Giacomo Oberto



Given the short time available, I will limit my presentation to five concise remarks on the draft proposal for a Council regulation "European Enforcement Order for Uncontested Claims", trying to avoid to repeat what has already been illustrated by the rapporteurs and the speakers who preceded me. Let me first say that these points refer to as many limitations that risk, in my opinion, to reduce in an excessive (maybe even intolerable) way the effectiveness, in practice, of the European enforcement order, which is an instrument in which all we European judges should firmly believe.

The starting point of my remarks (utopian as it might appear, especially in the light of the debate that has preceded this current draft proposal), deals with the very choice consisting in limiting the enforcement order to "uncontested claims". The Italian experience in the field of uncontested claims within ordinary proceedings-having regard to the instrument provided for by Article 186-bis of the Italian code of civil procedure-shows that the cases in which claims can be considered "uncontested" are very much rare, if not almost non-existent. Therefore-aside from the case of an uncontested decreto ingiuntivo (or enjonction de payer, Mahnbescheid, or the "equivalent" in the various European systems)-the European enforcement order risks to be merely applicable to the sole case of judgements by default. That means: to a kind of proceedings whose statistical incidence, already rather marginal in the past years, seems to me to be in these last times more and more shrinking.

It is therefore worth asking, if so complex and penetrating a mechanism, like the one set up by the European enforcement title, should be set up in order to reach so modest results and to solve such a limited set of cases. Let me therefore invite to a true "act of courage" those colleagues who will represent our Country in the proceedings before EU competent offices, that will lead to the drafting of the definitive version of the Council regulation. I do really hope that a more "European" standpoint may bring to the extension of the principle of an European enforcement order to all claims, irrespective of the fact that they have been or have not been contested before the judge during the procedure that has led to the order.

The second limitation that I would like to criticise deals with the requirement according to which the claim should be "liquidated" (Article 1). I confess that my first reaction, in reading the text of the concerned provision, has been a reaction of astonishment: there is no doubt that a claim arising from a judicial order is, by definition, always "liquidated". If we want therefore to give sense to such a word, it is necessary not to refer it to the claim arising from the judicial decision, but to the claim which has led to the decision, before the judge converted a possibly not-yet-liquidate claim (e.g.: claim to compensation of damages arising from a tort) into a "liquidated" one. But, in this case, it seems to me really difficult to understand why a European judge should deserve confidence when issuing a decision forcing a party to a contract to perform his/her obligation and not when this same judge orders to the same part to restore damages arising from the breaching of that very contract (and, obviously, with greater reason, when the judge allocates damages for an extra-contractual tort).

The third limitation comes as a consequence of the provision of Article 1, paragraph 2 (a), according to which "This regulation shall not apply to: (a) rights in property arising out of a matrimonial relationship, wills and succession". In this context, as it has been exactly remarked by our President Prof. Verde, the reference to property claims is already excluded by the fact that the order can encompass only personal (pecuniary) claims. The English legal system, from which this expression has been taken, clearly knows and distinguishes as well property rights and personal rights, in the field of relations between spouses. The use of this wording seems to me to show the intention of the Legislator to refer here to that tangle of real and personal claims which usually arise from the patrimonial relationships between spouses. Consequence is, that, according to this provision, any relation of this kind should be out of the scope of the regulation. As far as the second part of the provision is concerned, it seems clear that the expression "testament or succession" (although taken from other supranational texts) constitutes, at least, a partial repetition, as the testamentary succession surely constitutes a form of mortis causae succession. If this is true, it is worth asking if it seems advisable to keep this kind of restrictions to the applicability of the regulation, as these limitations do not appear to be justified.

The fourth limitation, that indeed risks to make in practice completely inapplicable the concerned provisions, is the one contained in the first part of Article 2, paragraph 3, where it is said that the claim "is to be regarded as 'uncontested' if it does not depend on a reciprocal consideration". This provision risks to exclude all the claims arising from contracts which are based (as usually are) on a reciprocal consideration, if the expression "to depend on a reciprocal consideration" had to be extended (as it appears to be possible, although this is not my opinion) to any credit which arises from a consideration consisting in a reciprocal promise.

It seems to me useless to spend here other words in order to evidence the devastating effect of such interpretation on the possible application of the regulation. I propose therefore to completely eliminate such limitation.

The last limitation that I would like to criticise regards the reference to "a settlement which has been approved by the court", according to Article 2, paragraph 2 (a). We all know that, in the Italian civil trials, settlements are never (or almost never) "approved by the court", because, for tax reasons, parties tend to keep them out of the record of the hearing. It is hard to understand for which kind of reason a settlement should not be taken into account, simply because it has not been signed or "approved" by the judge, especially if we consider that what is eligible for becoming "enforcement order" is not the settlement in itself, but the judgement issued according to the settlement, when a party refuses to comply with it.

I close these brief remarks by observing that the above mentioned censures do not aim in any way to attack either the instrument in itself of the European enforcement order, or (even less) the idea underlying such institute: the idea according to which an enforcement order can be delivered by any European judge and that it can be used in any other country of our Union. My objections tend rather to push towards a courageous removal of all those obstacles that still could reduce (or even make useless) a principle that, instead, deserves our most favourable consideration.

I shall allow myself to insist on such aspects, especially in my capacity as an official of the International Association of Judges and of the European Association of Judges: these two organisms have been fighting for years for the acknowledgement of a more and more effective role of European judges in the battle for the full establishment of the principles of the rule of law and justice in the different parts of our continent.