No right of appeal rejection payment order violates EU law permalink

24 June 2021 | European payment order, rejection, principles of effectives and equivalence

Upon request by Ten Hoeve & Van der Horst Incasso, the Swedish Enforcement Authority (SEA; Kronofogdemyndigheten) issued a European payment order (EPO) against a debtor in the Netherlands. For the service of the EPO, the SEA chose to enlist a Dutch bailiff (gerechtsdeurwaarder). The SEA demanded that Ten Hoeve & Van der Horst Incasso pay for this service, even though according to §7 of the Swedish Service Regulation (Delgivningsförordningen) the agency responsible for service should pay for it. Ten Hoeve & Van der Horst Incasso thus refused to pay for the service.

Since the service did not take place, the SEA rejected the EPO request on the basis of the European Payment Order Act (EPOA; Lag (2008:879) om europeiskt betalningsföreläggande). According §12 EPOA decisions based on the EPOA may not be appealed. Ten Hoeve & Van der Horst Incasso appealed the rejection to the Stockholm District Court (tingsrätt), arguing the error in the rejection of the EPO request. Ten Hoeve & Van der Horst Incasso also stated that a right to appeal to a court follows from the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (ECHR). The District Court rejected the appeal pointing to §12 EPOA.

Ten Hoeve & Van der Horst Incasso then decided to appeal the District Court's judgement to the Svea Appeals Court (Svea hovrätt), relying in addition on the principles of effectiveness and equivalence. The Appeals Court ruled that in cases of failed service, §12 EPOA violates the principles of equivalence and effectiveness. Rejections in national payment order procedures can be appealed, resulting in unequal treatment. Furthermore, by excluding the possibility of appeal, interpretations of the law by SEA will never be subject to judicial review. The Appeals Court also took into account that the SEA is applying EU legislation and that requests for a preliminary ruling by the EU Court of Justice may be necessary. Such requests would not be possible without the possibility of appeal. The Appeal Court reversed the District Court's judgement and referred the case back to the Naka District Court.

Judgement: Svea hovrätt 11 June 2021, Ö 12763-20