or on the copy, stating this circumstance.
The jurisdiction for the execution in Spain of a European order for payment that has acquired enforceability corresponds to the court of first instance of the defendant’s domicile. Likewise, it is responsible for the denial of the execution of the European order for payment, at the request of the defendant, as well as the limitation of the execution, the constitution of guarantee or the suspension of the execution procedure referred to in arts. 22 and 23 of Regulation 1896/2006.
Notwithstanding the provisions of the rules contained in Regulation 1896/2006, the procedures for the execution in Spain of European payment orders issued in other Member States will be governed by the provisions of the LEC. The processing of the refusal of the execution of the European order of payment, as well as the limitation of the execution, its suspension or the constitution of guarantee, will be carried out in accordance with the provisions of arts. 556 et seq. LEC, and will be resolved by order not subject to appeal.
When a European request for payment must be executed in Spain, the plaintiff must submit to the competent court an official translation into Spanish or the official language of the autonomous community in whose territory the judicial proceedings of said request take place, certified in accordance with art . 21 of Regulation 1896/2006.
In general, the jurisdiction for the review of a European order for payment rests with the court that issued it. The review provided for in art. 20.2 of Regulation 1896/2006 is processed through the incident of nullity of judicial acts (art. 241LOPJ).
Procedural issues not provided for in Regulation 1896/2006 for the issuance of a European order for payment shall be governed by the provisions for the national order for payment procedure.