Legal provisions of COM(2005)87 - European Small Claims Procedure - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)87 - European Small Claims Procedure. |
|---|---|
| document | COM(2005)87  |
| date | July 11, 2007 |
Contents
CHAPTER I - SUBJECT MATTER AND SCOPE
Article 1
Subject matter
This Regulation establishes a European procedure for small claims (hereinafter referred to as the European Small Claims Procedure), intended to simplify and speed up litigation concerning small claims in cross-border cases, and to reduce costs. The European Small Claims Procedure shall be available to litigants as an alternative to the procedures existing under the laws of the Member States.
This Regulation also eliminates the intermediate proceedings necessary to enable recognition and enforcement, in other Member States, of judgments given in one Member State in the European Small Claims Procedure.
Article 2
Scope
1. This Regulation shall apply, in cross-border cases, to civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim does not exceed EUR 2 000 at the time when the claim form is received by the court or tribunal with jurisdiction, excluding all interest, expenses and disbursements. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta jure imperii).
2. This Regulation shall not apply to matters concerning:
| (a) | the status or legal capacity of natural persons; |
| (b) | rights in property arising out of a matrimonial relationship, maintenance obligations, wills and succession; |
| (c) | bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; |
| (d) | social security; |
| (e) | arbitration; |
| (f) | employment law; |
| (g) | tenancies of immovable property, with the exception of actions on monetary claims; or |
| (h) | violations of privacy and of rights relating to personality, including defamation. |
3. In this Regulation, the term ‘Member State’ shall mean Member States with the exception of Denmark.
Article 3
Cross-border cases
1. For the purposes of this 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 seised.
2. Domicile shall be determined in accordance with Articles 59 and 60 of Regulation (EC) No 44/2001.
3. The relevant moment for determining whether there is a cross-border case is the date on which the claim form is received by the court or tribunal with jurisdiction.
CHAPTER II - THE EUROPEAN SMALL CLAIMS PROCEDURE
Article 4
Commencement of the Procedure
1. The claimant shall commence the European Small Claims Procedure by filling in standard claim Form A, as set out in Annex I, and lodging it with the court or tribunal with jurisdiction directly, by post or by any other means of communication, such as fax or e-mail, acceptable to the Member State in which the procedure is commenced. The claim form shall include a description of evidence supporting the claim and be accompanied, where appropriate, by any relevant supporting documents.
2. Member States shall inform the Commission which means of communication are acceptable to them. The Commission shall make such information publicly available.
3. Where a claim is outside the scope of this Regulation, the court or tribunal shall inform the claimant to that effect. Unless the claimant withdraws the claim, the court or tribunal shall proceed with it in accordance with the relevant procedural law applicable in the Member State in which the procedure is conducted.
4. Where the court or tribunal considers the information provided by the claimant to be inadequate or insufficiently clear or if the claim form is not filled in properly, it shall, unless the claim appears to be clearly unfounded or the application inadmissible, give the claimant the opportunity to complete or rectify the claim form or to supply supplementary information or documents or to withdraw the claim, within such period as it specifies. The court or tribunal shall use standard Form B, as set out in Annex II, for this purpose.
Where the claim appears to be clearly unfounded or the application inadmissible or where the claimant fails to complete or rectify the claim form within the time specified, the application shall be dismissed.
5. Member States shall ensure that the claim form is available at all courts and tribunals at which the European Small Claims Procedure can be commenced.
Article 5
Conduct of the Procedure
1. The European Small Claims Procedure shall be a written procedure. The court or tribunal shall hold an oral hearing if it considers this to be necessary or if a party so requests. The court or tribunal may refuse such a request if it considers that with regard to the circumstances of the case, an oral hearing is obviously not necessary for the fair conduct of the proceedings. The reasons for refusal shall be given in writing. The refusal may not be contested separately.
2. After receiving the properly filled in claim form, the court or tribunal shall fill in Part I of the standard answer Form C, as set out in Annex III.
A copy of the claim form, and, where applicable, of the supporting documents, together with the answer form thus filled in, shall be served on the defendant in accordance with Article 13. These documents shall be dispatched within 14 days of receiving the properly filled in claim form.
3. The defendant shall submit his response within 30 days of service of the claim form and answer form, by filling in Part II of standard answer Form C, accompanied, where appropriate, by any relevant supporting documents, and returning it to the court or tribunal, or in any other appropriate way not using the answer form.
4. Within 14 days of receipt of the response from the defendant, the court or tribunal shall dispatch a copy thereof, together with any relevant supporting documents to the claimant.
5. If, in his response, the defendant claims that the value of a non-monetary claim exceeds the limit set out in Article 2(1), the court or tribunal shall decide within 30 days of dispatching the response to the claimant, whether the claim is within the scope of this Regulation. Such decision may not be contested separately.
6. Any counterclaim, to be submitted using standard Form A, and any relevant supporting documents shall be served on the claimant in accordance with Article 13. Those documents shall be dispatched within 14 days of receipt.
The claimant shall have 30 days from service to respond to any counterclaim.
7. If the counterclaim exceeds the limit set out in Article 2(1), the claim and counterclaim shall not proceed in the European Small Claims Procedure but shall be dealt with in accordance with the relevant procedural law applicable in the Member State in which the procedure is conducted.
Articles 2 and 4 as well as paragraphs 3, 4 and 5 of this Article shall apply, mutatis mutandis, to counterclaims.
Article 6
Languages
1. The claim form, the response, any counterclaim, any response to a counterclaim and any description of relevant supporting documents shall be submitted in the language or one of the languages of the court or tribunal.
2. If any other document received by the court or tribunal is not in the language in which the proceedings are conducted, the court or tribunal may require a translation of that document only if the translation appears to be necessary for giving the judgment.
3. Where a party has refused to accept a document because it is not in either of the following languages:
| (a) | the official language of the Member State addressed, or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected or to where the document is to be dispatched; or |
| (b) | a language which the addressee understands, |
the court or tribunal shall so inform the other party with a view to that party providing a translation of the document.
Article 7
Conclusion of the Procedure
1. Within 30 days of receipt of the response from the defendant or the claimant within the time limits laid down in Article 5(3) or (6), the court or tribunal shall give a judgment, or:
| (a) | demand further details concerning the claim from the parties within a specified period of time, not exceeding 30 days; |
| (b) | take evidence in accordance with Article 9; or |
| (c) | summon the parties to an oral hearing to be held within 30 days of the summons. |
2. The court or tribunal shall give the judgment either within 30 days of any oral hearing or after having received all information necessary for giving the judgment. The judgment shall be served on the parties in accordance with Article 13.
3. If the court or tribunal has not received an answer from the relevant party within the time limits laid down in Article 5(3) or (6), it shall give a judgment on the claim or counterclaim.
Article 8
Oral hearing
The court or tribunal may hold an oral hearing through video conference or other communication technology if the technical means are available.
Article 9
Taking of evidence
1. The court or tribunal shall determine the means of taking evidence and the extent of the evidence necessary for its judgment under the rules applicable to the admissibility of evidence. The court or tribunal may admit the taking of evidence through written statements of witnesses, experts or parties. It may also admit the taking of evidence through video conference or other communication technology if the technical means are available.
2. The court or tribunal may take expert evidence or oral testimony only if it is necessary for giving the judgment. In making its decision, the court or tribunal shall take costs into account.
3. The court or tribunal shall use the simplest and least burdensome method of taking evidence.
Article 10
Representation of parties
Representation by a lawyer or another legal professional shall not be mandatory.
Article 11
Assistance for the parties
The Member States shall ensure that the parties can receive practical assistance in filling in the forms.
Article 12
Remit of the court or tribunal
1. The court or tribunal shall not require the parties to make any legal assessment of the claim.
2. If necessary, the court or tribunal shall inform the parties about procedural questions.
3. Whenever appropriate, the court or tribunal shall seek to reach a settlement between the parties.
Article 13
Service of documents
1. Documents shall be served by postal service attested by an acknowledgement of receipt including the date of receipt.
2. If service in accordance with paragraph 1 is not possible, service may be effected by any of the methods provided for in Articles 13 or 14 of Regulation (EC) No 805/2004.
Article 14
Time limits
1. Where the court or tribunal sets a time limit, the party concerned shall be informed of the consequences of not complying with it.
2. The court or tribunal may extend the time limits provided for in Article 4(4), Article 5(3) and (6) and Article 7(1), in exceptional circumstances, if necessary in order to safeguard the rights of the parties.
3. If, in exceptional circumstances, it is not possible for the court or tribunal to respect the time limits provided for in Article 5(2) to (6) and Article 7, it shall take the steps required by those provisions as soon as possible.
Article 15
Enforceability of the judgment
1. The judgment shall be enforceable notwithstanding any possible appeal. The provision of a security shall not be required.
2. Article 23 shall also apply in the event that the judgment is to be enforced in the Member State where the judgment was given.
Article 16
Costs
The unsuccessful party shall bear the costs of the proceedings. However, the court or tribunal shall not award costs to the successful party to the extent that they were unnecessarily incurred or are disproportionate to the claim.
Article 17
Appeal
1. Member States shall inform the Commission whether an appeal is available under their procedural law against a judgment given in the European Small Claims Procedure and within what time limit such appeal shall be lodged. The Commission shall make that information publicly available.
2. Article 16 shall apply to any appeal.
Article 18
Minimum standards for review of the judgment
1. The defendant shall be entitled to apply for a review of the judgment given in the European Small Claims Procedure before the court or tribunal with jurisdiction of the Member State where the judgment was given where:
| (a) |
or |
| (b) | the defendant was prevented from objecting to the claim by reason of force majeure, or due to extraordinary circumstances without any fault on his part, |
provided in either case that he acts promptly.
2. If the court or tribunal rejects the review on the basis that none of the grounds referred to in paragraph 1 apply, the judgment shall remain in force.
If the court or tribunal decides that the review is justified for one of the reasons laid down in paragraph 1, the judgment given in the European Small Claims Procedure shall be null and void.
Article 19
Applicable procedural law
Subject to the provisions of this Regulation, the European Small Claims Procedure shall be governed by the procedural law of the Member State in which the procedure is conducted.
CHAPTER III - RECOGNITION AND ENFORCEMENT IN ANOTHER MEMBER STATE
Article 20
Recognition and enforcement
1. A judgment given in a Member State in the European Small Claims Procedure shall be recognised and enforced in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition.
2. At the request of one of the parties, the court or tribunal shall issue a certificate concerning a judgment in the European Small Claims Procedure using standard Form D, as set out in Annex IV, at no extra cost.
Article 21
Enforcement procedure
1. Without prejudice to the provisions of this Chapter, the enforcement procedures shall be governed by the law of the Member State of enforcement.
Any judgment given in the European Small Claims Procedure shall be enforced under the same conditions as a judgment given in the Member State of enforcement.
2. The party seeking enforcement shall produce:
| (a) | a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and |
| (b) | a copy of the certificate referred to in Article 20(2) and, where necessary, the translation thereof into the official language of the Member State of enforcement or, if there are several official languages in that Member State, the official language or one of the official languages of court or tribunal proceedings of the place where enforcement is sought in conformity with the law of that Member State, or into another language that the Member State of enforcement has indicated it can accept. Each Member State may indicate the official language or languages of the institutions of the European Union other than its own which it can accept for the European Small Claims Procedure. The content of Form D shall be translated by a person qualified to make translations in one of the Member States. |
3. The party seeking the enforcement of a judgment given in the European Small Claims Procedure in another Member State shall not be required to have:
| (a) | an authorised representative; or |
| (b) | a postal address |
in the Member State of enforcement, other than with agents having competence for the enforcement procedure.
4. No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment given in the European Small Claims Procedure in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the Member State of enforcement.
Article 22
Refusal of enforcement
1. Enforcement shall, upon application by the person against whom enforcement is sought, be refused by the court or tribunal with jurisdiction in the Member State of enforcement if the judgment given in the European Small Claims Procedure is irreconcilable with an earlier judgment given in any Member State or in a third country, provided that:
| (a) | the earlier judgment involved the same cause of action and was between the same parties; |
| (b) | the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member State of enforcement; and |
| (c) | the irreconcilability was not and could not have been raised as an objection in the court or tribunal proceedings in the Member State where the judgment in the European Small Claims Procedure was given. |
2. Under no circumstances may a judgment given in the European Small Claims Procedure be reviewed as to its substance in the Member State of enforcement.
Article 23
Stay or limitation of enforcement
Where a party has challenged a judgment given in the European Small Claims Procedure or where such a challenge is still possible, or where a party has made an application for review within the meaning of Article 18, the court or tribunal with jurisdiction or the competent authority in the Member State of enforcement may, upon application by the party against whom enforcement is sought:
| (a) | limit the enforcement proceedings to protective measures; |
| (b) | make enforcement conditional on the provision of such security as it shall determine; or |
| (c) | under exceptional circumstances, stay the enforcement proceedings. |
CHAPTER IV - FINAL PROVISIONS
Article 24
Information
The Member States shall cooperate to provide the general public and professional circles with information on the European Small Claims Procedure, including costs, in particular by way of the European Judicial Network in Civil and Commercial Matters established in accordance with Decision 2001/470/EC.
Article 25
Information relating to jurisdiction, means of communication and appeals
1. By 1 January 2008 the Member States shall communicate to the Commission:
| (a) | which courts or tribunals have jurisdiction to give a judgment in the European Small Claims Procedure; |
| (b) | which means of communication are accepted for the purposes of the European Small Claims Procedure and available to the courts or tribunals in accordance with Article 4(1); |
| (c) | whether an appeal is available under their procedural law in accordance with Article 17 and with which court or tribunal this may be lodged; |
| (d) | which languages are accepted pursuant to Article 21(2)(b); and |
| (e) | which authorities have competence with respect to enforcement and which authorities have competence for the purposes of the application of Article 23. |
Member States shall apprise the Commission of any subsequent changes to this information.
2. The Commission shall make the information notified in accordance with paragraph 1 publicly available through publication in the Official Journal of the European Union and through any other appropriate means.
Article 26
Implementing measures
The measures designed to amend non-essential elements of this Regulation, including by supplementing it, relating to updates or technical amendments to the forms in the Annexes shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 27(2).
Article 27
Committee
1. The Commission shall be assisted by a Committee.
2. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
Article 28
Review
By 1 January 2014, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a detailed report reviewing the operation of the European Small Claims Procedure, including the limit of the value of the claim referred to in Article 2(1). That report shall contain an assessment of the procedure as it has operated and an extended impact assessment for each Member State.
To that end and in order to ensure that best practice in the European Union is duly taken into account and reflects the principles of better legislation, Member States shall provide the Commission with information relating to the cross-border operation of the European Small Claims Procedure. This information shall cover court fees, speed of the procedure, efficiency, ease of use and the internal small claims procedures of the Member States.
The Commission’s report shall be accompanied, if appropriate, by proposals for adaptation.
Article 29
Entry into force
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 1 January 2009, with the exception of Article 25, which shall apply from 1 January 2008.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.