Status of Digitalisation of ESCP Enforcement Procedures
Electronic communication is possible when the creditor has obtained enforceable document (such as a judgement in ESCP, art. 23 of the EA) which must be on a prescribed layout (art. 39a p. 1 and 2 of the EA) and obviously sent physically to the court. This means that enforcement based on judgement in ESCP procedure is not digitalized.
But, when creditor has an execution writ on debtor’s funds (art. 204 of the EA) it is possible to preform such execution according to Implementation of Enforcement with respect to Funds Act (Zakon o provedbi ovrhe na novčanim sredstvima, hereinafter: IEFA). A base for the performance of this procedure is an enforceable document which can be a judgment in ESCP (art. 3 p. 1 . of the IEFA). The judgement in ESCP can also be submitted as an electronic document in accordance with the regulations governing the use of electronic documents, and in the manner prescribed by the ordinance governing technical conditions (art. 5 p. 3. of the IEFA). It is submitted to a Croatian financial agency (FINA). It can also be submitted as an electronic document in accordance with the regulations governing the use of electronic documents, and in the manner prescribed by the ordinance governing technical conditions (art. 5. p. 1. of the IEFA). In that sense, technical details are regulated in a Regulation on technical conditions for the implementation of the Enforcement with respect to Funds Act (Pravilnik o tehničkim uvjetima za provedbu Zakona o provedbi ovrhe na novčanim sredstvima).
Croatian financial agency (FINA) maintains the Official Register (Očevidnik) in electronic form (art. 6 p. 3 of the IEFA). It is a database of all the grounds for payment received by an individual creditors, the status of their execution and the actions taken during enforcement based on those grounds for payment (art. 6 p. 1 of the IEFA).
For the enforcement procedure, the most important part is the communication between Croatian financial agency (FINA) and the banks. This communication also function by electronical means.
ESCP Procedural Aspects
1. Competent Enforcement Authority
Enforcement procedure in Croatia is in jurisdiction of the courts and public notaries.
2. Rules on Service
Standard forms necessary for the procedure can be downloaded on a webpage https://e-justice.europa.eu/177/HR/small_claims_forms.
Forms, according to Regulation no. 861/2007, and other requests or declarations can be submitted as classical documents, by fax or electronically (507.o of the CPA). CPA regulates submissions in electronic form (art. 106.a of the CPA). Submissions can be sent electronically by using a special information system (art. 106a p. 1 of the CPA). Every submission must be signed by qualified electronic signature. This type of signature has the same legal effect as the written signature (art. 106a p. 2 of the CPA). For some legal persons that could be involved in the procedure (lawyers, public notaries, public bodies etc.) electronic communication is obligatory (art. 106a p. 5 of the CPA). From January the 1st 2022 a new Regulation on electronic communication (Pravilnik o elektroničkoj komunikaciji, hereinafter: REC) is in force. These Regulations gives more details and technical rules on electronic communication with the courts. REC regulates prerequisites for sending documents electronically, delivery in electronic form, forms of records of submissions in electronic form (formats), the organization and operation of the judicial information system for electronic communication (art. 1 of the REC). Electronic communication is realized through the information system using the credentials of the National Identification and Authentication System with a significant or high level of security and with direct connection to the information system of the State Attorney’s Office (art. 7 of the REC). A persons (both natural and legal) need to have a special authorisation to use the system. Natural persons independently exercise the right/authorisation to access the system by using the credentials of the National Identification and Authentication System with a significant or high level of security. Legal persons exercise the right/authorisation to access the system by submitting mandatory data to the system administrator (art. 8, p. 1 and 2 of the REC). The same rules apply to foreign parties in civil procedure. Foreign citizens (natural persons) have the possibility to register at the portal e-Citizen (E-Građani) which can be used for sending the documents electronically. EU citizens from other Member States can become an e-Citizen by using their national digital credentials accepted in the EU cross-border identification system. This portal can be used by person which is authorized to act in the name and on behalf of the business entity, which is the owner of nationally recognized electronic credentials and which accesses the System through NIAS. A cross-border user is a citizen or a person in a business entity of an EU/EEA/EEA member state who is the holder of a credential issued in an EU/EEA member state, except for the Republic of Croatia, by which the cross-border the user, through “Čvor” and NIAS, accesses the e-service. This means that cross-border users can use their own credential to prove their e-identity.
3. Language of the Certificate and Documents to be Appended
Art. 6 of the CPA explicitly regulates that the official language of the procedure is Croatian. In general, parties and other persons who participate in civil procedure must use Croatian language. The party is allowed to use their own language along with the person authorised to translate whose costs bears the party (art. 102 of the CPA). Regarding ESCP, CPA regulates that “if the creditor according to Article 21 paragraph 2 point b) of Regulation no. 861/2007 is obliged to attach a translation, that translation must be in the Croatian language, certified by a person authorized to do so in one of the member states of the European Union” (art. 507.z). Regulation 861/2007 regulates conditions for refusal of acceptance od documents/submissions based on the language. In that sense the CPA in article 507.p regulates that the deadline for statement of denial of acceptance is eight days. It begins to run from the day the submission is delivered (art. 507p of the CPA). These deadline cannot be extended. The recipient has to be informed and instructed on the consequences of missing that deadline. It has to be noted that the Form D can be downloaded in Croatian but also in other official languages of the member states.
4. Enforcement Fees
Enforcement Act regulates cost in general. Art. 14 of the EA regulates that the creditor must bear all costs of the procedure in advance. Beside the Court Fees Act relevant is also Ordinance on the Tariff of Court Fees (Uredba o tarifi sudskih pristojbi, hereinafter: OTCF). According to OTFC the court fee for the proposal for the enforcement is half of the court fee for the submission of the claim (tar. br. 1. p. 2 of the OTCF). This also applies for the cost of the writ of execution.
CFA is both applicable to civil procedure and enforcement procedure. The costs that are usually paid in enforcement procedure will be paid in enforcement procedure based on the judgement brought in ESCP.
5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures
On refusal of ESCP enforcement procedure decides municipal court (Art. 507ž p.1. CPA). The court must decide based on the reasons for the refusal regulated in art. 22. p. 1 of the Regulation no. 861/2007. Legal effect of refusal is that the enforcement shall be cancelled. The court decides on the cancellation of enforcement with the appropriate application of the provisions of the enforcement procedure (507.ž p. 2 of the CPA). The court must in decision explain the reasons for refusal (art. 41 p. 7 of the EA). Against decision on refusal appeal is possible.
Upon debtor’s application for stay or limitation of enforcement (Article 23 of Regulation no. 861/2007) decides the court that ordered the enforcement and after the start of enforcement, the court that carries out the execution (507 ž p.3. of the CPA). On the stay or restriction of execution according to the provisions of Article 23 of Regulation no. 861/2007 the court decides with a decision against which a special appeal is not allowed. The decision remains in force until the end of the proceedings initiated by the party in terms of the provisions of Article 23 of Regulation no. 861/2007, that is, until a different decision of the court passed on the occasion of the proposal of any of the parties.
Critical Assesment
In Croatian law there are no specific rules on ESCP enforcement procedure. The general rules on enforcement procedure apply. There are also no specific rules on digital enforcement of ESCP judgements. The most important issue with enforcement procedure based on judgement in ESCP is a lack of digitalization. To make ESCP enforcement procedure more efficient the more specific and more precise rules are desirable on national but also on EU level. Better transparency for providing information for creditors is also needed. First, better information about possible communication by electronical means (in connection to foreigners and using of portal e-citizens) is needed. It is important to avoid delivery of written documents to the court. Also, more transparency about legal aid is necessary. Maybe it is possible to organise a single contact point on national level connected with e-justice portal for communication with competent national courts in cross border procedure including ESCP procedure.