ECC-Net Italy carried out in 2009 a survey at national level on the functioning of the European Small Claims Procedure at national level. In 2010 and 2011 the survey was extended at the EU level, throught the cooperation of all the ECC Network. Hereby the Executive summary of the survey:
For cross border disputes of less than 2000 EUR, the EU Small Claims Procedure is a valid alternative to the already existing legal proceedings within the Member States. It is intended to be relatively fast, cheap and to remove all the intermediate measures aimed at recognizing and enforcing national judgments abroad.
Regulation (EC) No 861/2007 took effect on 1 January 2009 across the European Union. At that time, Member States were asked to identify the courts with jurisdiction, organize the related legal activity, make the forms available and provide consumers with proper assistance in submitting their applications and carrying out the procedures.
In 2009, a few months after the enforcement date in which the procedure should have been accessible for citizens, ECC-Net started to check its concrete functioning in some countries (e.g. in Italy). The following year, in 2010, the survey was extended at the EU level.
A working group, composed by ECC Italy, Lithuania, Estonia and Poland, led a Joint Project on the European Small Claims Procedure, proposing to all ECCs two main tasks:
- an on-site visit or phone call to the European courts. ECCs contacted numerous national courts, in most cases introducing themselves as consumers with a cross-border issue, asking for the concrete possibility to commence the procedure, the availability of the forms and of the assistance in filling them in.
- a meeting with the competent judges at national level, to check their awareness on the Regulation and if necessary to solicit their interest in the procedure.
Following this activity ECCs were asked to complete a detailed questionnaire, drafted by the working group and validated by DG SANCO and DG JUSTICE.
As an alternative to meeting with judges at national level, or in addition to this, ECCs could also discuss the matter with the national points of contact in the European Judicial Network in civil and commercial matters.
Main findings and recommendations:
a) Lack of awareness among the judges and lack of information or assistance for consumers
· The main problem seems to be an overall lack of awareness among judges and also consumers.
Unfortunately there are still courts in some Member States who have never even heard about the European Small Claims Procedure.
· As a consequence, consumers are rarely able to obtain necessary and accurate information on the Procedure and to get practical assistance in initiating it. Furthermore, many of the courts and tribunals still do not provide consumers with specific forms, neither on their premises, nor on their websites, as they should, according to the Article 4 § 5 of the mentioned Regulation.
Before widely promoting the European Small Claims Procedure, it should be ensured that the procedure works smoothly from beginning to end. It is of a certain importance that the awareness of the Procedure among the judges in the Member States is increased.
One possible option to implement the European Small Claims Procedure more effectively would be to amend the current rules on jurisdiction in Regulation (EC) No 44/2001 as regards the small claims and establish one or several Court Authorities in each Member State which would be responsible only for European Small Claims Procedures.
As for lack of information and assistance to consumers, the ideal solution seems to be the introduction of a system of assistance, widely spread throughout the territory and assigned to consumer protection organisations, able to provide claimants with forms, support to fill them in, explanations and suggestions on the procedural steps - even for all cross-border judicial procedures and not only for the ones introduced by Regulation (EC) No 861/2007.
b) Language issues increase the costs of the procedure
· Although the European Small Claims Procedure is meant to be a relatively inexpensive way for people to use their constitutional right to initiate the court proceeding, it often may not be so. One issue which could lead to extraordinary expenditure is that of translation costs. According to civil proceeding legislations in force in some Member States all the documents supporting the claim must be officially translated. Even if this is not the case in all Member States, the consumer most probably has to bear the translation costs as not all Member States accept the claim and its documents in one common language.
As the European Small Claims Procedure is established for cross border litigation, it should also be facilitated in terms of language, for example establishing that one common language is accepted in all the European courts.
c) Procedure for the service of judgments is unclear
· Practical problems have been identified as regards the service of judgments: after receiving a judgment in their favour consumers need to notify it to the counterpart, but they have no information on how to carry out this operation; some of them sent the document by fax or registered mail, but as it is normally issued in their own language, it happened that the defendant didn’t understand it and it wasn’t properly considered.
On some occasions it happened that the consumers turned to the ECC asking for assistance in the service of the judgment: the problem in this case is that the defendant itself may require assistance about the matter and could decide to communicate with the ECC; but being involved in judicial proceedings is definitely outside the ECCs scope.
Better coordination among procedural officers such as bailiffs seems to be necessary: if consumers could avail themselves of a European network of bailiffs, contacting their own national officers and notifying the defendant of the judgment via the latter’s national officers, this issue would be solved.
d) The enforcement of judgments
· A much bigger problem than the lack of awareness and other issues described before, is the question of the enforcement of judgments. Even if the consumers have achieved a positive outcome, which, from the data we have, is mostly the case – in the process, it does not always mean that the decision has really been put in force. Sometimes the losing party uses a conscious strategy by protracting the fulfilment of the judgment or in using some other means to avoid the fulfilment. As the enforcement procedures are very different from one Member State to another, it is hard to get advice on who to turn to and what it may cost; furthermore, considering that an enforcement procedure, to be started in the country of the defendant with necessary legal assistance, can cost even more than the value of the claim itself, all the Small Claims Procedure benefits can be nullified.
Easier enforcement of the rulings issued within a Small Claims Procedure is advisable, in order to maintain the benefits of the Procedure, which also aims to favour fast and cheap cross-border dispute resolution and subsequently to encourage transactions within the European Single Market; for example, more definite coordination among bailiffs of the Member States, could represent a solution.
e) Lack of statistics
· One final problem is the fact that, as seen in the survey carried out by ECC-Net, most of the Member States do not gather separate statistics regarding European Small Claims Procedures; therefore there is a lack of reliable figures about the procedures.
In order to gain an adequate overview of the current state and problems within the European Small Claims Procedure, it is highly necessary to collect respective data on a national basis. This is necessary in order to make crucial conclusions of functioning and shortcomings of the procedure.
(Main findings and recommendations does not reflect the official opinion of the European Union. Responsibility for the information and views expressed lies entirely with the authors.)
"Consumers who want to take advantage of the opportunities offered by the Single Market need to be able to rely on a variety of effective and efficient means of redress. I am disappointed to see such a low level of assistance to consumers who have tried to use the European Small Claims Procedure. Today, any small amount counts and not getting proper compensation for consumers affects pockets, hurts confidence and slows down European growth.”
John Dalli, European Commissioner for Health and Consumer Policy - April 2012
Update, Sept. 21st 2012:
The European Commission has issued a press release on the ECC-Net survey on the Small Claims:
The final version of the Report, in English, is available at this link: http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf