Status of Digitalisation of ESCP Enforcement Procedures
Applications for enforcement may be filed using the electronic enforcement service provided by the National Enforcement Authority of Finland.
ESCP Procedural Aspects
1. Competent Enforcement Authority
The bailiff is the competent authority for the enforcement. The district bailiff (kihlakunninvouti) is to decide personally on the measures encompassed within Article 23 of the ESCP Regulation. Under the Code of Judicial Procedure Chapter 1 Article 9, the sole competence of the district bailiff includes the same matters contained in Article 23 of the ESCP Regulation, such as the stay of enforcement (9) and protective measures (8) in domestic matters. Therefore, the procedure for the enforcement of ESCP settlements is the same in this respect.
2. Rules on Service
In accordance with the Code of Judicial Procedure (1734/4) the procedure is initiated when the Registry of the District Court of Helsinki receives the written application. Under the Act on Provision of Digital Services or Laki digitaalisten palvelujen tarjoamisesta (306/2019) Chapter 2 Article 5, Finnish authorities including the Courts must provide the possibility of delivering messages and documents electronically. As per Amendment 2018/349 to the Code of Judicial Procedure Article 3a, a legal person, sole-proprietors, attorney, or a natural person who is a professional in the field of debt collection must submit their application electronically for uncontested civil cases or it will not be processed.
The application may or sometimes must therefore be delivered through electronic means, in which case if it is sent after office hours it will be deemed to have been received the following working day as per Chapter 5 Article 1 of the Code of Judicial Procedure. Consequently, documents may be delivered in-person, post or with an e-mail.
3. Language of the Certificate and Documents to be Appended
Under the EVV Article 7, when enforcement is sought for a judgement that was given in another EU Member State, the forms listed in the ESCP Regulation Article 21 2 (b) must be provided in either Finnish, Swedish, or English. Therefore, documents in English are accepted despite not being an official language in Finland.
4. Enforcement Fees
For the enforcement, the National Enforcement Agency of Finland provides a table of expenses that may be applicable, as determined by the sum of money in question. These include the scheduled fee collected from the debtor, which is levied on each incoming payment and is dependent on the size of the payment. For the ESCP, the maximum possible fee (i.e. for 5000 euros) would be 134 euros.
If the debt cannot be collected, either due to a lack of means or if the creditor withdraws their application, a processing fee of 10 euros is charged for the return of the documents for ordinary enforcement matters. A disbursement fee of 1.45 % is applicable for each sum that is disbursed to the creditor, which the creditor is liable to pay. If there is an auction, the auction fees will become applicable, which are 1100 euros for real estate and 450 for shares in housing companies of the auction prices.
5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures
All measures under Article 23 of the ESCP Regulation are within the sole competence of the district bailiff as per Article 6 of the EVV. However, it should be noted that while the bailiff is the competent authority for the enforcement under Article 21 and stays or limitations of enforcement under 23 of the ESCP Regulation, a refusal for enforcement under Article 22 (1) is handled by the Helsinki District Court as per EVV Article 5.
Furthermore, under Chapter 11 Article 1 of the Enforcement Act, a right of appeal is provided against an enforcement measure or decision by a bailiff. An appeal, with a time limit of 3 weeks, may be made by delivering a letter of appeal to the enforcement agency whose bailiff’s decision is to be contested. If the appeal is delivered after the time limit is expired, the right to an appeal is lost. The letter of appeal may be delivered electronically. When the letter of appeal arrives at the enforcement agency, it becomes pending before the competent District Court. Besides delivering the appeal and the enforcement document copies, the bailiff must at the same time inform the District Court of whether the appeal was timely and therefore, valid.
Critical Assessment
The ESCP judgement enforcement procedures have not attracted significant attention in Finland, as even references to it are few and far in-between. This is reflected in the 2016 thesis of Heidi Tamsi-Laine, who researched international enforcements in Finland, whereby ESCP enforcements were mentioned only in passing as no enforcements stemming from the ESCP procedure were received by the Enforcement Authority in Vantaa during the spring of 2016.