A new judicial tool to enforce consumer rights. European Small Claims Procedure: a new judicial tool to enforce consumer rights. In light of the above, it is of primary interest to analyze a cross-border legal procedure introduced by the European Union in 2007 which could provide supplementary help to consumers when all amicable attempts to solve a dispute have failed: the European Small Claims Procedure.
Starting from January 2009, in fact, it has been possible to commence this simple and incisive judicial path in the case of small cross border disputes. Introduced by Regulation (EC) No 861/2007 of the European Parliament and Council, this legal tool ensures judicial cooperation between Member States in all civil and commercial claims whose value does not exceed 2000 Euros. The need to launch this new procedure came directly from the Internal Market goals (included in the Treaty establishing the European Community – Articles 61 c and 67) and, in particular, from the will to “maintain and develop an area of freedom, security and justice” and also to “eliminate obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States”.
The Regulation was preceded by the Green Paper on a European Order for payment procedure and on measures to simplify and speed up small claims litigation. The European Commission presented the proposal (COD/2005/0020) that led to the adoption of this Regulation on 15 March 2005.
In the European Judicial Atlas for Civil Matters it is possible to get information on the procedure, on the competent Courts and to download the forms to start the proceedings.
What the European Small Claims Procedure introduced. The European Small Claims Procedure is a valid alternative to the already existing proceedings within Member States, which removes all the intermediate measures aimed at recognizing and enforcing the national judgments abroad. Article 2, explicitly states that the Small Claims Procedure does not apply to some matters; it is likewise important to specify that the Regulation does not apply to Denmark. For the purposes of the Regulation, a cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court or tribunal in question.
It is a proper judicial procedure, carried out in a written way. The European Small Claims Procedure is a simplified procedure aimed at reducing length and cutting costs of judicial proceedings, including costs of legal representation before a court, thus facilitating access to justice for every consumer who might face a cross-border dispute.
Oral hearing should be held only if necessary upon individual decision of the judge, who is not bound by request of a party wishing to have a hearing. Evidence should be taken using the least burdensome method, including written statements and oral hearing could be carried out in a form of videoconference.
The judgment given in a Member State shall be recognized and enforced in other Member States without the need for a declaration of enforceability or any possibility of opposing its recognition.
How the European Small Claims Procedure works.
It follows a series of steps:
A) Filing the claim. To file a claim for a sum less than 2,000 Euros, the claimant fills in a standard claim form (Form A, provided in Annex I to the Regulation), giving details of the claim, the sum demanded, etc., and lodges it with the competent court by any means of communication acceptable to the Member State in which the action is taken. If the claim is outside the scope of the Regulation the court will notify the claimant to that effect; if the claim is not withdrawn, the court will proceed with it in accordance with the relevant applicable procedural law in that Member State.
B) Correcting and/or completing the claim form. If the claimant has not provided enough information, the court will send him a Form B (Annex II) asking for the missing information. The claim will be rejected if the claimant fails to complete or correct the claim in the time specified, or if it is manifestly unfounded or inadmissible.
C) Notifying the defendant. Once the court has received the properly filled in claim form, it prepares a standard answer form (Form C, Annex III). This, together with a copy of the claim and, where applicable, the supporting documents, is served on the defendant by post with dated acknowledgement of receipt within 14 days.
D) The defendant’s response. The defendant then has 30 days to prepare and return his response, counting from the date of service of the answer form.
E) The defendant’s response is forwarded to the claimant. Within 14 days of receiving the defendant’s response, the court forwards a copy of it to the claimant, with any relevant supporting documents.
F) Any counterclaim submitted by the defendant (using Form A) is served on the claimant in the same way as the original claim was served on the defendant. The claimant has 30 days to respond. If the sum of the counterclaim is more than 2,000 Euros, both claim and counterclaim will be dealt with in accordance with the relevant procedural law applicable in the Member State in which the action is taken (and not in accordance with the European Small Claims Procedure).
G) Judgment is given within 30 days. The court must give judgment within 30 days of receipt of the response from the defendant (or claimant, if there is a counterclaim). It can, however, decide to ask for further information (the parties have 30 days to reply) or to take evidence on the matter or to summon the parties to an oral hearing (within 30 days); in these cases, the court gives its judgment within 30 days of receiving the information or holding the hearing. If the parties do not reply in time,
the court will still give its judgment.
H) Taking evidence. The court determines the extent of the evidence necessary for its judgment and the means of taking it, using the simplest and least burdensome method.
I) Judgments are recognized and enforced in the other Member States, and cannot be reviewed by reason of substance in the Member State of enforcement. At the request of one party the court will issue a certificate of judgment (without further cost), using Form D (Annex IV).
J) Enforcement of the judgment. This is governed by the law of the Member State in which the judgment is enforced. The party seeking enforcement produces an original copy of the judgment, and of the certificate (Form D) translated by a qualified person into the language, or one of the languages, of the Member State of enforcement. The party is not required to have an authorized representative or a postal address in the Member State of enforcement, other than with agents competent
to carry out the enforcement procedure. The authorities cannot require any security, bond or deposit on the grounds that the claimant is a foreign national or is not domiciled or resident in the Member State of enforcement.
Refusal of enforcement and appeals: the court in the Member State of enforcement can, at the request of the defendant, refuse to enforce the judgment when:
• the judgment is irreconcilable with an earlier judgment between the same parties for the same cause of action;
• the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition there;
• the irreconcilability of the judgments was not and could not have been raised as an objection in the proceedings in the court where the judgment in the European Small Claims Procedure was given.
When a party has challenged or applied for a review of a judgment given in the European Small Claims Procedure, the competent authority in the Member State of enforcement can limit the enforcement procedure to protective measures, make enforcement conditional on some security, or, in exceptional circumstances, stay the enforcement proceedings.
Appeals against a judgment given in the European Small Claims Procedure are governed by the procedural law of the Member States, which had to inform the Commission whether an appeal is available under their procedural law and in what court. The Commission made that information publicly available on the Website of European Judicial Atlas in civil matters.
The defendant can apply to the court that gave a judgment for a review when:
• the claim form or summons to an oral hearing was not served by a method with proof of receipt by him personally;
• service was not effected in time for him to prepare his defence, without any fault on his part;
• he was prevented from objecting to the claim by reasons of force majeure or due to extraordinary circumstances, without any fault on his part.
In any of these cases, the defendant is expected to act promptly. When a review is justified, the original judgment becomes null and void.
Role of the courts and provisions relating to languages, hearings and costs
The court does not require the parties to make any legal assessment of the claim. If necessary, it informs the parties about procedural questions, and whenever appropriate it seeks to reach a settlement between them.
Languages and translations. The claim must be submitted in the language, or one of the languages, of the court, as must the response, any counterclaim, the description of supporting documents, etc.
The court can require a translation of a document received in another language only if that document seems to be necessary for giving the judgment. If a party refuses to accept a document because it is in a language he does not understand or a language other than one of the official languages of the Member State addressed, the court will notify the other party so that he can supply a translation.
Oral hearings. The court will hold an oral hearing only if this appears to be necessary or if requested by one of the parties. The request may be refused if an oral hearing is obviously not necessary for the fair conduct of the proceedings. The hearing may be conducted through videoconference or other communication technology.
Costs. The costs of the proceedings are borne by the unsuccessful party.
Scope of the Regulation: the European Small Claims Procedure applies to cross-border cases, that is, cases in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court where the action is brought. Domicile is determined in accordance with Articles 59 and 60 of Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In order to determine whether a party is domiciled in the Member State of the court, it applies its internal law; if the party is not domiciled in that Member State, the court determines whether he/she is domiciled in another Member State by applying the law of that Member State (Article 59). Companies and legal persons are domiciled in the place of their statutory seat, their central administration or their principal place of business (Article 60).
The Regulation does not apply to revenue, customs or administrative matters, to the liability of the State (acta jure imperii), or to:
• the status or legal capacity of natural persons;
• matrimonial regimes, maintenance obligations, wills and successions;
• bankruptcy, compositions and similar proceedings;
• social security;
• employment law;
• tenancies of immovable property, except for monetary claims;
• violations of privacy and of rights relating to personality, including defamation.