Provisional Enforcement Questionnaire. Swedish National Report. Michael Berglund, Enforcement Director, Stockholm

Transcription

1 Prof. Dr. Burkhard Heß Study JAI A3/02/2002 Provisional Enforcement Questionnaire Swedish National Report Michael Berglund, Enforcement Director, Stockholm 1. Provisionally enforceable titles 2. Determination of provisional enforceability 3. Extent of provisional enforceability 4. Security 5. Rescission of provisional enforceability 6. Liability of creditors 7. Art. 47 Reg. 44/01/EC 8. Further protective measures Preliminary remarks The Swedish Enforcement Authority is responsible for enforcement of claims based on judgments and titles by the general and administrative courts, the special courts and orders by the administrative authorities. The Enforcement Authority also effectuates titles from the summary debt recovering procedure handled by the Enforcement Authority itself. These consist mostly of orders to pay but also of orders on repossessions and evictions. Some private documents can also be enforced as Preliminary remarks for instance contracts for maintenance allowance. The Enforcement Authority therefore have monopoly on enforcement of both public and private claims. The answers in this questionnaire deal with private claims. In Sweden the Enforcement authorities are independent from the courts. After a judgment, an order or an enforceable title from the summary debt recovering procedure has been given and is followed by an application from a party the Enforcement Authority has to independently consider if and to what extent it can enforce the title. The Enforcement Authority's decisions in this matter are made under supervision by lawyers with experience from courts. In principle all judgments and all titles must be legally valid to be enforceable, i.e. the period for ordinary appeal must have passed without an appeal having been made, the judgment may then be enforced unconditionally. An important exception is that it is possible to enforce court judgments, - 1 -

2 orders and other titles without legal validity if it is stated in the Swedish Enforcement Code (the Enforcement Code chapter 3) or if the court in it s judgment has ordered that it may be enforced even though it has not entered into final force (see the Swedish Code of Judicial Procedure 17:14 ). Chapter 3 of the Enforcement Code proscribes, amongst other things, that judgments and titles concerning private claims where an obligation to pay has been imposed can be enforced without being legally valid, i.e. immediately after it has been decreed. A court order according to the Code of Judicial Procedure 17:14 is seldom given but it has for example been used in a case concerning a parent s right to visitation. It can also be used in cases concerning eviction. This regulation, which seems to be typical of Sweden, means that in the vast majority (maybe more than 80 %) of cases handled by the Enforcement Authority, provisional enforcibility is possible. When an application for enforcement has been made, the Enforcement Authority decides on which goods to attach. The creditor can suggest on what goods to attach but the decision is on the Enforcement Authority. If the judgment order is not legally binding it is normally not possible to proceed further than to secure property or to decide on attachment on earnings. The property cannot be sold and no payment to the creditor will be made until the judgment is legally binding. Enforcement is possible without the creditor posting security. Questions 1. Please describe the different kinds of provisionally enforceable instruments (see art. 32 Regulation 44/01/EC) available in your country A judgment or an order by a court can be enforced before it is legally binding, even if the title is from a lower court (the Enforcement Code 3:6). The debtor can delay the enforcement by posting a security. The Enforcement Authority's orders to pay and non-money orders (assistance or eviction) in the summary debt recovering proceedings can also be enforced before they are legally binding, unless the court decides otherwise due to an application for a reopening of the case or due to an appeal. However, after an application for a reopening an appeal, attached property may not be sold without the consent of the debtor (the Enforcement Code 3:11-12)

3 Default judgments can be enforced as legally binding unless the court decides otherwise after an application for reopening or an appeal has been made, the Enforcement Code 3:5. A settlement which is confirmed by the court can be enforced as a judgment which has entered into final legal force, unless the court decides otherwise due to an action against the judgment or due to an action for a declaration of invalidity of the settlement, the Enforcement Code 3:13. Judgments, orders and contracts on maintenance allowance can be enforced as legally binding. If an action concerning a contract has been brought to court the court can order that enforcement may not take place until further notice, the Enforcement Code 3:19. Judgments of bills of exchange or cheque cases can be enforced immediately, the Enforcement Code 3:5. There are special regulations on arbitration awards but they can be enforced in the same way as a judgment that has entered into final force, if there is no impediment on the basis of the Enforcement Code 3:15 or 17. When a judgment, order or contract may be enforced as legally binding, attached property can be sold and funds may be accounted for. A court order where someone has been ordered to release personal property can be enforced immediately if security is provided for the recovery of the property and for any yield from the property. This does not apply if the obligation has been imposed as a special legal effect of crime. A courts judgment on eviction can not be enforced until it is legally binding unless the court has specifically ordered that it can be enforced in the judgment. Decisions about costs and expenses can be enforced in the same way as judgments and orders to pay judgment / decree See under 1. Judgments on payment can be enforced provisionally before they are judgment / decree legally binding order Like order for payment See under 1. The Enforcement Authority's orders to pay, which have been given following the summary debt recovering proceedure, can be enforced before they are legally valid, - 3 -

4 unless the court decides otherwise due to an application for reopening or due to an appeal decision or writ of execution Not applicable in Sweden 1.5. determination of costs or expenses Can be enforced in the same way as judgments and orders on payment in general, see above provisional measures As stated under 1, judgments and orders on payment can be provisionally enforced immediately even if they are not legally binding. If the applicant shows probable cause that he has a money claim and it is reasonable to suspect that the debtor will evade payment of the debt it is possible for the creditor to apply to a court for provisional security (or protective) measures, the Code of Judicial Procedure, chapter 15. Such an application can be made during the litigation or before it has started. As a general rule the applicant must deposit a security at the, for the loss that the opposing party may suffer, at the court (15:6). In most cases the opposing party is not notified in advance, neither of the the courts decision nor of the enforcement of the decision. Cases concerning superior right to certain property are regulated in a similar way Does provisional enforcement include the decisions about the costs and expenses of the mentioned decisions? See Is provisional enforceability ordered explicitly by the court or does it operate by law? 1 As stated under the preliminary remarks, provisional enforceability can be ordered explicitily by the court but it can also operate by law. Explicit orders from the court are seldom used Provisional enforceability ordered by court According to the Code of Judicial Procedure 17:14, a court can, if there is a reason for it, in its judgment, order that the judgment may be enforced even though it has not entered into it s final form. 17:14 is very rarely used by the courts. In judgments on eviction the courts sometime order that the 1 Please answer the questions No and 3. et seq. with regard to both explicit order by the court and provisional enforceability by law

5 eviction may be enforced even though the judgment is not yet legally binding Who decides on provisional enforceability (court of first instance, appellate court)? In cases when provisional enforceability is explicitly ordered by courts, courts of all instances can make such a decission. Appellate courts can decide on stay of execution Is provisional enforceability ordered ex officio (i.e. on the court s own motion) or only on application of the party? On application of the party Under which conditions does the court order provisional enforceability? As said above it is seldom used. See also Are there legal provisions? Content? The Code of Judicial Procedure 17:14. The court may, if there is a reason for doing so, in it s judgment, order that the judgment may be enforced even though it has not entered into it s final form Does the court have discretion? Yes, see If so, which criteria does the court apply when exercising its discretion subject to exceptions? According to the legislative comment the court must consider the winning party's wish to have his claim fulfilled immediately as well as the damage the losing party will suffer. The prospects for an appeal shall also be considered Provisional enforceability operating by law In which cases does provisional enforceability operate by law? See under 1. Judgments and enforceable titles concerning private claims, where an obligation to pay has been imposed, can be enforced without being legally binding Does the judgement (also) have to mention that it is provisionally enforceable? No, not when the enforceability operates by law Is the court able to suspend provisional enforceability? See under 1. Only when it is possible after an application for a reopening of a case or due to an appeal against an order to pay in the summary debt recovering proceedure, a settlement which is confirmed by a court, contracts on maintenance allowance and default judgments If so: under what conditions (e.g. request of a party, discretion of the court)? - 5 -

6 On request of a party Is provisional enforceability subject to exceptions? E.g. claims that are not yet due A claim is only enforceable if there is a judgment given by a court or some other title, as mentioned above. This means that the claims have to be due. In provisional attachments, se 1.6 above, it is, in certain cases, possible for a court to make a decision if the claim will be due during the proceedings E.g. claims that are not liquid (i.e. claims depending on a counterperformance) In general only titles and judgments concerning an obligation to pay can be enforced without being legally binding, see above. Judgments on assistance can be enforced only after they are legally binding. By posting a security it is possible for the applicant to get enforcement immediately. There are no special regulations for claims depending on some counterperformance E.g. where the debtor needs special protection Other exceptions? 2.4. May provisional enforceability be limited to a part of the claim? There are no exceptions from the rules as reported under 1. above Please describe additional requirements for the provisional enforceability, such as Danger from delay? Danger from frustrating the final enforcement? As reported above different kinds of judgments and orders can be provisionally enforced without being legally binding. Before attachment takes place the Enforcement Authority shall notify the debtor of the case (the Enforcement Code 4:12). The notification shall take place within such a time that the debtor can be expected to have sufficient time to protect his rights (normally days). If there is a risk that the debtor will conceal or destroy property, or if the matter is urgent for some other reason, the debtor need not be notified. Se also Time limits? Other requirements? - 6 -

7 3. Extent of provisional enforceability 3.3 Does provisional enforceability allow for the seizure of the debtor s assets? Yes. The Enforcement Authority can attach and secure the property. See also under Does provisional enforceability allow for realization (e.g. sale; compulsory management of immovable property) of the debtor s assets? Normally the Enforcement Authority is not allowed to sell the property before the title is legally binding or can be enforced as a judgment which has entered into final legal force (see 1). The Enforcement Authority can sell personal property before a final judgment only if the debtor agrees on it, if the value of the property is rapidly falling or if the costs for keeping the property in custody are too high, the Enforcement Code 8:4. When immovable property (real property) is attached the Enforcement Authority shall, at the request of the creditor and if there is reason to do so, appoint an agent to receive rent and/or take care of and administer the property. The Enforcement Authority can receive rent on the same premises, the Enforcement Code 12: Is provisional enforcement limited to certain parts of the debtor s assets, e.g. exception of immovable property? No. In general, claims shall be made against which ever assets that involves the least cost, loss or any other inconvenience to the debtor. This means that the Enforcement Authority normally attaches salary or other regular incomes before personal or real property. 4. Is provisional enforceability subject to a security posted by the judgement creditor/s? The creditor does not have to post a security to get enforcement after a judgment or an order were an obligation to pay has been imposed. A judgment or an order for someone to release personal property may be enforced immediately only if security is provided for the property together with any yield from the property, the Enforcement Code 3:8 The debtor can post a security to hinder enforcement of a title were an obligation to pay has been imposed, the Enforcement Code 3:6. According to the Code of Judicial Procedure, 17:14, the court can, if there is reason, require that security be posted to cover damages for which a party may be liable if the judgment is changed. As mentioned this article is seldom used

8 4.1. Who orders the posting of the security? The court (the Code of Judicial Procedure, 17:14) or the Enforcement Authority Under which conditions does the creditor have to post a security? See legal provisions? Are there The Enforcement Code 3:8 and the Code of Judicial Procedure 17: Does the court or any other organ exercise discretion? According to the Code of Judicial Procedure, 17:4, the court may require a security if there is a reason to do so. Since this article is seldom used, there is not much experience in the courts concerning security in such cases. The doctrine states that the prospects of appeal shall be considered. See also The security posted to the Enforcement Authority after a judgment or order where someone has been ordered to release personal property shall provide for recovery of the property together with any yield from the property If so, in which way does it normally use this discretion? Are special circumstances taken into account when ordering the security (either the regulation or by using the discretion)? Are special circumstances taken into account when E.g. where the creditor needs protection (maintenance claims)? E.g. low prospects of the appeal? See Other cases? 4.3. How is the security posted? The security is posted at the court (to the Code of Judicial Procedure, 17:4) or at the Enforcement Authority Please describe the usual ways. The security required by the Enforcement Authority shall comprise a pledge or guarantee, in reality this often means a bank guarantee. Since this article is seldom used, there is not much experience in the courts concerning security in such cases, but a bank guarantee should be sufficient How is the posting of the security proved? - 8 -

9 See Is the posting of the security (or its amount) subject to negotiation? At the court? There is no actual regulation in this matter and there is not much experience in the courts. It is possible to appeal to higher court At the registrar? Not applicable in Sweden At the enforcement organ? Security is posted by the applicant only when someone has been ordered to release personal property. If the security is not approved by the person for whose benefit the security shall apply, it shall be considered and decided upon by the Enforcement Authority In front of an other organ? Not applicable in Sweden What factors are considered when deciding on the amount of the security: For the Enforcement Authority, see According to the Code of Judicial Procedure, 17:14, the security shall cover the damages for which the party may be liable if the judgment is changed The amount of the claim? Collateral claims, like interests, costs of the litigation? Is a potential claim of the debtor for compensation taken into account? 4.6. Can the security be posted for parts of the claim only? 4.7. May the security be remitted / waived later? An appeal can be made against a decision by the Enforcement Authority or by a court. Otherwise not applicable in Sweden Competent organ? Conditions? 4.8. If the provisional enforcement allows the realization of the debtors assets (see 3.2.): Are protective measures possible without the posting of a security? A security from the creditor is not necessary in those exceptional cases were realization is possible. 5. Can the provisional enforceability be rescinded? 5.1. Competent organ? - 9 -

10 See under 1. After an application for a reopening of a case or due to an appeal against an order to pay in the summary debt recovering proceedure, a settlement which is confirmed by a court, contracts on maintenance allowance and default judgments the court where the case is handled can stay the execution. When the provisional enforceability is court-ordered, it is also possible for a higher court to stay the execution Conditions? e.g. the posting of security by the debtor? The debtor may post a security to the Enforcement Authority to hinder provisional enforcement of judgments or court-orders that are not yet legally binding. There are different kinds of securities depending on if the title originates from a district court or from an appellate court. The security shall be in correspondence to the obligation. The Enforcement Authority decides if the enforcement shall stop e.g. high prospects of the appeal? When the court decides to stop an execution (se 5.1) it generally considers the prospects of the appeal and which damages the execution could cause. 5. Must the creditor compensate damages to the debtor, caused by the provisional enforcement? 5.1. Is that claim based on unjust enrichment? 5.2. Is that claim based on tortuous liability? 5.3. Is that claim based on strict liability? Strict tort liability, the Enforcement Code 3: Provisional enforceability of foreign judgments under Art. 47 Reg. 44/01/EC 6.1. Which protective measures are available in your country in cases of Art Reg. 44/01/EC? Provisional protective/security measures, see 1.6, second and third paragraph Requirements of these measures? See Which decisions usually comply to these requirements? Foreign judgments which can be enforced in Sweden. Case-law from The Supreme Court, 1983 s foreign judgment authentic instrument court settlement order order for payment decision or writ of execution determination of costs and expenses

11 All of the decisions under comply to these requirements Compared to the Brussels Convention does Art Reg. 44/01/EC improve the situation of foreign creditors? (according to Art Brussels Convention the creditor required a declaration of enforceability to proceed to any protective measures) Improvement of speed? According to Swedish law a decision of provisional protective/security measures is an automatic consequence of a declaration of enforceability. Art 47 1 can therefore only mean a marginal improvement of speed Improvement of costs? To get a decision of provisional protective/security measures the applicant, as a general rule, must deposit a security at the court for the loss that the opposing party may suffer, see 1.6. The applicant cannot get compensation for his litigation costs in first instance (the Code of Judicial Procedure, 15:5). Otherwise no difference What documents does the foreign creditor must present? 2 There is limited experience in the courts of applying Art In general (se 1.6.) the creditor has to show probable cause that he has a money claim and it should be reasonable to suspect that the debtor will evade payment of the debt. There is no special regulation on Art 47 1 in the Code of Judicial Procedure Official copy of the decision? See Proof of service? See In which form must the documents be presented? When no proceedings are pending the application shall be made in writing, the Code of Judicial Procedure, 15:5. The application can formally be made by using telefax but according to the Code of Judicial Procedure, 33:3, paragraph 3, the court may, if it is necessary, request that a telefax (or other message which is not signed with an original signature) is acknowledged with an original signature Is a translation required? There is no formal regulation on translation of documents presented to the court. There is a risk, however, that 2 Please describe the particular provisions of your national law, to which article 47 (1) of the regulation 44/01/EC refers

12 untranslated documents may be unconsidered by the court (the Code of Judicial Procedure 33:9) or that it is not enough evidence of the claim, (see 1.6) Which protective measures are available in your country in cases of Art Reg. 44/01/EC? Provisional security (or protective) measures, see and What documents does the foreign creditor must present (see )? Following documents must be presented to the Enforcement authority: The foreign judgment and a declaration of enforceability from Svea Hovrätt (the Swedish Court of appeal, see Appendix II, Reg.44/01/EC How does an appeal in the Member State of origin (Art Reg. 44/01/EC) affect the provisional enforceability? Svea Hovrätt or the Supreme Court may stay the proceedings Does your national system precise the alternatives of Art. 46 Reg. 44/01/EC ( 1: stay the proceedings / 3: order a security)? No If not, how is this situation normally dealt with by the courts? There is limited experience from Svea Hovrätt What are the effects of a remedy against the declaration of enforceability (Art Reg. 44/01/EC)? Until Svea Hovrätt or the Supreme Court has decided upon the remedy only provisional protective/security measures are possible Does your national law hold out legal provisions? No If not, how is this situation normally dealt with by the courts? There is limited experience from Svea Hovrätt. 8. Please describe further provisional / protective measures available after the rendering of a judgment? (Please answer briefly to the following questions.) 8.1. Which measures are there? No further measures Requirements? 8.3. What is their relationship to provisional enforcement? 8.4. Which measures (both measures mentioned in 9.1. and provisional enforcement) are normally used?