Enforcement proceedings are proceedings brought by the creditor before the Enforcement Office in order to collect their claim, by the power of the State, from a debtor who for any reason does not perform their debt. A person may collect their claim within the country or abroad. The fact that the debtor lives outside the borders of Türkiye is no obstacle to bringing enforcement proceedings against them.
The procedural rules for foreign enforcement proceedings vary according to the country in which the debtor lives.
Methods for Bringing Enforcement Proceedings Against a Debtor Abroad
1) Bringing an action for the debt in the creditor’s country
2) Bringing an action for the debt in the debtor’s country
3) Obtaining a European Payment Order
Who May Bring Foreign Enforcement Proceedings
Anyone who has the capacity of a creditor (whether an individual or a company) may bring foreign enforcement proceedings.
Against Whom May Foreign Enforcement Proceedings Be Brought?
Enforcement proceedings may be brought whether the debtor is an individual or an institution.
How Are Foreign Enforcement Proceedings Brought?
1- As in our Turkish judicial system, in many countries foreign enforcement proceedings are divided into two: proceedings based on a judgment and proceedings without a judgment. Proceedings based on a judgment are those founded on a court decision or on another document of the same force. Proceedings without a judgment do not rest on any court decision. If the creditor holds a judgment or a promissory note, the proceedings become even easier. The judgment or the note must, however, be valid internationally.
2- Before bringing foreign enforcement proceedings, the contract or the situation giving rise to the claim must be examined. In practice, proceedings are generally brought to collect claims arising from contracts between companies. In that case the language between the parties to the contract and the rules of law applied are extremely important. For this reason the contract giving rise to the debt must be considered with care, and solutions must be produced in accordance with the rules of international trade law. In this sense, obtaining legal support will bring economic benefit to the creditor. As a result of that legal support your lawyer will determine which legal route is more advantageous for you, may produce alternative routes without bringing enforcement proceedings, according to the features of the particular case, and will also assess whether the debt can be collected.
3- First of all, it must be examined carefully whether there is a contract between the parties and, if there is, the question of the jurisdiction clause relating to that contract and whether the applicable law has been chosen. If a type of jurisdiction has been chosen and a country has been made competent, the enforcement proceedings are conducted taking the legal system of that country into account. The limits of that country’s exclusive jurisdiction must not, however, be exceeded.
4- If no such determination has been made between the parties, the basic rule is that the proceedings are conducted according to the rules of law of the country in which the debtor is located. If there is a decision given by a court and that judgment was given by a judiciary outside the country in question, it may be necessary to bring recognition and enforcement actions in order to proceed.
5- After the collectability of the debt and whether assets are being concealed have been assessed, contact is made with the debtor. The possible outcomes of the process are explained and a call is made for the debt to be paid. Subject to the creditor’s approval, payment facilities such as instalments may be granted on conditions such as the debtor providing security. This method is faster and more economical than enforcement proceedings.
6- If it is known that contacting the debtor will be of no use for the collection of the debt, or if the debtor has not complied with the conditions laid down, foreign enforcement proceedings are brought.
7- If the debtor objects to the enforcement proceedings, or where it is more advantageous for the collection of the claim, international actions for the debt may be brought. These depend entirely on the features of the particular case and on what the laws of the country concerned require.
Enforcement Proceedings and Collection of Claims in Europe
For foreign enforcement proceedings there is the “European Payment Order” in the European region. The European Payment Order came into application with the regulation issued by the European Parliament in 2006. It may be said to correspond to the payment order without a judgment in our own judicial system.
It should be known that the European payment order is a method concerning only the collection of cross-border claims. It cannot be used where the debtor and the creditor are in the same country.
A citizen of any country may use this method to bring foreign enforcement proceedings against a debtor living in Europe. The European Payment Order is not a route available only to citizens of European Union member states. It is enough, for “European enforcement proceedings without a judgment” to be brought, that the debtor is resident in any one of the European Union member states.
In order for a European payment order to be issued, an application complying with the procedure must be prepared. In the content of the application the applicant must state the amount of the claim, the events and the dispute from which the claim arises, and the evidence showing the claim. When making the application, Form A annexed to the regulation must be completed. Form A must be completed in the language of the court to which the application is made. The signature of the creditor must appear on the application. This signature may be made physically or as an electronic signature. The application is made to the relevant court by post, electronic mail or fax, or by physical delivery.
For proceedings against a person whose domicile is within the sovereign territory of one of the member states, the courts of that member state are competent, regardless of that person’s nationality. If the claim in question arises from a contract and the debtor under the contract is in the position of a consumer, only the courts of the member state in which the consumer is domiciled are regarded as having international jurisdiction.
Some conditions that must be met for the European Payment Order route to be used are as follows.
The amount of the debt must be certain.
The debt must have become due at the moment of the application for the order to be issued.
The debt must have arisen as a result of legal or commercial relations.
The debt must not have arisen as a result of the following: claims arising in the liquidation of a matrimonial property regime, in bankruptcy or in insolvency liquidation, claims in inheritance, or claims based on social security.
The applicant must also declare, when making the application, that they accept that they will be held liable under the law of the country in which they make the application for all false information given deliberately.
In the European payment order a notice is sent by the court. This is not a step taken for the purpose of adjudication; it is the conduct of enforcement proceedings.
This payment order may be enforced directly in the EU member states without any need to bring recognition and enforcement actions. By this method, where the debtor has their domicile or habitual residence in any European Union member state (except Denmark), an application to proceed may be made for the collection of the claims and, if the court decides that the application meets the necessary conditions, it sends a payment order to the debtor.
If the application to proceed is refused, the applicant will not be able to have recourse to any legal remedy. The refusal decision does not, however, have the character of res judicata in the substantive sense, and a new application to proceed may be made for the same claim.
The European payment order covers claims that are due at the time of the proceedings and that are generally below certain amounts. Apart from this, it is also possible to proceed with a general payment order for other monetary claims.
The application is made to the courts of one of the European Union member states. After the necessary examinations have been carried out, a payment order is sent to the debtor. After service, the debtor has a period of 30 days to object. The debtor must direct their objection to the court that issued the payment order. Otherwise the proceedings become final and enforceable.
The objection to the debt may also be made by hand or by e-mail or fax. Where the objection is made by post, the date of the objection is taken as the day on which it was posted, not the day on which the letter of objection reaches the court.
Where the proceedings become final, compulsory enforcement is carried out in accordance with the rules of the country in which the debtor is located. In that case the debtor must be in one of the European Union member states. In this way the order becomes enforceable.
A final European Payment Order becomes enforceable, without any need for recognition or enforcement proceedings, in all European Union countries except Denmark in which the debtor’s assets have been identified.
The applicant/creditor may make the application through a lawyer or in person. We too provide services in this field at our office. Incorrectly carried out procedures will cause the applicant creditor to lose rights. For this reason it will be of benefit for foreign enforcement proceedings to be conducted through a lawyer. You may contact our office to request our services.
Source:
KARAASLAN, Varol, “Avrupa İlamsız İcra Tüzüğü”, https://jurix.com.tr/article/3949
