European Small Claims Procedure Research Articles

Simplification of Debt Collection in the EU (European Order for Payment Procedure and European Small Claims Procedure) Italian Report

After a cursory glance at the Italian procedures for the recovery of money claims, domestic and cross-borders, this essay expands on a few aspects of the implementation of Regulation (CE) No. 1896/2006 and on the failed implementation of Regulation (CE) No. 861/2007.

Tackling Language Obstacles in Cross-Border Litigation: The European Order for Payment and the European Small Claims Procedure Approach

textabstractIn cross-border litigation, language differences are one of the main obstacles preventing parties from taking action and defending their rights. The Regulations creating a European Order for Payment Procedure (EOP) and establishing a European Small Claims Procedure (ESCP) have introduced the first EU-wide procedures, the goals of which are to simplify, speed up, and reduce the costs of cross-border litigation; they also include an attempt to reduce language obstacles. However, the simplification they propose must not sacrifice parties' right of access to justice and fair trial. This paper addresses the question as to the way language obstacles in cross-border litigation are tackled by the EOP and the ESCP. It further seeks to determine the extent to which these instruments balance the aim to simplify the procedures by reducing language obstacles and the parties' right to a fair trial and access to justice.

ALGUNAS REFLEXIONES ACERCA DEL PROCESO EUROPEO DE ESCASA CUANTÍA

One of the main objectives of European institutions have been, doubtless, the Common Market creation. Nevertheless, the different Member States need to rise some existing exception from their own law system. European Commission is working in this same thing nowadays and it’s trying to find a Common European Law Space to analyze all the European trials about different sujects; in this same place we can find the Regulation (EC) No. 861/2007, of the European Parliament and of the Council, of 11 july 2007, establishing a European Small Claims Procedure; that have been created as an easy and simple procedure for all those small claims of European States (unless Denmark).

The Admissibility of Defences against the Substantive Claim in Cross-Border Enforcement of Judgments in Europe

Authors discuss the admissibility of defences against the substantive claim (e.g. objection of the debtor that the enforceable claim has been discharged) in cross-border enforcement in Europe. In the context of Regulation 44/2001 in some countries, like Germany, courts have admitted such defences in exequatur proceeding. In other countries, like Slovenia and Austria, such objections have to be asserted with legal remedies of the national execution law. Debtor can defend himself against European enforcement order, order for payment and small claims judgment with legal remedies of national execution law, if he has discharged the debt after the rendering of decision.
 
 Keywords: • cross-border enforcement • European enforcement order • European order for payment • European small claims procedure • international jurisdiction • EU

Small claim, simple recovery? The European small claims procedure and its implementation in the member states

The European Small Claims Procedure is in general an instrument welcome for the enhancement it brings about to cross-border enforcement in the European Union. However, the regulation has several flaws, relating, inter alia, to its lack of consumer friendliness, and the lack of uniform rules regarding appeal and enforcement. It is further submitted that more attention should be paid to proper implementation and interpretation in the member states in order to facilitate the uniform application and the cross-border enforcement of small claims at the European level.

Optional Law: A Plea for Multiple Choice in Private Law

The recent publication of the Green Paper on European contract law by the European Commission (2010) breathes new life into the old plan to develop an optional contract law for the European Union, based on the Draft Common Frame of Reference of European Private Law (DCFR). This editorial praises this initiative. It is also a plea for the introduction of optional law in many more areas than contract law alone. In the prevailing view, the conduct of private actors (such as citizens and firms) is governed by only one law. A view of optional law defends that these actors should be left with a multiple choice among various jurisdictions. This view is elaborated by giving an overview of existing European optional regimes (including the European Company, EEIG, SCE, Community trademark, European enforcement order, European payment order and European small claims procedure) and by asking what advantages optional law can have at both the European and the national level.

Developing Online Dispute Resolution for Consumers in the EU: A Proposal for the Regulation of Accredited Providers

This paper evaluates the development of online dispute resolution (ODR) methods in resolving small value disputes arising out of e-commerce transactions and the need for designing a regulatory model to realise its full potential in the EU. The paper proposes the drafting of a European Regulation in the field of ODR that would set legal standards for mandatory ODR. The proposed Regulation would create a pan-European trustmark that would be granted to those ODR providers that comply with its legal provisions. Compliance would be monitored by the co-operation between national and regional authorities through the European Consumer Centres Network (ECC-Net). The ECC-Net national offices and online businesses would refer national and cross-border disputes to accredited ODR providers. The proposed Regulation would encourage the use of consensual ODR processes as a step previous to the adjudicative processes for all accredited and mandatory ODR. Decisions will be legally binding but appealable, when appropriate, through an online procedure akin to the European Small Claims Procedure.

Individual Private Enforcement of Consumer Rights in Civil Courts in Europe

In many areas, mandatory substantive law protects consumers. At first glance, this seems to indicate that the position of consumers is well-regulated and that consumers are well-protected. The question arises, however, whether consumers may actually make use of their substantive rights. Can consumers enforce their contractual rights through the ordinary courts when their counterpart is not willing to provide them with what they are entitled to receive under the contract they concluded with that counterpart? The focus in this paper is on the consumer’s access to justice through the ordinary court system. Therefore, I will address neither the enforcement of consumer rights through regulatory agencies or by way of collective redress, nor the enforcement of individual consumer rights through ADR institutions. In this paper, I will argue that awarding consumer rights without properly regulating the consumer’s access to the court system renders these rights to be unenforceable through the ordinary court system. It is argued that the normal rules of civil procedure in the national courts produce several disincentives for consumers to maintain their rights that they do so in an insufficient manner, which leads to underenforcement of (European) consumer law. Two fairly recent Europeans regulations - the European payment order procedure and the European small claims procedure - help improve the enforcement of consumer law, but do not take away these disincentives sufficiently.

A Major Step in the Harmonization of Procedural Law in Europe: The European Small Claims Procedure Accomplishments, New Features and Some Fundamental Questions of European Harmonization

textabstractEuropean civil procedural law has been in a constant state of flux since the coming into force of the Treaty of Amsterdam in 1999. The introduction of Article 65 EC Treaty was followed by numerous Community instruments in the field of civil procedure, mostly regulations that have direct binding force in the Member States. These have changed the face of litigation in the European Union.This paper focuses on the recent developments in European procedural law, and more in particular the establishment of the first two harmonized European procedures. The emphasis is on the European Small Claims Procedure, which as a full, adversarial procedure is more substantial than the primarily administrative European Order for Payment Procedure for uncontested claims. First on overview of harmonization of procedural law in Europe after the Treaty of Amsterdam is provided, then the European Small Claims Procedure is analyzed. The final section contains some thoughts on the harmonization of procedural law in Europe. First, the accomplishments and innovative features are discussed. Second, some difficulties and fundamental issues of the harmonization of procedural law in Europe are presented.

Does the Proposed European Procedure Enhance the Resolution of Small Claims?

This paper evaluates the impact which the proposed European Small Claims Procedure (ESCP) may have on the existing domestic Small Claims Procedures (SCPs), with a specific focus on the Irish, English and Spanish SCPs. Firstly, it reviews the present SCPs which are designed to deal with low cost disputes at a national level. Secondly, it considers the proposal for a regulation establishing a European Small Claims Procedure (ESCP). The proposed ESCP is predominantly a written procedure that deals with claims under 2,000 Euros in value arising in cross-border disputes within the EU. It provides enforcement of contested decisions in any of the Member States without the present need of going through the mutual recognition of judgments. The paper suggests that the ESCP in conjunction with Information Communications Technology tools have the potential to realise more efficient enforcement of consumers' rights. However, the optimal effectiveness of this proposal may be hindered by some of its own restrictions. This article advocates that using the ESCP as an optional procedure for domestic disputes will provide a useful instrument in those European Member States which lack SCPs and it will also remove national limitations where SCPs exist. It also argues that including the recognition procedure for uncontested claims will stop those who would intend to delay the enforcement of decisions. This paper suggests that the current economic limit should be raised given that this procedure may not be the best option for low monetary claims. This paper concludes suggesting that the use of online dispute resolution methods, such as online mediation, is a necessary complements to the ESCP and the existing SCPs.

The Commission Proposal for a Regulation Establishing a European Small Claims Procedure: An Analysis

On 15 March 2005 the European Commission adopted a proposal for a Regulation establishing a European Small Claims Procedure. The aim of the proposal is to simplify, speed up and reduce the costs of litigation concerning small claims by establishing a European Small Claims Procedure. The new procedure will be available to litigants as an alternative to the procedures existing under the laws of the Member States. For the first time, citizens and businesses will have a speedy and affordable civil procedure at their disposal which is uniform in all Member States and in all procedural steps from the commencement of the procedure to the enforcement of the judgment. This Article lays out the main features of the Commission proposal.