The Regulation of the European Parliament and the Commission No. 1896/2006 on the European Ilam-Free Enforcement Procedure, published in the Official Gazette on 30.12.2006, entered into force on 31.12.2006. on 12.12.2008, it became binding on the member states. The purpose of the adoption of the European Regulation on Non-Binding Enforcement Proceedings is to facilitate the identification and enforcement of cross-border, non-contentious money receivables.
Scope and Procedure of Application of the European Ilam-Free Enforcement Procedure
2 of this charter. As stated in the article, AIU finds the ability to be applied only in legal and commercial cross-border work. But here the type of jurisdiction does not matter. That is, it does not matter whether it is a general court or an employment tribunal.
Cross-border legal issues exist if the place of residence or habitual residence of at least one of the parties is in a member state other than the country of the referred court (AIIT m. 3, I). 59 and 60 of the Regulation of the Council of the European Union on the Jurisdiction of Courts in Legal and Commercial Matters and on the Recognition and Enforcement of Court Decisions. according to the articles of AIIT m. 3 is detected according to II. AIIT does not find a field of application for purely national legal issues
In terms of cross-border legal and commercial affairs, many exceptions have been provided that the AIIT will not be applied (m. 2, II). These are issues related to the marital property regime, inheritance law, bankruptcy and incapacity liquidation, social security law. In principle, only the claims arising from contractual debt relations remain within the scope of the Statute from the remaining legal affairs. For claims arising from non-contractual debt relations, the European decommissioned enforcement procedure applies only if they are the subject of a contract or debt settlement between the parties, or if they are caused by joint ownership in real estate.
A limitation is also 4.it has been introduced with substance. In accordance with this article, AIIU is an element that can only be operated for a receivable that is certain in amount and is due at the time of application.
AIIT m. The international jurisdiction of the executive court in accordance with 6, I is determined in principle by its provisions. Article 2 of the Charter of the Council of the European Union on the Jurisdiction of Courts in Legal and Commercial Affairs and the Recognition and Enforcement of Court Decisions. in accordance with the first paragraph of the article, the courts of the member state are authorized, regardless of his citizenship status, to conduct proceedings against a person whose place of residence is located within the jurisdiction of one of the member states, regardless of his citizenship status. But m. 3, I’s m. it can also be concluded that another court is competent due to its submission to 5-24 (for example, the place of execution of a contract, the place of execution of a tort, etc.). If the claimed receivable originates from a contract and the debtor of the contract is also a consumer, then in this case only the courts of the member state in which the consumer is located are considered to have international jurisdiction (AIIT m. 6, II). This regulation serves to protect the consumer. The consumer cannot be forced to defend himself before the court of another member state.
Financially, local and functional jurisdiction of the executive court is not regulated in the AIIT. Therefore, these powers are determined in accordance with the national law of the member states whose courts have international jurisdiction.
APPLICATION FORM AND PROCEDURE
The European non-binding enforcement procedure begins only upon application. For application, it is necessary to use the Example-A (AXXEN-1) form contained in the annex to the European Ilamsiz Enforcement Regulation (October) (AIIT m. 7, I). The application must be signed. There is no obligation to hire a lawyer in order to apply (AIIT m. 24). AIIT m. 7, In accordance with IV, the creditor may explain against the court in the application that he has made that he has refused to transfer the execution without notice to the general court in case of the debtor’s objection. However, he may also make this statement later, until the payment order is issued.
What are the mandatory elements that must be applied for? m. It is mentioned in 7, II.
Accordingly, the applicant must, inter alia, drink the following information:
The amount you will receive (principal receivables, interest, contractual penalty and expenses),
Information about the event in which the receivable is retained and the subject of the dispute,
What is the evidence that serves to establish the existence of the receivable. There is no need to attach evidence (for example, bills of exchange).
The creditor must also declare that he has disclosed the information he has as much as possible and has accepted the sanctions provided for in the law of the member state of origin due to the erroneous information he has deliberately provided (AIIT m. 7, III).
The AIIT does not provide for the obligation to submit an application in a specific language. For this reason, the subject in which language the application should be made will be determined according to the national laws of the member state.
When applying for the issuance of a European payment order, court costs determined by the laws of the member state must also be paid (AIIT general justification m.15)
EXAMINATION OF THE APPLICATION
The court referred to the Ilamsiz enforcement path, whether the application falls within the scope of the regulation of the AIIT, whether it is authorized and whether the AIIT m. examines whether the requirements of the figure stipulated in 7 have been fulfilled (AIIT m. 8). The court also considers whether the request seems justified (AIIT m. 8, c. 1) examines it. This makes it possible for the court to accurately examine whether the request is justified (AIIT General Justification m. 16, c. 2).
POSSIBLE DECISIONS OF THE COURT
Provision of Correctional Facility for Correction
M you BELONG to the application. if it does not meet all the requirements for the shape and content specified in 7, AIT m. 9 provided for a special correction procedure. Accordingly, the executive court cannot immediately reject the application. On the contrary, it allows the creditor to complete or correct his application within an appropriate period of time determined by him. Correction is again done with printed forms. For this, the court uses Example-B (ANNEX-2) october the AITT Annex.
Invitation to Change the Application
If the application conditions have been met only for a part of the claim submitted, the court notifies the creditor of this. For this purpose, the Example-C (ANNEX-3) october in the Annex to the AIIT is used (AIIT m. 10, I). The executive court asks the creditor to accept or reject the partial amount indicated in the payment order. The creditor gives his/her answer by sending the printed form back to the court within the period appointed by the court. If the creditor accepts the court’s proposal, the court issues a payment order based on the amount accepted by the creditor. The fate of the remaining part of the request shall be determined in accordance with the law of the member state. In turn, if the creditor refuses the invitation of the court or does not comply with this invitation, the court completely rejects the request for the issuance of a European payment order (AIIT m. 10, III). The creditor is informed about this legal result with the Example-C sent to him. (AIIT m. 10, I, c. 2).
Refusal of the Application
AIIT m. if the conditions listed in 2, 3, 4, 6 and 7 (scope of application, international jurisdiction, form and content of the application) have not been fulfilled when submitting the application, the court rejects the request for a European payment order (AIIT m. 11, I, c. 1/a). The fact that the claim put forward is clearly unfair, or the creditor does not make the necessary correction within the appointed time, or the application is rejected, leads to the result. The creditor is informed about the reasons for the refusal by Example D (ANNEX-4) in accordance with October IV.
There is no legal way to oppose the decision to reject the application (AIIT m. 11, II). In turn, this path can be resorted to if the national law provides for an audit path within the same degree of jurisdiction. There is a way of inspection, for example, if it is rejected by a German Court. In German courts, the decision is made by the Assistant Justice Officer. Against this, the Assistant Justice Officer Act m. 11, it can be appealed within 2 weeks in accordance with II. The Assistant Justice Officer may accept the appeal; if he does not, he submits the file to the (court of first instance) judge for decision. The judge decides the appeal definitively.
Issuance of a European Payment Order
As a result of the examination of the application, according to the situation, AIIT m. after completion, correction or modification of the application in accordance with 9, 10, the Application,
If Europe is entering the field of application of ilamsiz enforcement procedure,
If the court is authorized,
If the application meets the necessary requirements in form and content,
If the claim put forward does not seem clearly unjustified,
The Court issues a European payment order (AIIT m. 12, I, c. 1). The decision on the payment order is made as quickly as possible and, as a rule, within 30 days from the date of filing the application. The period required by the creditor to correct or amend the application is not included in this respite (AIIT m. 12, I, c. 2). For a European payment order, the Example-E (AXXEN-5) october the AIIT Attachment is used.
LEGAL WAYS THAT THE BORROWER CAN APPLY
Appeal Against the European Payment Order
The debtor, AIIT m. 16, He may apply for an appeal against the payment order before the court of origin in accordance with I. The appeal must be filed within a 30-day period from the date of notification of the payment order. The term is also maintained in the event that the appeal is submitted within its term.
Upon a duly filed appeal within the period of the ilam-free enforcement procedure, it automatically turns into a normal case before the court of the member state of origin. No special requests are required for this. However, a different procedure may be prescribed in the domestic law of the country where the competent court is located.
In Exceptional Cases, the Review
This legal remedy is permissible only in three exceptional cases:
AIIT m. 14 if the notification made in accordance with it was made without proving that the debtor has received it, and this notification was not made at a time when the debtor will need it to defend himself, without fault
If the debtor could not file an appeal without fault due to a force majeure or extraordinary circumstances,
If the European payment order has been issued as clearly unfair compared to the conditions set out in the AITT or based on other extraordinary circumstances (AITT m. 20, II). An example of such extraordinary situations is the case when the European payment order is based on incorrect information written on the application form.