Status of Digitalisation of ESCP Enforcemnt Procedures
The amendment of 2017 effective from April 1, 2017 (the so-called “Great amendment”) to the Enforcement Order (EO) has introduced the obligation to communicate exclusively electronically in the enforcement proceedings. That means, the creditor can submit a motion for execution on his/her own or via his/her legal representative or via his executor, but only by electronic means (via an electronic form to the electronic mailbox) of the exclusively competent District Court of Banská Bystrica (§ 48 and § 49 of EO). The newly created electronic form entitled “Motion for execution ” was published by the Ministry of Justice of the Slovak Republic on its website in the so-called “e-actions” section, under the agenda “execution proceedings”.
An authorized person can submit a motion in two ways, either via the portal of the Ministry of Justice of the Slovak Republic – “e-actions” (in Slovak “eŽaloby”), which provides a fully automated process, or via www.slovensko.sk portal under the section “Find a service”, where the motion for execution has been included.
A person filing a motion shall authorize the motion with a qualified electronic signature, otherwise it will not be taken into account (§ 48 par. 7 of EO). A person shall also attach the execution title and other documents either as an original electronic document that is authorized, or as an electronic document that was created by a guaranteed conversion of the document originally in a paper form (§ 48 par. 5 and par. 6 of EO). The withdrawal of the motion as well as the correction of errors in writing, calculations and other obvious inaccuracies in the motion must also be done electronically (§ 52 par. 2 of EO). If a person or his/her representative do not have an ID card with an electronic chip and an electronic mailbox activated for delivery, or if such a person needs to attach a document to the motion, which must be converted from a paper form to an electronic form, a person is able to submit the motion via any executor in the Slovak Republic. The obligation to use an electronic mailbox for the purposes of electronic communication and delivery follows the rules of the e-Government Act. However, in a given case, the executor is authorized to deliver documents (via electronic way) until the relevant executor is authorized to carry out the execution.
ESCP Procedural Aspects
1. Competent Enforcement Authority
Enforcement procedure is in jurisdiction of the District Court of Banská Bystrica. More specifically, under § 49 of EO “The District Court of Banská Bystrica is causally competent for execution proceedings.” A motion for enforcement can be submitted exclusively by electronic means to the court’s electronic mailbox (§ 48 par. 7 of EO). If the authorized person or his representative does not have an activated electronic box, he can submit a proposal through any executor (distrainor) in the Slovak Republic (§ 48 par. 8 of EO). The enforcement is carried out by the executor (distrainor), who is authorized by the enforcement court to carry out the enforcement. The court allocates things by issuing a mandate to carry out execution executors by random selection using technical means and program tools approved by the Ministry in such a way that the possibility of influencing the allocation of things is excluded.
2. Rules on Service
As regards the filing of the form, the general rules for filing a motion will apply (§ 125 of CCCL). The submission shall be made in writing and specifically in either a paper form or an electronic form. As regards electronic form, the submission (regarding the merits of the case) must be authorized pursuant to § 23 par. 1 of the Act No. 305/2013 Coll. on the electronic form of exercising the powers of public authorities (Zákon o elektronickej podobe výkonu pôsobnosti orgánov verejnej moci a o zmene a doplnení niektorých zákonov (zákon o e-Governmente), hereinafter: e-Government Act). If the submission on merits of the case) is made in electronic form, but without authorization, it must be additionally delivered in a paper form or in an electronic form with authorization within a period of ten days. If the unauthorized electronic submission (on merits of the case) is not additionally sent within the deadline in a paper form or in an electronic form with authorization, it will not be taken into account, i.e. it is looked upon as if it had not been served. As regards the authorization, the submission shall be regarded as authorized once it has been signed by a qualified electronic signature. A guaranteed electronic signature can be obtained by purchasing a qualified certificate from an accredited certification authority. Information on accredited certification authorities can be found on the pages of the National Security Authority of the Slovak Republic.
3. Language of the Certificate and Documents to be Appended
The court is obliged to provide the parties with equal opportunities to exercise their rights (under § 155 of the Code of Civil Contentious Litigation, Civilný sporový poriadok, hereinafter: CCCL). The costs associated with the fact that the party acts in their mother tongue or in a language they understand are borne by the state. Ensuring the party’s right to act in court in a language that the party understands does not affect the fact that the proceedings before the court must be conducted in the Slovak language as it follows from § 7 of the Act No. 270/1995 Coll. on the state language of the Slovak Republic (Zákon o štátnom jazyku Slovenskej republiky). The previous text is also applicable to the enforcement procedure (§ 200 of EO). Form D can be downloaded in Slovak.
4. Enforcement Fees
In enforcement proceedings, a person shall also pay a court fee of €16.50 in connection with the filing of the motion for execution (item 13 of the Annex to CFA), provided the person is not exempt from the fee obligation. The court fee is due upon filing the motion (§ 8 in connection with § 11d par. 1 of CFA). Due to the fact that all motions for enforcement can only be submitted/delivered to the enforcement court electronically, the use of the preferential 50% fee rate will not apply. The court fee is payable by filing a motion for enforcement and can only be paid by postal order, payment card or transfer from an account in a bank or in a branch of a foreign bank (§ 11d par. 1 of CFA). For writing the motion into the minutes, for sending the motion by electronic means, including the conversion of documents, for receiving and sending documents on behalf of the authorized person and for other activities related to the motion, the executor is also entitled to a fee of €16.50 in accordance with the decree.
5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures
Since there are no specific rules for the ESCP enforcement procedure, the only reason for “refusal of enforcement” at the request of the (debtor) obligor, under the ESCP Regulation (Article 22), is provided if the judgment given in the ESCP is irreconcilable with an earlier judgment given in any Member State or in a third country, provided that: the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member State of enforcement; and, it represents an exemptio rei iudicatae and the irreconcilability was not and it could not have been challenged in the proceedings in the country of origin.
As regards the stay of ESCP enforcement, as provided in § 61k par. 1 letter c) of EO, “the court will stay the enforcement fully or in part if there is a reason according to a special regulation (such as the ESCP regulation), due to which the recognition or enforcement of a foreign enforcement title is inadmissible, unless it was possible to apply it earlier in the proceedings under § 54 par. 2 of EO.” For the reasons set out in § 61k par. 1, the obligor may submit a motion to stay the enforcement proceedings within 15 days of the delivery of the notification of the commencement of the enforcement proceedings. The motion to stay the enforcement proceedings shall be justified and must contain all the facts that the obligor can claim on the date of filing the motion. Such a motion has a suspensory effect (§ 61k par. 2).
As regards the limitation of the ESCP enforcement, as provided in § 61h par. 1 letter g) of EO, “the executor shall issue a notification on the postponement of the enforcement proceedings, which he will deliver to the participants in the proceedings, the payer of the debtor’s salary, the bank, the debtor of the obligor or other persons affected by the enforcement proceedings, if it follows from the special regulation (such as the ESCP regulation) that the execution shall be postponed (or rather limited).”
In the Slovak law there are no specific rules on ESCP enforcement procedure. The general rules on enforcement procedure apply and, in some cases, the rules of CCCL apply subsidiarily. 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) 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.
The lack of specific rules on ESCP enforcement procedure imposes also some of the other maybe less significant issues we have stated earlier. As an illustration we can say, it is quite disputable, if the limitation of the ESCP enforcement (and the competence to interpret the reasons for the limitation) shall be in the competence of the court or if it should be in the competence of the executor. These questions would have been easily solved if we had specific rules on ESCP enforcement procedure.
 Official gazette the Act No. 305/2013 Coll. on the electronic form of exercising the powers of public authorities (e-Government Act)
 Official gazette the Act No. 160/2015 Coll. Code of Civil Contentious Litigation as amended.
 Official gazette the Act No. 270/1995 Coll. on the state language of the Slovak Republic
 See: https://e-justice.europa.eu/177/SK/small_claims_forms?init=true
 § 17 of Decree of the Ministry of Justice of the Slovak Republic of March 27, 2017, which implements some provisions of Act of the National Council of the Slovak Republic No. 233/1995 Coll. on executors and enforcement activities (Enforcement Order)
 Molnár, Peter. § 54 [Cudzí exekučný titul]. In: Števček, Marek, Kotrecová, Alexandra, Tomašovič, Marek, Molnár, Peter et al. Exekučný poriadok. Komentár. (Enforcement Order. Commentary). 3. edition. Prague: C. H. Beck, 2018, pp. 255–256.