Η αναγκαστική ικανοποίηση αστικών και εμπορικών απαιτήσεων κατά το ενωσιακό δίκαιο : μέσα άμυνας του οφειλέτη

Abstract

The present study analyzes and compares the rights of defense recognizedand provided by the contemporary European Civil Procedural Law to the debtoragainst a transnational enforcement carried out at the expense of his property. Theprocedural treatment of the debtor and the fluctuations thereof are examined from themoment the enforceable title is published in a member-state to the last stage of theenforcement which takes place in the State of execution.The cornerstone of this research is the basic distinction of civil andcommercial claims between contested and uncontested ones. What is attempted is acomparative overview of the opportunities provided by relevant EuropeanRegulations (Reg. No 44/2001, 805/2004, 1896/2006 and 861/2007) by which eachdebtor of a civil or commercial claim can react to the initiative of the creditor toimplement an international executive process so as his disputed claim to be satisfied.Specifically, this paper deals with the evaluation of instruments at the disposalof the debtor in order a) to prevent the declaration of enforceability of a foreign title inthe member-state of execution, b) to cancel or at least to intervene in the creation ofan instrument within European range in the state of origin, d) to ensure his right to ahearing using the estimates of the law of the service in the member states of judicialand extrajudicial documents (Reg. No 1393/2007) and e) to appeal against eachindividual procedural executive act performed in the member State of execution.The main objective is to demonstrate that the effectiveness of mutualrecognition and enforcement of judgments and the confidence in the internal marketcan by no means be pursued at the sacrifice of the fundamental rights of thedefendant. Under this significant principle, that has been repeatedly confirmed by theECJ, a critical review of recent developments in European law is made, withparticular emphasis on the decision of the European legislative bodies to abolish the“exequatur” and the provision of public policy in cross-border enforcement.