Legal provisions of COM(2013)794 - Amendment of Regulation 861/2007 establishing a European Small Claims Procedure and Regulation 1896/2006 creating a European order for payment procedure

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dossier COM(2013)794 - Amendment of Regulation 861/2007 establishing a European Small Claims Procedure and Regulation 1896/2006 creating a European ...
document COM(2013)794 EN
date December 16, 2015

Contents

Article 1

Regulation (EC) No 861/2007 is amended as follows:

(1)Article 2 is replaced by the following:

‘Article 2

Scope

1. This Regulation shall apply, in cross-border cases as defined in Article 3, to civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim does not exceed EUR 5 000 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 or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;

(c)maintenance obligations arising from a family relationship, parentage, marriage or affinity;

(d)wills and succession, including maintenance obligations arising by reason of death;

(e)bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(f)social security;

(g)arbitration;

(h)employment law;

(i)tenancies of immovable property, with the exception of actions on monetary claims; or

(j)violations of privacy and of rights relating to personality, including defamation.’.

(2)In Article 3, paragraphs 2 and 3 are replaced by the following:

‘2.   Domicile shall be determined in accordance with Articles 62 and 63 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (7).

3. The relevant moment for determining whether a case is a cross-border case is the date on which the claim form is received by the court or tribunal with jurisdiction.

(7) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).’."

(3)Article 4 is amended as follows:

(a)In the second subparagraph of paragraph 4, the following sentence is added:

‘The court or tribunal shall inform the claimant of such dismissal and whether an appeal is available against such dismissal.’;

(b)Paragraph 5 is replaced by the following:

‘5.   Member States shall ensure that the standard claim Form A is available at all courts and tribunals before which the European Small Claims Procedure can be commenced, and that it is accessible through relevant national websites.’.

(4)In Article 5, paragraph 1 is replaced by the following:

‘1.   The European Small Claims Procedure shall be a written procedure.

1a.   The court or tribunal shall hold an oral hearing only if it considers that it is not possible to give the judgment on the basis of the written evidence 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 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 from a challenge to the judgment itself.’.

(5)Article 8 is replaced by the following:

‘Article 8

Oral hearing

1. Where an oral hearing is considered necessary in accordance with Article 5(1a), it shall be held by making use of any appropriate distance communication technology, such as videoconference or teleconference, available to the court or tribunal, unless the use of such technology, on account of the particular circumstances of the case, is not appropriate for the fair conduct of the proceedings.

Where the person to be heard is domiciled or habitually resident in a Member State other than the Member State of the court or tribunal seised, that person's attendance at an oral hearing by way of videoconference, teleconference or other appropriate distance communication technology shall be arranged by making use of the procedures provided for in Council Regulation (EC) No 1206/2001 (8).

2. A party summoned to be physically present at an oral hearing may request the use of distance communication technology, provided that such technology is available to the court or tribunal, on the grounds that the arrangements for being physically present, in particular as regards the possible costs incurred by that party, would be disproportionate to the claim.

3. A party summoned to attend an oral hearing through distance communication technology may request to be physically present at that hearing. The standard claim Form A and the standard answer Form C, established in accordance with the procedure referred to in Article 27(2), shall provide information to the parties that the recovery of any costs incurred by a party as a result of being physically present at the oral hearing, upon request of that party, is subject to the conditions laid down in Article 16.

4. The decision of the court or tribunal on a request provided for in paragraphs 2 and 3 may not be contested separately from a challenge to the judgment itself.

(8) Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, p. 1).’."

(6)Article 9 is replaced by the following:

‘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. It shall use the simplest and least burdensome method of taking evidence.

2. The court or tribunal may admit the taking of evidence through written statements of witnesses, experts or parties.

3. Where the taking of evidence involves a person being heard, that hearing shall be carried out in accordance with the conditions set out in Article 8.

4. The court or tribunal may take expert evidence or oral testimony only if it is not possible to give the judgment on the basis of other evidence.’.

(7)Article 11 is replaced by the following:

‘Article 11

Assistance for the parties

1. The Member States shall ensure that it is possible for the parties to receive both practical assistance in filling in the forms and general information on the scope of application of the European Small Claims Procedure, as well as general information as to which courts or tribunals in the Member State concerned are competent to give a judgment in the European Small Claims Procedure. That assistance shall be provided free of charge. Nothing in this paragraph requires the Member States to provide for legal aid or for legal assistance in the form of a legal assessment of a specific case.

2. The Member States shall ensure that information on the authorities or organisations competent to give assistance in accordance with paragraph 1 is available at all courts and tribunals before which the European Small Claims Procedure can be commenced, and is accessible through relevant national websites.’.

(8)Article 13 is replaced by the following:

‘Article 13

Service of documents and other written communications

1. The documents referred to in Article 5(2) and (6) and judgments given in accordance with Article 7 shall be served:

(a)by postal service, or

(b)by electronic means:

(i)where such means are technically available and admissible in accordance with the procedural rules of the Member State in which the European Small Claims Procedure is conducted and, if the party to be served is domiciled or habitually resident in another Member State, in accordance with the procedural rules of that Member State; and

(ii)where the party to be served has expressly accepted in advance that documents may be served on him by electronic means or is, in accordance with the procedural rules of the Member State in which that party is domiciled or habitually resident, under a legal obligation to accept that specific method of service.

The service shall be attested by an acknowledgment of receipt including the date of receipt.

2. All written communications not referred to in paragraph 1 between the court or tribunal and the parties or other persons involved in the proceedings shall be carried out by electronic means attested by an acknowledgment of receipt, where such means are technically available and admissible in accordance with the procedural rules of the Member State in which the European Small Claims Procedure is conducted, provided that the party or person has accepted in advance such means of communication or is, in accordance with the procedural rules of the Member State in which that party or person is domiciled or habitually resident, under a legal obligation to accept such means of communication.

3. In addition to any other means available in accordance with the procedural rules of the Member States for expressing acceptance in advance, as required under paragraphs 1 and 2, of the use of electronic means, it shall be possible to express such acceptance by means of the standard claim Form A and the standard answer Form C.

4. If service in accordance with paragraph 1 is not possible, service may be effected by any of the methods provided for in Article 13 or 14 of Regulation (EC) No 1896/2006.

If communication in accordance with paragraph 2 is not possible, or, on account of the particular circumstances of the case, not appropriate, any other method of communication admissible under the law of the Member State in which the European Small Claims Procedure is conducted may be used.’.

(9)The following Article is inserted:

‘Article 15a

Court fees and methods of payment

1. The court fees charged in a Member State for the European Small Claims Procedure shall not be disproportionate and shall not be higher than the court fees charged for national simplified court procedures in that Member State.

2. The Member States shall ensure that the parties can pay the court fees by means of distance payment methods which allow the parties to make the payment also from a Member State other than the Member State in which the court or tribunal is situated, by offering at least one of the following methods of payment:

(a)bank transfer;

(b)credit or debit card payment; or

(c)direct debit from the claimant's bank account.’.

(10)In Article 17, paragraph 2 is replaced by the following:

‘2.   Articles 15a and 16 shall apply to any appeal.’.

(11)Article 18 is replaced by the following:

‘Article 18

Review of the judgment in exceptional cases

1. A defendant who did not enter an appearance shall be entitled to apply for a review of the judgment given in the European Small Claims Procedure before the competent court or tribunal of the Member State in which the judgment was given, where:

(a)the defendant was not served with the claim form, or, in the event of an oral hearing, was not summoned to that hearing, in sufficient time and in such a way as to enable him to arrange for his defence; or

(b)the defendant was prevented from contesting the claim by reason of force majeure or due to extraordinary circumstances without any fault on his part,

unless the defendant failed to challenge the judgment when it was possible for him to do so.

2. The time limit for applying for a review shall be 30 days. It shall run from the day the defendant was effectively acquainted with the contents of the judgment and was able to react, at the latest from the date of the first enforcement measure having the effect of making the property of the defendant non-disposable in whole or in part. No extension of the time limit may be granted.

3. If the court rejects the application for a review referred to in paragraph 1 on the basis that none of the grounds for a review set out in that paragraph apply, the judgment shall remain in force.

If the court decides that a review is justified on any of the grounds set out in paragraph 1, the judgment given in the European Small Claims Procedure shall be null and void. However, the claimant shall not lose the benefit of any interruption of prescription or limitation periods where such an interruption applies under national law.’.

(12)In Article 20, paragraph 2 is replaced by the following:

‘2.   At the request of one of the parties, the court or tribunal shall issue a certificate concerning a judgment given in the European Small Claims Procedure using the standard Form D, as set out in Annex IV, at no extra cost. Upon request, the court or tribunal shall provide that party with the certificate in any other official language of the institutions of the Union by making use of the multilingual dynamic standard form available on the European e-Justice Portal. Nothing in this Regulation shall oblige the court or tribunal to provide a translation and/or transliteration of the text entered in the free-text fields of that certificate.’.

(13)In Article 21(2), point (b) is replaced by the following:

‘(b)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.’.

(14)The following Article is inserted:

‘Article 21a

Language of the certificate

1. Each Member State may indicate the official language or languages of the institutions of the Union, other than its own, which it can accept for the certificate referred to in Article 20(2).

2. Any translation of the information on the substance of a judgment provided in a certificate as referred to in Article 20(2) shall be done by a person qualified to carry out translations in one of the Member States.’.

(15)The following Article is inserted:

‘Article 23a

Court settlements

A court settlement approved by or concluded before a court or tribunal in the course of the European Small Claims Procedure and that is enforceable in the Member State in which the procedure was conducted shall be recognised and enforced in another Member State under the same conditions as a judgment given in the European Small Claims Procedure.

The provisions of Chapter III shall apply, mutatis mutandis, to court settlements.’.

(16)Article 25 is replaced by the following:

‘Article 25

Information to be provided by Member States

1. By 13 January 2017, the Member States shall communicate to the Commission:

(a)the courts or tribunals competent to give a judgment in the European Small Claims Procedure;

(b)the means of communication accepted for the purposes of the European Small Claims Procedure and available to the courts or tribunals in accordance with Article 4(1);

(c)the authorities or organisations competent to provide practical assistance in accordance with Article 11;

(d)the means of electronic service and communication technically available and admissible under their procedural rules in accordance with Article 13(1), (2) and (3), and the means, if any, for expressing acceptance in advance of the use of electronic means as required by Article 13(1) and (2) available under their national law;

(e)the persons or types of professions, if any, under a legal obligation to accept service of documents or other written communications by electronic means in accordance with Article 13(1) and (2);

(f)the court fees of the European Small Claims Procedure or how they are calculated, as well as the methods of payment accepted for the payment of court fees in accordance with Article 15a;

(g)any appeal available under their procedural law in accordance with Article 17, the time period within which such an appeal is to be lodged, and the court or tribunal with which such an appeal may be lodged;

(h)the procedures for applying for a review as provided for in Article 18 and the competent courts or tribunals for such a review;

(i)the languages they accept pursuant to Article 21a(1); and

(j)the authorities competent with respect to enforcement and the authorities competent for the purposes of the application of Article 23.

Member States shall inform the Commission of any subsequent changes to that information.

2. The Commission shall make the information communicated in accordance with paragraph 1 publicly available by any appropriate means, such as the European e-Justice Portal.’.

(17)Article 26 is replaced by the following:

‘Article 26

Amendment of the Annexes

The Commission shall be empowered to adopt delegated acts in accordance with Article 27 concerning the amendment of Annexes I to IV.’.

(18)Article 27 is replaced by the following:

‘Article 27

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 26 shall be conferred on the Commission for an indeterminate period of time from 13 January 2016.

3. The delegation of power referred to in Article 26 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 26 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’.

(19)Article 28 shall be replaced by the following:

‘Article 28

Review

1. By 15 July 2022, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the operation of this Regulation, including an evaluation as to whether:

(a)a further increase of the limit referred to in Article 2(1) is appropriate in order to attain the objective of this Regulation of facilitating access to justice for citizens and small and medium-sized enterprises in cross-border cases; and

(b)an extension of the scope of the European Small Claims Procedure, in particular to claims for remuneration, is appropriate to facilitate access to justice for employees in cross-border employment disputes with their employer, after considering the full impact of such an extension.

That report shall be accompanied, if appropriate, by legislative proposals.

To that end and by 15 July 2021, Member States shall provide the Commission with information relating to the number of applications under the European Small Claims Procedure as well as the number of requests for enforcement of judgments given in the European Small Claims Procedure.

2. By 15 July 2019, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the dissemination of information about the European Small Claims Procedure in the Member States, and may produce recommendations as to how to make that procedure better known.’.

Article 2

Regulation (EC) No 1896/2006 is amended as follows:

(1)In Article 7, paragraph 4 is replaced by the following:

‘4.   In an Appendix to the application, the claimant may indicate to the court which, if any, of the procedures listed in points (a) and (b) of Article 17(1) he requests to be applied to his claim in the subsequent civil proceedings in the event that the defendant lodges a statement of opposition against the European order for payment.

In the Appendix provided for in the first subparagraph, the claimant may also indicate to the court that he opposes a transfer to civil proceedings within the meaning of point (a) or point (b) of Article 17(1) in the event of opposition by the defendant. This does not prevent the claimant from informing the court thereof subsequently, but in any event before the order is issued.’.

(2)Article 17 is replaced by the following:

‘Article 17

Effect of the lodging of a statement of opposition

1. If a statement of opposition is lodged within the time limit laid down in Article 16(2), the proceedings shall continue before the competent courts of the Member State of origin unless the claimant has explicitly requested that the proceedings be terminated in that event. The proceedings shall continue in accordance with the rules of:

(a)the European Small Claims Procedure laid down in Regulation (EC) No 861/2007, if applicable; or

(b)any appropriate national civil procedure.

2. Where the claimant has not indicated which of the procedures listed in points (a) and (b) of paragraph 1 he requests to be applied to his claim in the proceedings that ensue in the event of a statement of opposition or where the claimant has requested that the European Small Claims Procedure as laid down in Regulation (EC) No 861/2007 be applied to a claim that does not fall within the scope of that Regulation, the proceedings shall be transferred to the appropriate national civil procedure, unless the claimant has explicitly requested that such transfer not be made.

3. Where the claimant has pursued his claim through the European order for payment procedure, nothing under national law shall prejudice his position in subsequent civil proceedings.

4. The transfer to civil proceedings within the meaning of points (a) and (b) of paragraph 1 shall be governed by the law of the Member State of origin.

5. The claimant shall be informed of whether the defendant has lodged a statement of opposition and of any transfer to civil proceedings within the meaning of paragraph 1.’.

(3)In Article 25, paragraph 1 is replaced by the following:

‘1.   Where, in a Member State, the court fees for civil proceedings within the meaning of point (a) or point (b) of Article 17(1), as applicable, are equivalent to or higher than those of the European order for payment procedure, the total of the court fees for a European order for payment procedure and for the civil proceedings that ensue in the event of a statement of opposition in accordance with Article 17(1) shall not exceed the fees for those proceedings without a preceding European order for payment procedure in that Member State.

No additional court fees may be charged in a Member State for the civil proceedings that ensue in the event of a statement of opposition in accordance with point (a) or point (b) of Article 17(1), as applicable, if the court fees for such proceedings in that Member State are lower than those for the European order for payment procedure.’.

(4)Article 30 is replaced by the following:

‘Article 30

Amendment of the Annexes

The Commission shall be empowered to adopt delegated acts in accordance with Article 31 concerning the amendment of Annexes I to VII.’.

(5)Article 31 is replaced by the following:

‘Article 31

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 30 shall be conferred on the Commission for an indeterminate period of time from 13 January 2016.

3. The delegation of power referred to in Article 30 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 30 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’.

Article 3

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from 14 July 2017 with the exception of point (16) of Article 1, amending Article 25 of Regulation (EC) No 861/2007, which shall apply from 14 January 2017.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.