Status of Digitalisation of ESCP Enforcement Procedures
The digitalisation of enforcement procedure is not advanced enough.
On 1 January 2022, the statutory regulations for the special electronic citizens’ and organisations’ mailbox (eBO) entered into force. With the eBO, citizens and organisations can exchange electronic documents securely with the justice system. The system should enable online communication with courts. The eBO mailbox enables both the sending of electronic documents to the court and the sending of electronic documents by the courts and the bailiffs to the mailbox holders. However, currently only specific software, which is still not free of charge, is required to create an account.
Professional parties to proceedings must set up an eBO for the service of electronic documents as of 1 January 2024.
In three federal states electronic application form can be already sent directly to the bailiffs. In other federal states the form can be sent through courts (section 130 a ZPO).
The system is new and not known among consumers.
ESCP Procedural Aspects
1. Competent Enforcement Authority
The ZPO distinguishes different enforcement procedures for movables (sections 803-863) and immovables (sections 864-871). The enforcement differs also in terms of the relevant law enforcement authorities.
There are four different enforcement authorities:
• the bailiff,
• the enforcement court,
• the trial court of first instance and
• the land registry.
Most relevant in consumer disputes are the bailiff and the enforcement court.
The bailiff as an autonomous enforcement authority carries out enforcement insofar as the law does not assign jurisdiction to the courts. The bailiff is responsible in particular for seizure of movables, surrender claims (section 883 ZPO) and to obtain information on the debtor’s assets (section 802a).
2. Rules on Service
An enforcement measure may only begin after the enforcement order has been served on the debtor. If enforcement is to be effected by a bailiff, it is sufficient if service is effected personally at the same time with the first enforcement measure.
Section 193a (2) ZPO provides that the documents can be served electronically.
3. Language of the Certificate and Documents to be Appended
The language accepted in German.Translation of the certificate is generally not necessary. The need for a translation will exist if the form contains supplementary information. If the translation is necessary, it should be done in German (section 1108 ZPO). A person qualified to make translations in one of the Member States should do the translation. Certified translation is not necessary.
4. Enforcement Fees
According to section 788 (1) the costs of compulsory enforcement, insofar as they were necessary, shall be borne by the debtor; they shall be recovered at the same time as the claim subject to compulsory enforcement. Pursuant to section 788 (1) sentence 2 ZPO, the costs of enforcement also include the costs of obtaining an enforceable copy and of serving the judgment. The costs depend on the measure taken. Each enforcement measure constitutes a separate act in terms of fees. For example, the issuing of an garnishment order, a fee of € 15.00 is charged by the court. These fees are also added to the claim to be enforced and thus imposed on the debtor.
The creditor receive an invoice with detailed calculations of costs to be paid to a certain bank account.
5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures
According to section 1105 ZPO the court before which the main action is being pursued is competent for applications for limitation of enforcement pursuant to Article 15 (2) in conjunction with Article 23 of the ESCP Regulation. The decision is given as a preliminary order. It is incontestable. The factual prerequisites of Article 23 of the ESCP Regulation are to be demonstrated to the satisfaction of the court.
Section 1109 concerns possible legal remedies in Germany against a small claims judgment originating from another Member State. In section 1109 (2) ZPO an enforcement defence action (Vollstreckungsabwehrklage) is foreseen, with which in particular the objection of performance can be asserted. The debtor can raise objections only insofar as the grounds on which they are based arose after the close of the hearing that was the last opportunity for these objections to be asserted, and thus can no longer be asserted by entering a protest.
Foreign consumers willing to enforce their ESCP judgements in another country face in general many practical problems. Since the enforcement of judgements given by any court constitutes an integral part of the right of access to a court, there is an urgent need to take legislative measures to enhance the efficiency and quality of the enforcement process in Germany and to harmonise the enforcement of ESCP judgement across all EU countries.
Having received a favourable judgment the consumer has to find out information how to proceed to enforce the decision in another Member State. This means especially:
-identification of competent enforcement authorities in other country and
-identification of formalities to be fulfilled.
In Germany, four different enforcement authorities can be competent depending on the measure to be implemented. The separation of competences in enforcement is no longer up to date. The decentralisation of the enforcement function makes it difficult for creditors to decide which enforcement authority would be suitable in any particular case. In centralised systems, the enforcement agent can better advice creditors on what measures to apply.
With the certificate issued by the court, its translation, if necessary, and a copy of the judgment, the judgment should be enforceable in all the other Member States of the European Union. However, additional national formalities like in Germany obligation to fill in a complicated application forms in German in order to initiate enforcement proceedings in Germany constitutes a serious obstacle. The official application form to initiate proceedings is nine pages long, exists only in German and is complicated to fill in. For example, the German form requires that the creditors decide which enforcement measure should be taken and in which order. Consumers without specialised knowledge cannot know which enforcement measure is most suitable and has most prospects of success.