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Enforcement is part of the response to the constitutional mandate laid down in that supreme rule of law which entrusts judges with the task of judging and of enforcing judgments (Articles 117 and 118 of the Constitution). Therefore the parties to proceedings are under the obligation to comply with judgments and other judicial decisions and to collaborate as required in the enforcement of what has been decided. It is for the judge to ensure that these requirements are met in full.
Enforcing a court decision means complying with and obtaining the full right gained by the party that won the dispute. This may involve a request by a plaintiff for the return of a certain amount of money, the right to ask a defendant to do something or to refrain from doing something, or a request to have a right recognised by registration in public registries.
Enforcement may be definitive or provisional. In the latter case, a judgment is enforced which is not yet final to avoid a situation where the creditor fails to obtain satisfaction because of delays in the proceedings (Articles 524 to 537 of the Code of Civil Procedure).
In principle, it is necessary to have a final court decision or other instrument that permits enforcement (except in the case of provisional enforcement, which is accepted in some cases for final decisions).
Enforcement must be based on an instrument which is enforceable.
Only the following instruments are enforceable:
A protest of forgery of the security formulated during the matching process will not, if the items match, prevent the enforcement decision from being issued, without prejudice to the subsequent opposition to enforcement that may be made by the defendant, arguing that the security is forged;
1. Certificates that have not expired, issued by the bodies responsible for the registers, showing securities represented by means of entries in accounts referred to in the Law on the Stock Market, provided that they are accompanied by a copy of the public instrument representing the securities or, where appropriate, the issue, where this is necessary in accordance with the legislation in force.
Once enforcement has been sought and granted, the certificates referred to in the first paragraph do not expire;
1. The writs setting down the maximum amount that can be claimed by way of compensation, drawn up in the event of non-appearance in court of the accused or of an acquittal or dismissal of action in criminal proceedings initiated with respect to events covered by compulsory third party liability motor vehicle insurance;2. Other court decisions and documents which, by virtue of this or of another law, are enforceable.
There are two possibilities, depending on the instrument to be enforced.
The general rule is to involve a judicial authority, although in the case of foreclosure, and provided that this has been expressly agreed, the sale of the mortgaged property may be carried out via a notary.
The judge in the Court of First Instance who issued the judgment to be enforced. If the enforceable instrument is not a judgment, there are special rules for assigning competence which usually indicate that the judge in the place of residence of the defendant is competent.
Always, except in the enforcement of decisions relating to amounts of less than €900.
The service provided by the court is usually free except in the case of corporate persons, which have to pay a fee, collected by the Board of Inland Revenue, if their turnover is significant.
The fees of lawyers and solicitors are regulated by their corresponding professional associations. Persons entitled to free legal aid can continue to receive this during the enforcement phase.
There is in principle no limit for these costs, with their level depending on the problems that can arise during enforcement.
The enforcement application requested by the party must comprise: the instrument on which enforcement is based, the enforcement sought, the assets of the debtor that can be seized, the localisation and research measures necessary to ascertain the debtor’s assets, the person or persons against whom the decision is to be enforced, identifying them and their circumstances and, in cases where the aim is to enforce a court judgment or decision, this must also be identified and enclosed, pursuant to Article 549 of the Code of Civil Procedure.
The documents listed in Article 550 of the Code of Civil Procedure must be attached to the enforcement application. If the enforcement application meets the requirements mentioned above and if the instrument presented is one of the instruments that permit enforcement, this will be granted by the judge to whom the application was made, who will determine the amount to be seized, the persons concerned and the enforcement measures.
All movable and immovable property as well as claims and real property rights. The following assets may not under any circumstances be subject to enforcement:
The following amounts may not be enforced either:
If the debtor receives more than one salary, all the salaries will be added together and the unattachable part deducted once. Moreover, the salaries, wages, pensions, remuneration and equivalent payments of the spouses will be added together unless their marriage settlement involves a separation of estates and income of all kinds, evidence of which must be provided to the court.
The court may apply a reduction of between 10% and 15% in the percentages laid down in sub-paragraphs 1, 2, 3 and 4 of paragraph 2 of this article to allow the debtor to meet family expenses.
Should the salaries, wages, pensions and remuneration be encumbered with permanent or transitional deductions of a public nature pursuant to tax or social security legislation, the net amount received by the debtor, once they have been deducted, will be the amount used as the base for determining the amount to be seized.
The above sub-paragraphs of this article also apply to revenue from self-employed professional and business activities.
In any event and without prejudice to the need to take account of the amounts that cannot be attached as mentioned above, the enforcement measures must be in proportion to the amount for which the enforcement was granted, so that if they are excessive a reduction may be necessary, and if they are insufficient, an increase may be needed.
Where the party initiating the enforcement does not know what assets are owned by the debtor, the court may be asked to make enquiries; these are carried out by consulting the data banks of the various official institutions, some of which are directly accessible from the court, with the usual safeguards.
To guarantee the effectiveness of enforcement, the law provides for certain measures depending on the type of asset.
In addition, with a view to guaranteeing enforcement, all persons and public and private entities are required to cooperate with enforcement procedures (on pain of incurring a fine or even of being charged with contempt of court if they fail to respect the requirement). This means that they must provide the information required of them, adopt the guarantee measures in question, handing over to the court any documents and data in their possession, without any limitations other than those arising from the observance of fundamental rights or limits which, in certain cases, are expressly laid down by law.
The duration of enforcement measures is not pre-determined. They remain in force until enforcement is complete.
Appeal is not possible against specific measures laid down in the decision granting enforcement, but the debtor may oppose the adoption of specific measures. In this case, the debtor may initiate appeal proceedings against the court’s dismissal within a period of five days. Initiation of appeal proceedings does not suspend enforcement of the measures granted.
In addition to the above, the debtor may oppose the enforcement that is going ahead against him either on the basis of procedural shortcomings or for reasons relating to the legal relationship in question.
Procedural reasons (applicable to all enforcement instruments) :
However, in addition to the above grounds, the debtor may invoke grounds of opposition to the enforcement arising from the underlying legal relationship (material grounds). Since, in the case of judgments, there has been a previous process during which there were extensive opportunities for debate, there are fewer possibilities of opposition if the enforcement instrument is a judgment.
Thus if the enforcement instrument is a court decision or judgment or an arbitration decision against the defendant, or if it approves a settlement or agreement reached during the process, the debtor may, within ten days following the notification of the act in which enforcement is granted, oppose this in writing on one of the following grounds:
In these cases, opposition does not suspend enforcement.
But when the enforcement instrument is different from those mentioned above, there are more grounds for opposition, including the following:
If opposition is formulated in these cases, enforcement is suspended.Top
Last update: 06-06-2006