Skuldsaneringslagens hemvistkrav - en analys av kravets nuvarande och framtida tillämpning ur ett EU-perspektiv

Sammanfattning: In Sweden a person who has become so ensnared in debt that he cannot reasonably be presumed to be able to extricate himself from the debts within a foreseeable future, can turn to the public enforcement authority Kronofogdemyndigheten (KFM) and apply for debt relief. If debt relief is granted, the debtor will be entirely or partly released from his obligation to pay the debts. In order to be eligible for Swedish debt relief the debtor must however reside in Sweden. The general aim of this thesis has been to investigate the need for a residence requirement in relation to debt relief and analyze if the Swedish requirement is compatible with EU law. In my view, there is a great need for a residence requirement in relation to debt relief proceedings, this in order to ensure an effective application of the law. Since a Swedish debt relief decision probably won’t be recognized abroad, the decision cannot be used to prevent the enforcement of a claim brought before a competent court in another Member State. A debtor who is not domiciled in Sweden can therefore be subjected to different enforcement actions that may affect the debtors ability to pay the debts included in the Swedish debt relief proceeding. The residence requirement is also needed in order to obtain complete and correct information about the debtor’s personal and financial position. Regarding the question if the Swedish residence requirement is compatible with EU law, the Court of Justice of the European Union (CJEU) recently held that the requirement is liable to restrict the freedom of movement of workers and therefore in principle prohibited. The fact that a debtor resides abroad can for that reason no longer be used as a direct ground for refusal of a trial of the debt relief application. Instead, KFM will have to make an overall assessment of different factors regarding the debtor’s ties to Sweden and his personal and financial position in order to determine whether it could be considered reasonable that the debtor is granted debt relief. Considering the current discussions about changes in the EU Insolvency Regulation, the Swedish debt relief proceedings will probably soon be subjected to the Regulations provisions. The Regulation provides that only the courts in the country where the debtor’s main interests are located should be authorized to initiate an insolvency proceeding. For individuals the place of the main interests should be considered to be located in the country in which the debtor resides. The Regulation also includes rules of recognition and if the proposed changes are implemented a Swedish decision on debt relief will be recognized by the courts of other Member States. The proposed changes could therefore lead to a solution of a number of problems that may arise in respect to the current application on the law on debt relief. The changes are, in my opinion, also necessary in order to ensure an effective debt relief procedure.