Annexes to COM(2008)128 - Green Paper - Effective enforcement of judgments in the EU: the transparency of debtors’ assets - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)128 - Green Paper - Effective enforcement of judgments in the EU: the transparency of debtors’ assets. |
|---|---|
| document | COM(2008)128  |
| date | January 1, 1945 |
[29] Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of the agricultural levies and customs duties , OJ L73, 19.6.1976, p. 18.
[30] Council Directive 2001/44/EC of 15 June 2001 amending Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties and in respect of value added tax and certain excise duties , OJ L 175, 28.6.2001, p.17.
[31] Commission Directive 2002/94/EC of 9 December 2002 laying down detailed rules for implementing certain provisions of Council Directive 76/308/EEC on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures , O J L 337, of 13.12.2002, p. 41.
[32] In this context, please note that also Art. 44 of the Commission Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (COM (2005) 649 final) provides for a system of cooperation between national central authorities which “shall give access to the information which can facilitate the recovery of maintenance claims”. This information is provided in order to achieve, inter alia, the objectives to “locate the debtor” and to “evaluate the debtor’s assets”:
[33] E.g. France and the United Kingdom.
[34] Denmark, Germany, Estonia, Ireland, Greece, Spain, Austria, Portugal, Finland, Sweden, United Kingdom (England and Wales).Belgium, France, Italy, Luxemburg, Netherlands and Scotland do not provide for a debtor’s declaration. However, in France there is a limited obligation of the debtor to disclose a bank account, in the Netherlands, the enforcement organ can request the debtor disclose his earnings, in Belgium, the debtor must reveal his assts when applying for a protective order. The introduction of a debtor’s declaration is discussed in Italy.In Latvia, there is no debtor’s declaration as such. However, according to the Civil Procedure Law (Articles 552 and 557), at the stage of the enforcement of a decision or a judgement of a court the debtor has to provide information to the sworn bailiff about his financial situation. For providing intentionally wrong information to the bailiff about his/her financial circumstances the debtor may be subject to administrative or criminal liability.In Romania, there is no obligation of the debtor to make a statement on its assets/income before a writ of enforcement is obtained. According to the Code of Civil Procedure, the bailiff has the duty to insist by all the means permitted by law, for the achievement in full and with celerity of the obligation provided in the writ of enforcement. The bailiff may request the debtor to make a written statement regarding its income and assets, and the place where such are located (art. 373 of the Civil Procedure Code).In Cyprus, the debtor seeks the court’s assistance in order to be declared bankrupt. At the first stage the debtor applies to the court for a receiving order and is subsequently declared bankrupt by the court.
[35] In Denmark, Ireland, England, Austria and Spain.In Bulgaria, at present the Code of Civil Procedure of 1952 does not contain any rules about a debtor´s declaration. According to Art. 448 of the Code of Civil Procedure which will come into force on 1 March 2008, the debtor will be obliged to appear before the district court and to declare all his property and income, if the established debtor´s property is not sufficient. For obtaining a debtor`s declaration the bailiff must file a request before the regional court which shall consider the request at an open hearing. For incorrect information or the refusal to appear before the court or to disclose his property, the debtor bears responsibility under Art. 290a of the Penal Code and can be punished by imprisonment of up to three years.In the Czech Republic, there is a declaration of assets (§260a – 260h of the Code of Civil Procedure). There is no specific form, and the declaration can be also made orally before the court. The refusal of the debtor to disclose his assets or wrong declarations are sanctioned by a term of imprisonment of up to one year or by a pecuniary penalty (§256 d of the Criminal Code).In Slovenia, the debtor is obliged, upon an application by the creditor or at the discretion of the court, if the creditor proves presumptively that the proposed execution measures will not suffice for the satisfaction of his claim, to submit at any time during the execution procedure an inventory of his property together with a proof of ownership and other real rights in respect of this property, and to state the evidence which supports his claims. The court shall order the debtor to submit the inventory of his property by decree. If the debtor fails to produce the inventory by the deadline given by the court, the court shall hold a hearing at which the debtor shall be questioned concerning the facts regarding the inventory of his property. The court shall instruct the debtor on the consequences of perjury. A debtor who has been duly summoned but fails to appear at the hearing, or who, at the hearing or in the inventory of his property, does not state accurate and true data shall be punished by a fine not exceeding EUR 4173 in the case of natural persons, and EUR 41730 in the case of legal persons and sole proprietors.
[36] This is the case in most of the Member States.
[37] In Ireland and England.
[38] Germany, Spain, Austria, Sweden.
[39] E.g. in Spain and Portugal.
[40] In Ireland and England, the failure to comply with a court order is considered as contempt of court.
[41] Denmark, Germany, Ireland, England, Greece, Spain, Austria, Portugal, Sweden.
[42] In Estonia, a court may impose compulsory attendance or detention on a debtor, who - without good reason - fails to submit the list of assets to the bailiff or fails to perform the obligation to take an oath. A debtor may be sentenced to detention for up to thirty days. One year after taking an oath, a debtor is required to take an oath once again only if the bailiff has reason to believe that the debtor has acquired assets after taking the oath.
[43] E.g. in Estonia, a court can - at the request of a bailiff or of a claimant - require a debtor to swear in court that the information submitted to the bailiff concerning his assets is correct.
[44] See above, footnotes 33 and 34.
[45] This is the case in Belgium for consumers’ insolvency.
[46] See article 12.4 of the proposal from the group of experts in the Storme report (ed.) Rapprochement du Droit Judiciaire de l`Union européenne, p. 210-211.“For the protection of a judgment creditor who establishes his inability to find sufficient assets in the hands of the judgment debtor for the satisfaction of the judgment, the law of Member States shall provide:1. that the debtor shall disclose in their entirety the nature and location of his assets. Such disclosure shall be made to the creditor or the proper authority as provided by law;2. that the proper authority may require third parties to disclose any information relating to the assets of the debtor which is in their possession. “Third parties” includes any institution which holds an account in the name of the debtor.3. sanctions whereby these obligations may be enforced.”
[47] Please note that it is already the case that territoriality does not apply to the debtor’s declaration according to the practice in some Member States (especially in Austria, Germany and England). The obligation of the debtor to deliver an affidavit is not limited to his domestic assets, but the debtor must disclose his entire assets, including those abroad.
[48] http://ec.europa.eu/justice_home/judicialatlascivil/html/fillinginformation_en.htm