The European order for payment applicative uncertainties

The European order for payment (“EOP”) is an instrument introduced by Regulation (EC) No. 1896/2006 aimed at a swift recovery of undisputed outstanding debts arising out of cross-border civil and commercial relations. The EOP may be issued by courts solely on the basis of the information provided by the applicant, without the court being required to verify the legitimacy of the application. The defendant may lodge a statement of opposition to the EOP with the court of origin and, where such statement is timely entered, the proceedings shall continue in accordance with the rules of ordinary civil procedure. The regulation of such transfer to the ordinary civil proceedings has been left to Member States.

The use of the EOP generates some applicative uncertainties precisely with regard to the above said transfer, as to which the Italian Legislator has failed to lay down specific rules. Fortunately, case-law has taken steps to fill this gap by way of indicating the procedure that parties and courts must follow: once verified that the opposition has been timely filed, the Court shall

• serve the defendant’s statement of opposition on the applicant, through the registry;
• set a deadline to the applicant-claimant for supplementing the application and the facts at its foundation with a writ of summons, that the claimant shall notify to the debtor;
• arrange a hearing for the appearance of the parties;
• assign to the defendant-debtor the right to file a pleading in defense before the abovementioned hearing.

Italian case-law has given her opinion also on the mode of submitting deeds in the proceedings at issue: notwithstanding the general rule per which all judicial acts must be submitted in electronic form at the portal of the competent court, the opposing party may file deeds both in paper and electronic form. Indeed, as clarified by the Court of Monza by order dated November 4th 2016, the electronic form cannot be imposed by individual Member States as a further requirement as to form, in accordance with Art. 16 of the Regulation, but it should be considered nevertheless allowed, in that it constitutes a means of communication accepted by Italy and available to the court of origin.

The EOP is certainly a useful tool in terms of simplicity; indeed, the pieces of information to be provided to obtain the order for payment are extremely basic and, with a view to prevent the order from becoming enforceable, the defendant may simply generically contest the existence of the credit, without having to attach any evidential element. The EOP also involves financial advantages, because representation by a lawyer is not mandatory, at least in the phase preceding the transition to the ordinary proceeding.

However, in the light of the above applicative uncertainties, before applying for a European order for payment, it is advisable to check the practice adopted by each Country, if necessary by contacting the competent courts, or by checking if the matter has been regulated through other sources.