Status of Digitalisation of ESCP Enforcemnt Procedures
At present in Latvia, enforcement of the ESCP judgements cannot be initiated electronically. However, Latvian Civil Procedure Code provides possibility of organising electronic auctions.[1]
ESCP Procedural Aspects
1. Competent Enforcement Authority
In Latvia, it is court bailiffs that deal with enforcement of court judgements, including ESCP judgments. Certified bailiffs perform their duties within the territorial jurisdiction of the regional court to which they are affiliated.[2]
2. Rules on Service
As regards the service of documents in enforcement of the ESCP judgements, no special rules apply.[3] General rules are set in Civil Procedure Code. A bailiff, when about to commence enforcement, shall notify the debtor by sending or issuing a notification regarding an obligation to enforce the ruling within 10 days. If the ruling is to be enforced without a delay, the time for voluntary enforcement of not less than three days shall be set. If the debtor is a natural person, the bailiff shall send the notification to the debtor by registered mail to his or her last known place of residence or issue it to the debtor in person for which the debtor shall sign. If the bailiff does not meet the debtor at their place of residence, the bailiff shall give the notification to an adult family member residing with the debtor. If the place of residence of the debtor – a natural person – is not known, the notification of an obligation to enforce the ruling shall be published in the official gazette Latvijas Vēstnesis. If the debtor is a legal person, the bailiff shall send the notification by registered mail to the legal address or issue it in person to a representative of the executive body of the debtor for which he or she shall sign. If the debtor or a representative of the executive body of the debtor refuses to accept or sign the notification, the bailiff or the server of the proposal shall draw up a statement in respect of that in the presence of two invited persons. Refusal to accept or sign the notification shall not constitute a bar for the enforcement of the ruling.[4]
3. Language of the Certificate and Documents to be Appended
Latvia has specified only Latvian as an acceptable language, the translation into Latvian shall be submitted.[5]
4. Enforcement Fees
For the submission of an enforceable document for enforcement, its submitter shall pay a state fee to the state budget. For each official activity (listed in Sections 73 and 74 of the Law on Bailiffs) performed by a sworn bailiff, as well as for the legal assistance provided (Section 75 of the Law on Bailiffs), he has the right to receive compensation regardless of the state fee. The amount of compensation for the activities of a sworn bailiff is determined according to the fee. Agreement on the amount of compensation for the activities of the office, which is different from the fee, is prohibited. The compensation for the position of sworn bailiffs is subject to value added tax in the amount specified in the Law on Value Added Tax.[6]
5. Refusal, Stay, or Limitation of Enforcement Procedures
A district (city) court in the territory of which the ruling of the foreign court is to be enforced, upon receipt of an application from a participant in the case on the basis of Article 22 of the abovementioned Regulation, may refuse the enforcement of the ruling.[7] An application regarding refusal is to be lodged, no state duty shall be paid for submission of the application.[8] The application is to be supported by the following documents:
1) a properly certified true copy of the ruling of the foreign court;
2) in the relevant cases – a properly certified true copy of the certificate referred to in Article 20(2) of ESCP Regulation No 861/2007;
3) other documents upon which the applicant’s application is based;
4) translation into the official language of the application and the documents certified according to special procedures referred to in Clauses 1, 2 and 3 of Art 664-4 of the Civil Procedure Code.[9]
The application is examined in a court hearing, notifying the participants in the matter. A district (city) court, in the territory of which the relevant decision of the foreign court is to be enforced on the basis of Article 23 of ESCP Regulation upon the receipt of an application from the debtor, is entitled to:
1) replace the enforcement of the ruling with the measures for ensuring the enforcement of such ruling provided for in Section 138 of this Law;
2) amend the way or procedures for the enforcement of the ruling;
3) stay the enforcement of the ruling.
Reasons for stay or limitation are listed in Article 23 of the ESCP Regulation. Such application is be examined at a court hearing upon prior notice to the participants in the case.[10] The application is not subject to state duty.[11] For the court to be able to decide on the stay or limitation, the following requirements shall be met:
1) an application was submitted by the participant of the case;
2) an appeal regarding the judgment in the Member State of origin was submitted or the term of such appeal has not ended;
3) a request in accordance with Article 18 of the ESCP Regulation to review the judgment adopted in the ESCP proceedings was submitted by defendant.[12]
Critical Assessment
The information regarding ESCP proceedings in Latvia in English language is scarce as E-Justice portals deals only with national small claims procedure. There is also a lack of information regarding enforcement in Latvia in English. This might discourage nationals of other member states from using the ESCP proceedings. It also means that nationals of other member states may feel more comfortable having retained a lawyer, although ESCP proceedings were intended to be user-friendly proceedings which increases access to justice without increasing costs of such access (including, to a lawyer). The lack of information available in different languages should be corrected. The enforcement proceedings could be more automated and could use the benefits IT tools provide nowadays.
[1] https://likumi.lv/ta/en/en/id/50500
[2] https://e-justice.europa.eu/29/EN/types_of_legal_professions?LATVIA&clang=en
[3] https://likumi.lv/ta/en/en/id/50500
[4] https://likumi.lv/ta/en/en/id/50500
[5]https://www.just.ee/sites/www.just.ee/files/euroopa_liidu_tasandil_tsiviilkohtumenetlust_reguleerivate_maaruste_rakenduspraktika._balti_riikide_kogemus_kogu_uuring_inglise_keeles.pdf
[6] https://likumi.lv/doc.php?id=68295
[7] https://likumi.lv/ta/en/en/id/50500
[8]https://www.just.ee/sites/www.just.ee/files/euroopa_liidu_tasandil_tsiviilkohtumenetlust_reguleerivate_maaruste_rakenduspraktika._balti_riikide_kogemus_kogu_uuring_inglise_keeles.pdf
[9] https://likumi.lv/ta/en/en/id/50500
[10] https://likumi.lv/ta/en/en/id/50500
[11]https://www.just.ee/sites/www.just.ee/files/euroopa_liidu_tasandil_tsiviilkohtumenetlust_reguleerivate_maaruste_rakenduspraktika._balti_riikide_kogemus_kogu_uuring_inglise_keeles.pdf
[12]https://www.just.ee/sites/www.just.ee/files/euroopa_liidu_tasandil_tsiviilkohtumenetlust_reguleerivate_maaruste_rakenduspraktika._balti_riikide_kogemus_kogu_uuring_inglise_keeles.pdf