Civil Enforcement in Comparative Perspective: A Public Management Challenge (Intersentia 2021), by Dr Wendy Kennett


This book has had a long gestation period. My interest in civil enforcement originated in the late 1990s. I was teaching an LLM module on International Litigation and conducting research on the international aspects of the various phases of the litigation process. When it was time to turn to the enforcement of judgments, I was requested to write a comparative Chronique on the topic for the European Review of Private Law, using questionnaire responses from country reporters as a source of information. The responses surprised me: they revealed that enforcement agents in several jurisdictions had extensive powers to obtain information about debtors’ assets and to make decisions about the most appropriate method of enforcement. This was in sharp contrast to the position in England and Wales and it piqued my curiosity. I began to investigate the institutions responsible for enforcement in different jurisdictions and discovered a great diversity of different approaches. Thus began a long-term research interest in the personnel of enforcement.

Civil enforcement institutions may be courts, but they may also be administrative agencies or independent professionals (Judicial Officers). These are the three principal models used for the enforcement of judgments and other enforcement titles, but hybrid arrangements exist. For example, enforcement tasks may be shared between courts and enforcement agents external to the court system. Enforcement institutions may also perform a range of different tasks: some have a narrow focus on of enforcement or even specific methods of enforcement; some court officers have a variety of functions within the court system; some independent legal professionals operate businesses that engage in commercially orientated operations such as debt recovery or property management.  More fundamentally, there may be a single institution responsible for the forced recovery of public and private law debts, or these tasks may be distributed among several different institutions. The significance of this latter choice lies in the fact that the recovery of public law debts involves mass, low-cost processing – leading to what may be regarded as the industrialisation of enforcement.


Although civil enforcement is represented in research and teaching at many universities across Europe, the focus is typically on the procedures set out in Codes of Civil Procedure or Enforcement Codes. Publications concerning the institutions responsible for enforcement are rare. Twenty-five years ago such publications were also much less accessible than they are today.  My initial research thus had a large empirical element. This was greatly aided by the response to my Chronique. I was able to form contacts with several academics working in the field of enforcement law and with the Union Internationale des Huissiers de Justice (UIHJ). Visits to enforcement agents – at first in France and Germany, then Spain and Sweden – were facilitated by the UIHJ. The relevant legislation and texts available were illuminated through observation and discussionComparison between systems was a natural part of this ‘conversation’.  Each new discovery about one system of enforcement prompted questions about how similar issues were addressed elsewhere. This is a process that is described in detail by Catherine Valcke in Comparing Law: Comparative Law as Reconstruction of Collective Commitments (CUP 2018) (at 120 ff).  It involves a ‘shuttlecock movement’ back and forth between legal systems, gradually clarifying the contours of each of them.  Valcke observes that the comparatist, ‘seeing both [legal systems] at once … can identify their respective outlines and distinguish them as against one another, thereby recognizing their relative, contingent nature. From this she gains a sharpened understanding of each element on its own’.

Rather than a shuttlecock back and forth movement, my research on enforcement institutions has involved a multidirectional movement between more than a dozen different legal systems as I have tried to obtain a better appreciation of the organisational variety that has evolved. Naturally this approach does not permit the depth and cultural insights that can be gleaned from a comparison of a small number of legal systems. But it provides valuable perspectives and an ability to appreciate the constraints under which policies with respect to cross-border enforcement of judgments can develop and the controversies with respect to the interpretation of European instruments of civil procedure that may arise.  

As my research progressed, the conversation between systems gradually expanded its range and a wider range of political, social, economic and legal cultural factors emerged as relevant to the structure and concerns of enforcement institutions. I concluded that a useful way of focusing my comparison of systems would be to view them through the lens of another discipline. In 2001 I started investigating civil enforcement from the perspective of professionalisation. But on returning to this research area after a long career break and after the accession of many CEE countries to the EU, the widespread adoption of a Judicial Officer model in CEE countries raised obvious questions about the reasons for and degree of success of this ‘transplant’ from the countries of origin of this model: France, Belgium and the Netherlands. This prompted me to explore the influence of public management consultants and public management trends on the policy transfer process – and in particular the ‘fit’ between this enforcement model and the New Public Management (NPM) toolkit – and this line of enquiry eventually provided the framework for the book.

The book is based on documentary sources. This has provided a wealth of information, but alternative research methods could certainly be expected to provide important further insights into the issues discussed. It has not been possible to obtain the views of public managers or other stakeholders in relation to many of the regulatory choices made, nor has it been possible in most jurisdictions to obtain reliable quantitative data on the efficiency and effectiveness of civil enforcement. Indeed, the level of transparency on these issues varies considerably from one country to another. Publications by enforcement professionals have been a significant source of information, but one which inescapably contains an element of bias.  A range of other sources – such as academic publications and government reports – have nevertheless provided alternative perspectives.

Summary of contents

Civil Enforcement in a Comparative Perspective: A Public Management Challenge explores the civil enforcement institutions in thirteen jurisdictions: Sweden, Belgium, France, the Netherlands, the Czech Republic, Poland, Hungary, Romania, Estonia, Spain, Austria, Slovenia and Germany. The European focus reflects the fact that the book builds on my previous research.  

An introductory chapter provides context, an explanation of key terms and an account of methods and sources. It notes that debt and over-indebtedness are significant problems in Europe – further impacted in ways yet to be determined by the coronavirus pandemic – and that government policies encourage the acquisition of private law debt as a way of smoothing out fluctuating economic circumstances (‘privatised Keynesianism’). Against this background, public managers have a particular obligation to ensure that the mechanisms for debt recovery are fair and in alignment with public values. Chapter 1 also questions the utility of the research conducted by international organisations in relation to civil enforcement in the absence of a solid comparative law foundation for the data collected.

A functional approach to comparison is adopted, using the institution responsible for the seizure of tangible movables as the tertium comparationis. Seizure of tangible movables was historically the most important method of enforcement. Focusing on the institution responsible for this makes it possible to see how far they have adapted to modern methods of asset holding and how far alternative enforcement mechanisms have proved necessary. Chapter 2 surveys the tasks involved in the enforcement process to ensure that the reader has a clear picture of the potential range of activities undertaken by enforcement institutions – and can also appreciate the possible role of other actors such as notaries and the parties’ lawyers. The chapter goes on to provide a survey of the historical roots of the main institutions investigated. Later chapters, each focusing on an individual country, examine the more recent history of these institutions.

Chapter 3 provides an explanation of the preoccupations of comparative public management theory: state structure, democratic style and administrative traditions. It surveys some of the main public management paradigms that have been used in scholarship in this field in recent decades and then explores some recent cross-cutting trends in public management theory that have potential relevance for civil enforcement, including management that reflects public values, the implications of a service-dominant logic in the public sector, the importance of creating public value and the opportunities offered by digitalisation. This sets the scene for Chapter 4, which focuses more particularly on the implications of viewing civil enforcement as a public task requiring appropriate public management.

Most of the remaining chapters seek to explain the civil enforcement systems of the selected countries. Using Valcke’s explanation of the process of comparison again, these country accounts have been placed together in such a way that they can be intelligibly related one to another, like fitting together the pieces of a jigsaw puzzle,[1] rather than trying to identify some higher rule or better law against which to judge the various national enforcement systems. The approach adopted in each chapter is to provide a brief exploration of the public management context in so far as that information is relevant to the regulation of civil enforcement. The chapters then take up the story of the historical development of the main civil enforcement institution or institutions at a point where there is a meaningful trajectory towards the modern-day institution. They reveal the path-dependence of reforms to civil enforcement institutions. State structure, democratic style and administrative tradition as well as modern public management trends have helped to shape the form of organisation, functional and territorial competences, access to information, level of discretion, arrangements for supervision and discipline, and funding of the institutions studied.

Public management theories and trends can easily be identified in the evolution of the Swedish Enforcement Authority, an administrative body. Its structure and functions have been the subject of regular government reviews. The impact of NPM is evident, as well as more recent conceptions of public service, public values and digital government. By contrast public management of independent Judicial Officers has been less transparent. The model has its roots in the ‘outsourcing’ of enforcement by the French state during the ancien regime, but it has evolved in distinctive ways in France, the Netherlands and Belgium.  Chapter 6 provides an overview of the public management contexts within which the model has developed, including the particular status of Judicial Officers as officiers ministériels,the influence of corporatist policies in the mid-20th century, the rise of the regulatory state and the distinctive state structures, democratic styles and public administration traditions of the three countries concerned. In contrast to civil enforcement institutions adopting an administrative or judicial model, Judicial Officers compete with one another for business. The trend towards the deregulation of the legal professions in the last thirty years has heightened this competition, and Chapter 7 explores the reasons for promoting competition and the particular features of civil enforcement that suggest that competition – while it has greatly improved efficiency – should nevertheless be regulated carefully. 

In the interests of providing a helpful number of ‘jigsaw’ pieces in this comparative account, each country chapter contains sections on two further topics. The recovery of public law debts is discussed briefly to highlight the extent to which the same machinery of enforcement may be employed in both the public and private spheres. There is also a short section on debt advice and assistance and personal insolvency, reflecting the fact that some civil enforcement institutions have a role to play in the provision of debt assistance and restructuring. 


Using concepts and theories from comparative public management to illuminate a comparative exploration of legal institutions unsurprisingly proved to be a challenging project. I had many precipitous moments as I ventured into new territory and surveyed the legal, theoretical and institutional terrain that lay before me.  Nevertheless, I have personally found that the approach adopted has considerable explanatory power and highlights the need for civil enforcement to be taken more seriously as a public management responsibility. It is for the reader to judge how successfully I have managed to communicate my findings.

Inevitably, the issues considered in the book are only a small portion of the spectrum of issues relevant to civil enforcement. The focus is on one, important, part of the enforcement machinery. Individual methods of enforcement are only mentioned in passing. Judicial control of enforcement, which looms large in civil enforcement textbooks, is also given strictly limited treatment. In keeping with its public management perspective, the book is particularly concerned with issues that affect consumer-citizens, rather than commercial and cross-border cases.  Nevertheless, the same machinery is relevant to commercial and consumer cases, and it is hoped that the data provided may assist in designing future research projects, understanding problems of communication between legal systems and constructing European rules to facilitate cross-border enforcement. 

Posted by Dr Wendy Kennett, Cardiff School of Law and Politics

[1]         Valcke (p.125) citing Gerald Postema, ‘A similibus ad similia: Analogical thinking in law’ in Douglas E. Edlin (ed), Common Law Theory (Cambridge University Press 2007).