The complaint to the European Commission

1. The complainant represents a group^[1] of Hungarian citizens who concluded mortgage loan agreements with Hungarian banks. These loans were concluded in the form of authentic acts in Hungary and under Hungarian law. Having encountered problems with the banks in question (failure to transfer the entire loan amounts), the complainant turned to the Slovak courts seeking to obtain European Enforcement Orders^[2] (hereinafter ‘EEO’) with a view to enforcing them in Hungary.

2. To this end, the complainant appeared before a Slovak notary who took the statements and produced them in an authentic act in accordance with Slovak law. She then asked a Slovak court to certify these acts as an EEO.

3. The Slovak courts refused such certification on the ground that the conditions set out in Regulation 805/2004^[3] for issuing an EEO for uncontested claims (hereinafter ‘the Regulation’) were not met, notably the requirement of Article 3(1)(d) that the authentic act must contain the express agreement of the debtor to the claim^[4] (‘the decision’).

4. In August 2017, the complainant lodged a complaint with the Commission arguing that the Slovak court should have delivered the certificates.

The Commission’s response to the complainant

5. In September 2017, the Commission replied that the debtor had not agreed to the claim in the authentic instruments drawn up in Slovakia, and therefore, the refusal of certification was not in breach of the Regulation.

6. In her reply, the complainant argued that the Commission should instruct the Slovak court to issue the certificates requested, and reimburse her the costs of translating its decision.

7. In October 2017, the Commission stated that “(...) (Regulation 805/2004) is clear on this, that the authentic act could be certified as a[n] EEO if it contains express agreement of the debtor to the claim. Such certification could be done only by the authorities designed to this end by the Member State in which this authentic act, containing mentioned expressed agreement, has been drawn up. In [the complainant’s] case such an agreement is allegedly expressed in the authentic instruments drawn up in Hungary, therefore only Hungarian authorities designated to this end are competent to decide on their certification as the EEOs. Authentic instruments drawn up in Slovakia do not contain such debtor´s agreement, thus cannot be certified as EEOs at all”. Finally, the Commission informed the complainant that under the Treaties it “is not empowered to influence directly judicial proceedings in the Member States, in particular through obliging judicial authorities to take or to quash any decisions”.

8. In November 2017, the complainant insisted that the Commission should take action and reiterated her previous claims. In turn, the Commission confirmed its position.

9. Dissatisfied with this reply, the complainant turned to the Ombudsman in May 2018, arguing that the Commission should (i) declare the decision of the Slovak court to be in breach of Regulation 805/2004, and (ii) oblige the said court to pay for the translation costs of its decision.

The European Ombudsman's findings

10. The Ombudsman notes that in order to certify an uncontested claim as an EEO, the debtor needs to expressly agree to it in an authentic instrument, pursuant to Article 3(1)(d) of the Regulation. Moreover, an uncontested claim must be registered as an authentic instrument by the authorities in the Member State in which it originates.  

11. Since the authentic instruments drawn up in Slovakia did not contain any express agreement on the part of the debtor, they could not be certified as EEOs. In this regard, the Commission’s explanation is both reasonable and correct.

12. The Ombudsman further notes that the Commission acts as Guardian of the Treaties. In this role, however, the Commission cannot quash a national court’s judgment or issue an injunction order the said court to act in a certain way. The Commission’s position as regards the complainant’s claims was thus correct and in line with the powers conferred upon it by the Treaties.  

13. Based on the above considerations, the Ombudsman finds that no maladministration^[5] occurred in this case.

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 08/10/2018

 

[1] The complainant represents 118 individual cases, dealt with by the Ombudsman jointly under this complaint number.

[2] European Enforcement Order is a simple procedure that can be used for uncontested cross-border claims. This procedure allows a judgment in an uncontested claim delivered in one Member State to be easily recognised and enforced in another Member State.

[3] Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ L 143, 30.4.2004, p. 15–39.

[4] In accordance with Article 3(1): “1. This Regulation shall apply to judgments, court

settlements and authentic instruments on uncontested claims. A claim shall be regarded as uncontested if: (...) (d) the debtor has expressly agreed to it in an authentic instrument”.

[5] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions