INTRODUCTION

This report is based on a quantitative and qualitative analysis. The quantitative analysis rests on German cases uploaded to the IC²BE database. The database includes 51 cases on the European Enforcement Order (EEO) Regulation, 15 cases on the European Order for Payment (EOP) Regulation, seven cases on the European Small Claims Procedure (ESCP) Regulation, and seven cases on the European Account Preservation Order (EAPO) Regulation. The qualitative analysis is based on 21 interviews conducted with judges, lawyers, businesses and consumer organisations in different states of Germany. The interviews involved 24 participants.

PERVASIVE PROBLEMS

AWARENESS OF REGULATIONS

Awareness in General

Whereas domestic provisions dealing with the implementation of conventions (e.g. the Lugano Convention) and EU Regulations that require an exequatur, such as the Brussels I Regulation, are traditionally found in the Act on Implementing Recognition and Enforcement, the German legislature has enhanced the visibility of more recent EU Regulations – Brussels Ibis, the EEO, EOP and ESCP Regulations – by compiling the related rules in Book 11 of the Code of Civil Procedure (ZPO). This approach ensures that practitioners are alerted to the applicability of EU Regulations. Moreover, standard commentaries on the ZPO include explanations of those rules and the Regulations as well, thus making it frequently superfluous to consult more specialised treatises. Nevertheless, the awareness that the second-generation Regulations exist still leaves room for improvement. Therefore, there are widespread calls to make the Regulations more widely known and to improve the training of legal professionals.

However, practitioners who are aware of the Regulations deploy them selectively and make use of their respective advantages. In particular, the interviewees prefer applying for an EOP to enforcing a domestic order for payment under Brussels Ibis because the centralised jurisdiction at the Amtsgericht Wedding (see below section 2.2.2.2) allows for accelerated proceedings and greater predictability. Furthermore, the EOP Regulation is easier to handle than foreign order for payment procedures. Sometimes, domestic order for payment proceedings may be advantageous because of the wider scope of Brussels Ibis and its less consumer-friendly rules.

Apart from that, participants find the ESCP procedure more convenient than initiating domestic small claim procedures in conjunction with a subsequent enforcement under Brussels Ibis, particularly if the small claims procedure is sued in another Member State under a foreign procedural law.