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Presently there are more and more cross-border disputes which involve more than one Member State of the European Union. There is a wide range of possible issues. Individuals may be involved in an accident while on holiday abroad, or they may buy goods abroad which later turn out to be faulty. Also, the owners of small businesses may face difficulties when they want to pursue their claims in another Member State, such as a hotel owner left with an unpaid bill who wants to pursue his legitimate claim.
The obstacles to obtaining a fast and inexpensive judgment are intensified in such a cross-border context. It will, for example, often be necessary to hire two lawyers, there are additional translation and interpretation costs and miscellaneous other factors such as extra travel costs of litigants, witnesses, lawyers etc. At present, the expense of obtaining a judgment against a defendant in another Member State is often disproportionate if the amount of money involved is only small.
Likewise, the delays and expenses that you have to expect when the other party is domiciled in a different Member State become a major obstacle to effective access to justice in cases where the justification of the claim at stake is not contested at all by the defendant. This situation privileges bad debtors in cross-border situations and may discourage economic operators from extending their activities beyond their Member State of origin.
At present, Community legislation with respect to simplified and accelerated procedures is limited to Article 5 of Directive 2000/35/EC on combating late payment in commercial transactions which requires the Member States to ensure the availability of recovery procedures for uncontested claims so that an enforceable title can be obtained normally within 90 calendar days. Under the directive, Member States are, however, not required to adopt a specific procedure or to amend their existing legal procedures in a specific way. It remains therefore to be seen if the transposition of Article 5 will entail significant changes in the procedural systems of the Member States.
The European Council meeting in Tampere in October 1999 called for an improvement of access to justice in Europe. It was stated that, in a genuine European Area of Justice, individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the Member States. The European Council invited the Community institutions to establish special common procedural rules for simplified and accelerated cross-border litigation on small consumer and commercial claims and on uncontested claims.
The Programme of measures for the implementation of the principle of mutual recognition of decisions in civil and commercial matters adopted by the Council on 30 November 2000 provides for the adoption of measures in this respect in three stages. In the first stage, a European Enforcement Order for uncontested claims should be introduced, and the settlement of cross-border litigation on Small Claims should be simplified and speeded up.
Following the Tampere conclusions and the mutual recognition programme, the European Commission in December 2002 adopted a Green Paper on a European Order for Payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper raised several questions in order to explore the content of possible Community instruments in these two fields.
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure will allow creditors to recover their uncontested civil and commercial claims before the courts of the Member States according to a uniform procedure that operates on the basis of standard forms. Due to the existence of a procedure that will be common in all Member States, the need for creditors to familiarise themselves with foreign civil procedures will be reduced to a minimum.
The procedure does not require presence before the court; it can even be started and handled in a purely electronic way. The claimant only has to submit his application, after which the procedure will lead its own life. It does not require any further formalities or intervention on the part of the claimant. This will ensure a swift and efficient handling of the claim, which should substantially reduce the length of traditional court proceedings.
In addition, as the assistance of a lawyer is not required, the procedure will keep costs at a minimum. Language problems are minimised thanks to the availability of standard forms for the communication between the parties and the court that are available in all EU languages.
The judicial decision obtained as a result of this procedure will circulate freely in the other Member States; the creditor will not have to undertake intermediate steps to enforce the decision abroad.
The Regulation will be applicable from 12 December 2008.
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure will for the first time provide citizens and businesses all over Europe with a speedy and affordable civil procedure which is uniform in all Member States and in all procedural steps from the commencement of the procedure to the final enforcement of the judgement.
The procedure will apply in civil and commercial matters where the value of a claim does not exceed 2000 €. The procedure applies to pecuniary claims as well as to non-pecuniary claims.
The Regulation introduces standard forms to be used by the parties and the court and establishes time limits for the parties and for the court in order to simplify and speed up litigation concerning small claims.
The procedure is a written procedure, unless an oral hearing is considered necessary by the court. The court may hold a hearing or take evidence through a video conference or other communications technology if the technical means are available. The parties are not required to be represented by a lawyer or another legal professional. The unsuccessful party shall bear the costs of the proceedings. However, the court shall not award costs to the successful party to the extent that they were unnecessarily incurred or disproportionate to the claim.
Finally, the Regulation abolishes the intermediate measures to enable the recognition and enforcement of a judgement given in a European Small Claims Procedure. A judgement shall be recognised and enforced in another Member State automatically and without any possibility of opposing its recognition, unless the defendant was not served with the papers.
The European Small Claims Procedure will apply from 1 January 2009.
Last update: 04-11-2009