Towards an amended European small claims procedure

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Members of the European Parliament and the Latvian Presidency of the Council agreed on 23rd June 2015 on the reform of the European Small Claims Procedure instituted by Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (press release from the Parliament). On 29 June the Permanent Representatives Committee (Coreper) approved, on behalf of the Council, the compromise reached (press release from the Council).

The European Small Claims Procedure has applied since 1 January 2009. It is an important step towards the creation of a genuine European civil Procedure. If the European order for payment is the first European procedure whose outcome is the issuance of a decision on the merits before the national courts, Regulation (EC) No 861/2007 is the first to standardize the procedure before a national court in contradictory proceedings. The European Small Claims Procedure also has, a priori, many practical advantages for the creditor. Firstly, it establishes a uniform procedure across the EU. Uniformity is per se a favour for the creditor, who does not need to investigate the contents of the various national procedures. This is especially important for a consumer, often without any legal knowledge, in particular when it comes to foreign proceedings. Secondly, the European Small Claims Procedure was ab initio thought for cross-border cases, which means, among other things, the use of forms designed to overcome the language barrier. Thirdly, the procedure benefits from strict deadlines governing virtually every stage of the proceedings. Low cost is also on the agenda since parties are exempted from mandatory representation and receive practical assistance. Finally, the decision benefits from the abolition of exequatur. The European Small Claims Procedure therefore seems particularly attractive to the creditor. However, it is widely accepted that, for multiple reasons, the procedure has been underused in most countries.

The aim of the reform is to make the European Small Claims Procedure more efficient, in particular by reflecting the technological progress made in the justice systems in the member states. It is also to enlarge the scope of application of the procedure by making it accessible in a larger number of cases, in particular for businesses. According to the press releases mentioned above, the key elements are the following:

  • the rise of the ceiling for claims, which should go up from 2000 euros to 5000 euros. This is the minimum we had suggested at a conference in Lille in the first semester of 2012 and which was published in January 2013 (Le règlement des petits litiges: un premier bilan plutôt décevant, in Un recouvrement de créances sans frontières ?, Jérôme Attard, Michel Dupuis, Maxence Laugier, Vincent Sagaert, and Denis Voinot (ed.), Larcier, 2013, at 65). The possibility of raising the threshold even further will be examined after the first five years of application of the new rules;
  • the obligation of the member states to ensure the court fees charged for European Small Claims Procedures are not disproportionate and not higher than the court fees for national simplified court procedures, as well as the obligation to offer remote means of payment for the payment of court fees;
  • an increase in the use of distance communication technology for oral hearings and taking of evidence, and the establishment of a general framework that allows the use of electronic service of documents. This is an important aspect of the e-justice strategy;
  • the minimisation of the translation requirement (and related costs) as regards the certificate necessary for the enforcement of a judgment given in the European Small Claims Procedure. Details of the agreement on this point are found wanting as one of the amendments originally suggested by the European Commission has been seen by some as a way to legally impose English as the common language of Europe. Indeed, EU Member States would be required to accept an official language of the EU which is not one of their official languages and it is expected that the language chosen will be English;
  • the creation of "a bridge" between the European Small Claims Procedure and the European Order for Payment Procedure by allowing the claimant to use the European Small Claims Procedure when a statement of opposition has been lodged against a European order for payment.

The amended Regulation will now be submitted to the European Parliament for a vote at first reading, and to the Council for adoption.

(Altalex, 24 August 2015. Article by Emmanuel Guinchard)

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