Small Claims and Procedural Simplification: Evidence from Selected EU Legal Systems

Abstract

Most legal systems have a long-standing tradition of simplified procedures for the disposition of small claims. Obviously, the elements that qualify a claim as ‘small’ vary: the most significant one, meaning the amount of money at stake, reflects the economic situation of a given country. In any event, and regardless of the maximum sum that can be recovered, small claims are the claims that are most important to ordinary citizens. For if people had to turn to full-fledged litigation, probably many would relinquish their rights, being unable to bear the costs and the delays of a traditional judicial procedure. That is the reason why legal systems should provide inexpensive and expedited procedures for small claims if they really want to fulfil the promise of access to justice for all. This essay examines the solutions adopted in France and Spain, pointing out that the use of easily available forms can make a big difference, as can also the accessibility of IT platforms specifically designed for the recovery of small credits. The state of affairs in Italy for simplified procedures for small claims is also addressed through a description of the jurisdiction of the Italian justices of the peace. It is astonishing to discover that almost a century ago scholars were already debating over the need to provide for procedural models suitable for small claims, so that one may be inclined to think that nothing new is invented when contemporary lawmakers provide for simplified procedures aimed at granting small claims an expedited, inexpensive but also fair treatment in court. More or less, all European Union legal systems deal with small claims in specific ways, sometimes allocating them to special judicial bodies (for instance, small claims courts or courts operated by lay judges), other times relying on procedural rules that are different from the ones followed before the ordinary courts of first instance. Alongside national procedures, the European Small Claims Procedure (hereinafter ESCP) exists for cross-border cases, so that two parallel procedures (the national one and the European one) are available for small claims that meet the requirements for the application of the European instrument at the choice of the plaintiff. This essay will not deal with the ESCP even though it is a piece of European legislation specifically aimed at devising a uniform, simplified procedure for the recovery of small claims across Member States. A recent, comprehensive study has analysed the ESCP in depth, clarifying the background of the Regulation, its purposes and shortcomings, and therefore this author does not consider it necessary to repeat concepts that have been masterfully expounded by someone else. Furthermore, the optional nature of the ESCP is such that its actual application, at least in some Member States, is negligible. This is the case, for instance, in Italy, where the practical relevance of the ESCP is inversely proportional to the theoretical commentaries on the Regulation produced by Italian scholars. In addition to Italy, the legal systems that this author has chosen for her analysis of simplified procedures for the disposition of small claims are those of France and Spain. This choice does not signify a value judgment, since a value judgment is not possible when looking at the two national procedures from a distance and without the benefit of empirical data. That said, the impression of a foreign ‘bystander’ is that both the French and the Spanish procedures are (at least, in theory) efficient, simple and with a touch of modernity that potentially will make them even more accessible to individuals. After all, the ability of a legal system to grant access to justice across the board is tested not with respect to cases where the amount at stake is large and the parties have all the resources (financial, social and cultural) necessary to navigate complex, costly and long court procedures, but with respect to cases where the amount at stake is small.