Article 281 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta regulates the manner how executive acts may be impugned.
It provides that any person against whom an executive act has been issued including any interested party, has the right to request the court to revoke the executive act either totally or partially.
Nevertheless, article 281 further provides that a person can positively challenge an executive warrant only for ‘any reason valid at law’.
The question here is what the legislator meant with the phrase by ‘any reason valid at law’.
The answer is found through jurisprudence, whereby it has been established that an executive warrant can only be challenged on a ‘mistake or error’ in its form. This was reaffirmed in another judgement by the First Hall Civil Court on the 6th September 2022 in Dr Julian Farrugia noe v Vista Jet Limited.
In this case Visa Jet Limited appealed the executive warrant before the court and requested the cancellation and revocation of the execution of the executive warrant issued on the 27th July 2022. The executive warrant was issued at the request of the executor Michael Pammer in relation to credit due as established by the Declaration of Executability issued under article 18(1) of Regulation 1896/2006 (EC); and (2) the suspension of the execution of same warrant in line with article 44(1)(c) of Regulation 1215/2012 (EU).
Regulation 1896/2006 (EC) which is a legislation of the European Union and which is a binding legislative act, relates to the enforceability of the European Order for payment which was enacted to simply speed up and reduce the costs of litigation in cross-border cases concerning uncontested claims of a pecuniary nature by creating a European Order for payment procedure.
Article 16 of the latter regulation provides that the defendant can also within thirty days of service of the order, oppose the same order. Article 18 further dictates that if during the thirty days period, no opposition has been filed with the court of origin, the court shall then without undue delay, declare the European Order for payment as being enforceable.
Article 44(1)(c) of Regulation 1215/2012(EU) further provides that in the case of an application for refusal of enforcement of a judgement, the court in the Member State addressed may, on the application of the person against whom enforcement is sought, suspend either wholly or in part, the enforcement proceedings.
In his submissions Vita Jet Limited, raised three heads of grievances and argued that the executive warrant subject to the proceedings should be revoked by the court on the following grounds: (1) applicant alleged that he was not notified by the foreign court, in this case the Austrian court, with the request made by the executor Michael Pammer, thus in violation of article 45(1) and 46 of Regulation 1215/2021(EU); (2) he was not provided with a translation of the order in a language that he can understand as provided in article 21(2)(b) of Regulation 1896/2006(EC) and (3) the order was issued by a court without having jurisdiction to issue same.
The Executor, Michael Pammer, rebutted the submissions made by Vista Jet Limited by stating that for the revocation of the executive warrant subject to the proceedings, the application should not have been filed under article 281 of Chapter 12 of the Laws of Malta but under the provisions of article 825A et sequitur of Chapter 12 of the Laws of Malta, which latter articles regulate the applicability of European Union Regulation and the enforcement of judgements delivered by courts or tribunals outside Malta.
The court after having heard the submissions of the parties and after having analysed the main facts of the case, observed that the action filed by the applicant, was a procedure in terms of article 281 of Chapter 12 of the Laws of Malta. The applicant contested the executive act issued following a request made by the executor before a foreign court and enforceable under the European Order for payment.
The court observed that under article 281 of Chapter 12 of the Laws of Malta an executive act can only be challenged if it has been issued by the wrong Court or if there is a defect in its form.
It must be shown that there exists a reason considered to be serious and valid to bring about the full or partial revocation of the executive warrant. The court further remarked that any requests made under article 281 should be made explicitly, to request for the cancellation in whole or in part, of the executive act and is not intended to halt the execution of a warrant issued by a competent court.
The court in its judgement also commented on the fact that the executive warrant subject to the proceedings was issued following a European Order for payment issued by a competent court and which order was not overturned by a decision given by any other court.
Hence, it concluded that the warrant constituted an executive title. It also observed that the reasons brought by the applicant upon which he requested the revocation of the executive act, goes beyond what the court is expected to do in such proceedings instituted under article 281 of Chapter 12 of the Laws of Malta.
The court also agreed with the arguments made by the executor Michael Pammer and declared that Vista Jet Limited, to attack the warrant subject to the proceedings, should have instituted proceedings envisaged under article 825A et sequitur of Chapter 12 of the Laws of Malta and not under the provision specified under article 281 of Chapter 12 of the Laws of Malta.
Finally, the court rejected the request filed by Vista Jet Limited for the revocation of the executive warrant issued following a European Order for payment, with costs to be borne by the applicant.
Dr Frank A. Tabone is an Associate at Azzopardi, Borg and Associates Advocates.