It cannot be said that the attachments, sales, service of process and similar acts carried out by enforcement offices are always performed in conformity with the law. The principal avenue of recourse afforded against enforcement acts that run contrary to the law, exceed the limits of the office’s powers or impair the rights of the persons concerned is the institution of complaint.
A complaint may be submitted, in writing or orally, to the Enforcement Court to which the enforcement office that performed the act is attached. Following its examination, the court may order the annulment or the correction of the act, and it may equally order the performance of an act that the enforcement officer has refrained from carrying out or has delayed.
In this briefing note we examine the scope of the complaint procedure, which acts may be reviewed by this route, the time limits for lodging an application, who the parties are, and the types of decision the court may give, within the framework of the legislation and of practice.
The Legal Nature of the Complaint
The complaint is an institution which allows acts performed by enforcement and bankruptcy offices, by the enforcement director and by the enforcement officer that infringe the rights of the persons concerned to be submitted to the review of the Enforcement Court, so that their adverse effects may be remedied. It is positioned as a review mechanism peculiar to enforcement and bankruptcy law, with a character of its own.
In technical terms the complaint is neither an action nor an appellate remedy. In terms of its practical effect, however, it is in no way inferior to those institutions. The examination conducted by the Enforcement Court nonetheless does not acquire the character of an action; the complaint continues to exist as an independent avenue producing effects within the field of enforcement.
What Are the Grounds for Complaint?
The Enforcement and Bankruptcy Act No. 2004, Art. 16, allows the acts of enforcement and bankruptcy offices and of enforcement directors and officers to be reviewed on specified grounds. Those grounds are as follows:
- Failure to give effect to a right
- The act being contrary to law
- A right being left in abeyance without cause
- The act being unsuited to the circumstances
- The act being contrary to public order
Where any one of the situations listed is present, the act of the enforcement office may be made the subject of a complaint so as to be submitted to the examination of the Enforcement Court.
The Act Being Contrary to Law
What is to be understood by contrariety to law here is the incorrect application by the enforcement officer of a statutory provision to the concrete case. The Enforcement and Bankruptcy Act No. 2004 above all, but also other statutes, regulations and by-laws, fall within this scope. By contrast, a breach of the contracts the parties have concluded between themselves cannot be assessed within the category of contrariety to law; it therefore does not, on its own, constitute a ground for complaint.
The Act Being Unsuited to the Circumstances
In certain situations the legislature has conferred a discretionary power on the enforcement officer or director performing the act. Where that power is not exercised in a manner suited to the requirements of the concrete case, the result is that the act is unsuited to the circumstances.
Article 83 of the Enforcement and Bankruptcy Act No. 2004 may be considered by way of example. The provision stipulates that at least one quarter of the debtor’s salary is to be attached. Within that framework the enforcement officer determines for himself, according to the circumstances of the case, the proportion of the salary that is to be attached. Attaching only one quarter of the salary of a debtor whose income is considerably high may not be suited to the concrete case, and in that respect may be made the subject of a complaint. Applying a proportion below one quarter, on the other hand, constitutes a direct contrariety to law, since that proportion is expressly laid down in the statute as a lower limit.
The details of the matter are examined separately under the heading Attachment of Salary and the Employer’s Liability for Attachment of Salary.
Failure to Give Effect to a Right
Where the enforcement officer fails to perform a task falling within the scope of his duties, the result is a failure to give effect to a right. The officer may expressly refuse to perform the act expected of him, or he may equally choose to remain silent without giving any explanation. In either case the outcome is the same; there is a right to which effect has not been given.
A Right Being Left in Abeyance Without Cause
Where the enforcement officer fails, without justified reason, to perform a task falling within his duties within the period laid down in the statute or within a period that may be regarded as reasonable, one speaks of a right being left in abeyance. This ground and the failure to give effect to a right are very close in nature to one another; the only way of distinguishing the two is for the officer’s intention to be clearly discernible.
Contrariety to Public Order
There is no special provision in the statute concerning acts performed by enforcement offices that are contrary to public order. Nevertheless, in accordance with the decisions of the Court of Cassation and settled understanding, recourse to the complaint procedure is available at any time against acts of this nature. Since the concept of public order has no statutory definition, the assessment must be made separately in respect of each concrete case. If a general description is to be attempted, public order may be expressed as the order secured by giving priority to social and general interests.
As a rule, the examination of a complaint by the Enforcement Court depends upon there being an application before it. However, if the court identifies an act contrary to public order in a file that comes before it for another reason, it may take that into account of its own motion and annul it.
The Time Limit for Lodging a Complaint
As a rule, the period for lodging a complaint is seven days running from the date on which the act complained of came to be known. If the act was served, that period begins to run from the date of service; if no service was effected, the starting point is the date of knowledge. If the opposing party proves that the complainant became aware of the act at an earlier date, that date is taken as the starting point of the period.
The seven-day period is preclusive in nature. For that reason the Enforcement Court considers of its own motion whether the complaint was lodged within time. Since the complaint is to be directed to the enforcement court of the place where the enforcement office that performed the act is situated, an application made to the enforcement office does not preserve the period. Accordingly, a complaint transmitted in time to the enforcement office cannot be taken into account by the court unless it is submitted afresh to the Enforcement Court within the period.
By contrast, where a right has not been given effect or has been left in abeyance without cause, the complaint is subject to no time limit. This is because the enforcement office’s failure to perform the act, that is to say its inaction, sets a fresh period running at every moment; inaction is a continuing state of affairs.
A similar result applies in respect of acts contrary to public order. Although there is no express provision to that effect in the statute, case law and settled practice accept that recourse to the complaint procedure is available at any time against acts of this kind. Although as a rule the court can conduct an examination only upon application, an act contrary to public order in a file that comes before it for another reason may be taken into account of its own motion and annulled.
The Parties to a Complaint
Since the complaint is an avenue peculiar to enforcement law and does not have the character of an action or of an appellate remedy, when this route is taken there is no question of a claimant and a respondent. The parties to the application are designated as the complainant and the party complained of.
Recourse to this avenue is open not only to the parties to the enforcement act but to all persons concerned who are affected by it. The party complained of is the enforcement and bankruptcy office that performed the act. Since the application does not have the character of an action, the failure to name an opposing party does not constitute any defect. In practice, however, the opposing party in the enforcement file is named as respondent.
Decisions the Enforcement Court May Give
The decision given by the Enforcement Court at the conclusion of its examination of a complaint does not constitute res judicata in the substantive sense; it has the character of res judicata in the formal sense. The court cannot place itself in the position of the enforcement office that performed the act complained of and perform a new act. Within that framework, the options before the court are to allow or to dismiss the complaint.
Where the complaint is dismissed, the act continues to exist. Where a decision allowing the complaint is given, the court may order the annulment or the correction of the act, or the performance of an act which the enforcement officer has failed to perform or has delayed without justified reason. Accordingly, the decisions that may be given upon a complaint fall under the following three headings:
- Annulment of the act complained of
- Correction of the act complained of
- An order that acts which the enforcement officer has failed to perform or has delayed without cause be performed
Annulment of the Act
An act performed by the enforcement office which is contrary to the law or to the circumstances of the case is annulled by the Enforcement Court. Since the court has no power to place itself in the position of the enforcement office and establish a new act, the new act is, following the decision of annulment, once again performed by the enforcement office. Those new acts may likewise be made the subject of a complaint before the Enforcement Court.
Correction of the Act
A decision of the enforcement office may contain certain material errors; errors of calculation are the typical example. Material errors of this nature may be corrected by the Enforcement Court. However, in order for a decision of correction to be given, the correction must be of a nature that can be made on the basis of the file.
An Order That the Act Be Performed
Pursuant to Article 17 of the Enforcement and Bankruptcy Act No. 2004, the Enforcement Court orders the enforcement officer to perform the acts he has failed to perform or has delayed. The court’s power is confined to ordering that the act be performed; it cannot place itself in the position of the enforcement office and carry out the act itself. The enforcement office, for its part, cannot resist the court’s decision and is obliged to give effect to it.
Independent Legal’s Assessment
The complaint is a review instrument that directly affects the pace of enforcement proceedings. The loss most frequently encountered in practice arises not from the merits of the right but from time; missing the seven-day preclusive period leads to an objection that is in substance well founded never being examined at all. For that reason, documenting the moment at which the act became known is as important as the application itself.
The second critical point is that the application be directed to the correct authority. Since a petition submitted to the enforcement office does not preserve the period, the complaint must be submitted directly to the enforcement court with jurisdiction. That acts contrary to public order and cases of failure to give effect to a right are exempt from the time limit is, for its part, an opportunity that should be assessed in respect of irregularities noticed late.
In a concrete file, the following headings should be considered first:
- Establishing whether the act was served or came to be known in fact, and, accordingly, the starting point of the period
- Directing the complaint to the enforcement court of the place where the enforcement office that performed the act is situated
- Setting out clearly whether the ground relied upon is contrariety to law or unsuitedness to the circumstances
- Assessing, according to the nature of the act, whether the possibility of a complaint subject to no time limit is available
- Framing the application correctly, bearing in mind that the court cannot place itself in the position of the enforcement office
Independent Legal provides advisory services and conducts litigation in relation to the review of the acts of enforcement offices and the pursuit of complaint applications at every stage of enforcement proceedings.