Flat fees of the bailiff when stopping an old enforcement proceeding

On January 1, 2020, Act No. 233/2019 Coll. on the Termination of Certain Execution Proceedings and on amendments and supplements to certain acts (hereinafter “the Act”) entered into force.

Section 2 of this Act establishes that certain old executions are stayed, i.e., executions commenced before April 1, 2017, and conducted according to regulations effective until March 31, 2017, if:

• the decisive period of 5 years running from the date of delivery of the initial authorization to perform the execution to the court executor has expired, and at the same time, it is not an old execution according to Section 2, Paragraph 2 (for example, a maintenance claim or an old execution in which, in the last 18 months before the day the old execution is to be stayed, a total yield of at least 15 euros was achieved; furthermore, for example, a claim for non-monetary performance, including the satisfaction of a right to monetary performance if they are enforced in the same execution proceeding; a claim arising during the implementation of joint programs of the Slovak Republic and the European Union financed from European Union funds; performance granted by a decision of an institution, body, office, or agency of the European Union; performance granted by a decision of an administrative body in a matter of violation of competition rules)

• the entitled person or the obligor ceased to exist without a legal successor, or inheritance proceedings after the entitled person or the obligor were stayed because they left no property or left only property of negligible value,

• the termination of the old execution was proposed by the entitled person, or

• the reason for staying the old execution results from a special regulation governing bankruptcy proceedings; for this purpose, it holds that the old execution was stayed upon the occurrence of the reason for its staying.

According to Section 6 of the Act, governing the costs of the old execution and the request for reimbursement of the costs of the old execution: “(1) The executor’s costs of the old execution consist of the executor’s costs which they legally retained from the received or enforced performance before the staying of the old execution, and flat-rate costs in the amount of 35 euros; if the executor is a value-added tax payer, the amount of the flat-rate costs is increased by the value-added tax that the executor is obliged to pay according to a special regulation. The executor is not entitled to reimbursement of costs of the old execution other than the costs mentioned in the first sentence. (2) The flat-rate costs are borne by the entitled person. The executor shall invite the entitled person to pay the flat-rate costs in the notification of the termination of the old execution, if the executor claims the flat-rate costs. (3) The notification of the termination of the old execution with a request for payment of flat-rate costs, on the basis of which the flat-rate costs were not paid within 60 days from the end of the execution proceeding, is an execution title. A certificate of enforceability is not required. (4) The executor is not entitled to reimbursement of flat-rate costs if:

• they sent the notification of the termination of the execution to the entitled person after the expiration of the period according to Section 5, Paragraph 3, or

• it concerns an old execution that was not entered in the central register of executions.”

According to the Act, the executor is entitled to reimbursement of flat-rate costs according to Section 6, Paragraph 4, Letter a) of the Act in the event of compliance with the deadline for sending the notification of the termination of the execution. According to Section 5, Paragraph 3 of the Act: “The executor shall send the notification of the termination of the old execution to the entitled person no later than 120 days from the staying of the old execution according to this Act. If it concerns an old execution that is stayed as of the date of the effectiveness of this Act (as of Jan 1, 2020), the executor shall send the notification of the termination of the old execution to the entitled person within 180 days from the entry into force of this Act.”

In the sense of the explanatory memorandum to this Act: “Paragraph 3 regulates the deadlines within which the executor, after staying the old execution, sends the notification of the termination of the old execution to the entitled person, while the draft act distinguishes two deadlines depending on whether the reason for staying the old execution arose as of the date of entry into force of the draft act (180 days) or this reason arose during the effectiveness of the draft act (120 days).”

According to the explanatory memorandum: “The total costs of the old execution of the executor consist of the sum of the amount that the executor has already legally retained for the costs of the old execution in accordance with the rules for partial enforcement of the claim and the flat-rate costs of the old execution of the executor arising in connection with the staying of the old execution (hereinafter ‘flat-rate costs’), which are in the amount of 35 euros without value-added tax, i.e., if the lawyer is a value-added tax payer, the amount of these flat-rate costs is increased by value-added tax. The executor is not entitled to reimbursement of costs of the old execution other than the costs mentioned in the first sentence. The flat-rate costs are borne by the entitled person, and even if in this case the flat-rate costs are paid by the entitled person, from the point of view of ‘substantive law’ they become an accessory to the claim (as costs associated with the assertion of the claim). The above means that in the case of filing a repeated motion for execution, the entitled person may demand their reimbursement as reimbursement of costs associated with the assertion of the claim. The draft act creates a specific execution title for the enforcement of flat-rate costs that were not paid within the established deadline, which is the notification of the termination of the old execution with a request for payment of flat-rate costs. For the filing of a motion for execution based on such an execution title, a certificate of enforceability will not be required; however, the notification of the termination of the old execution with a request for payment of flat-rate costs must contain all mandatory requirements and the condition of sending in the sense of Section 5, Paragraph 3 of the draft act must be met. In the event if the court executor does not issue and send the notification of the termination of the old execution with a request for payment of flat-rate costs in accordance with Section 5 of the draft act, failure to fulfill these legal obligations results in the loss of the executor’s claim to flat-rate costs. The loss of the executor’s claim to flat-rate costs is also a consequence of not entering the old execution into the central register of executions according to the provisions of the Execution Order effective until March 31, 2017.”

According to Section 7 of the Act: “Against a notification of the termination of an old execution that was issued in violation of this Act, the entitled person may file objections with the executor within 30 days of its delivery. Objections against flat-rate costs are not admissible.”

The entitled person may, after the staying of the old execution, file a repeated motion for execution. “If the entitled person, after the staying of the old execution according to this Act, repeatedly files a motion for execution, they must attach the execution title, the notification of the termination of the old execution, or the court’s resolution by which it determined that the staying of the old execution occurred according to Section 8, Paragraph 2, or by which the court dismissed the objections or by which the objections were rejected to the motion for execution. The claim enforced in the old execution shall not be barred by the statute of limitations after the end of the execution proceeding according to this Act earlier than one year passes; this applies equally if a special regulation allows for the ordering of the enforcement of a decision within a certain period. Apart from the reimbursement of the court fee for the motion according to paragraph 1, the entitled person is not entitled to reimbursement of costs associated with its filing.”