INTRODUCTION

The cross-border enforcement of judicial decisions can be seen as a context where different procedural systems interact, which must be coordinated with each other. However, it is also a context of dialectic between opposing parties, typical of any judicial process. Its regulation, therefore, must be carried out and analysed taking into account the rights and powers attributed to the creditor and the debtor, so that the promotion of efficiency – favourable to the creditor – is not detrimental to the debtor's right of defence. In the following pages, the author intends to assess the extent to which the civil procedural law of the European Union adequately protects the legal position of the debtor in cross-border enforcement and, where appropriate, what could be the most reasonable measures to improve that position without unduly harming the right of the creditor to the prompt satisfaction of his right.

THE DIFFICULTY OF BEING THE DEBTOR IN CROSS-BORDER ENFORCEMENT

The debtor in cross-border enforcement finds himself in a difficult situation for two main sets of reasons: because he is a debtor and because he finds himself in a cross-border setting. This does not mean, of course, that we should pity him or offer him advantages that he does not deserve: after all, it has been the lack of fulfilment of some obligation on his part that has triggered enforcement; rather on the contrary, we should pity the creditor, whose right to enforcement proceedings is to be considered part of the fundamental right of access to justice, which would be delusory if litigants were to be entitled only to receive a judgment on the merits.

However, as noted above, a basic notion of proportionality obliges us to be clear about the circumstances of the debtor in order to properly assess the terms in which the current rules and legal provisions are operating.

BEING A DEBTOR IN ENFORCEMENT PROCEEDINGS

On the one hand, the debtor's position is weak for the obvious reason that he is the debtor.