President. – The next item is the report (A5-0041/2004) by Mr G. Gargani, on behalf of the Committee on Legal Affairs and the Internal Market, on the prospects for approximating civil procedural law in the European Union (COM(2002) 746 – COM(2002) 654 – C5-0201/2003 –2003/2087(INI)).

  Bartolozzi (PPE-DE), deputising for the rapporteur. – (IT) Mr President, Commissioner de Palacio, ladies and gentlemen, the very high and ever-expanding volume of trade within the Union, and movements of persons on a similar scale, are constantly increasing the likelihood that individual citizens or firms might become involved in cross-border litigation. The cases concerned in this instance are those in which the parties are domiciled in different Member States and which, for that reason, pose certain difficulties. The risk in such situations is that the persons involved might refrain from asserting their rights because of the obstacles that they would encounter in going to law in a foreign country, with unfamiliar legislation and procedures, and the costs that they would have to bear. In many cases, moreover, including for example small claims litigation, legal expenses can even exceed the sum at issue. In other words, a genuine internal market is created by the existence of a common legal area, to which private individuals and firms can have access, without being penalised, regardless of the judicial systems of the different Member States.

This is the background which has given rise to the two Green Papers covered by the Commission’s initiative. The first Green Paper deals with the issues of the conversion of the 1980 Rome Convention into a Community instrument and its modernisation. Conversion of the Rome Convention into a Community instrument, as is now being considered, is an additional measure following on from the procedure previously employed for the Brussels Convention and it is certainly useful in that it ensures direct application and uniform interpretation by the Court of Justice. The body of rules should be completed in the future by the Community instrument called Rome II, contained in the recent proposal for a regulation on the law applicable to non-contractual obligations, for which Mrs Wallis is the rapporteur.

The need to form the three instruments into a single whole is plain to see and implies not only that the Rome Convention should rapidly be converted into a Community instrument by adopting the necessary regulation, thus making the body of private international law rules homogeneous in terms of source, but also that the goal at a later stage should be codification in the true sense so as to enable the ‘Communitarised’ provisions of Brussels I, Rome I, and Rome II to be grouped together systematically.

As for the innovations to be incorporated into the Convention of Rome, first of all we could introduce the principle to ensure that, when the law of a third country was chosen, the primacy of mandatory Community law rules, for instance to protect the weaker party (employees, consumers), would at all events be guaranteed.

Furthermore, the scope of the Convention rules should be extended to include insurance contracts, and the provisions on consumer and employment contracts and electronic commerce transactions need to be clarified in some respects to enable them to be coordinated with Community legislation in force.

The second Green Paper presented by the Commission, on establishing a European order for payment procedure and on measures to simplify and speed up small claims litigation, is also of the utmost significance. It is a matter of no little importance for many European citizens and firms, in particular SMEs, to be sure that they can recover claims, and do so rapidly, especially when litigation has cross-border implications because the debtor is domiciled in a foreign country or the judgment has to be enforced abroad.

The added value of procedures to achieve that end, which would have to be laid down under a Community regulation for the reasons already set out regarding the Rome Convention, would lie in the fact that judgments would be enforceable throughout the Union without resorting to exequatur, thus making it possible to recover huge quantities of uncontested claims or settle cases in which creditors would otherwise be fundamentally disinclined to proceed.

The regulation will also need to define the entire order for payment procedure, specifying the requirements applicable to creditors’ claims so as to establish a common measure affording certainty as to procedure and, where possible, costs. Some further comments should be made about the European order for payment. The first question to answer is whether the procedure should be confined to cross-border cases or could also be applied to litigation between parties domiciled in the same country. Bearing in mind that not all Member States have a special procedure of this type in their procedural law and those procedures that do exist differ substantially, it would be desirable, in order to avoid unequal treatment of creditors in different categories, for parties to have the option of using the order in domestic litigation as well.

  De Palacio, Vice-President of the Commission. (ES) Mr President, ladies and gentlemen, I would firstly like to say that the Commission is very pleased with the European Parliament’s support for the creation of a European order for payment procedure. Parliament’s suggestions on the special characteristics of this process – which we are truly very grateful for – will be taken into account in the preparatory work prior to the adoption of a regulation creating a European enforcement order in the very near future.

I am pleased to see that we also agree on the idea that the order for payment procedure should not replace or harmonise national procedural law, but that it should be an alternative and optional instrument, and that, furthermore, it should be exclusively applied to pecuniary claims regardless of whether they relate to contractual obligations or non-contractual obligations, and regardless of their value.

I would also like to point out that we agree with the opinion that there is no justification for establishing separate rules on jurisdictional competence which differ from those laid down in Regulation (EC) No 44/2001 (‘Brussels I’) and we agree with the emphasis placed on the appropriate protection of rights to defence.

The Commission also agrees that the direct enforceability of the judgments issued in this procedure should be achieved by means of the future regulation creating a European enforcement order for uncontested debts.

These shared convictions will be fully satisfied in the coming proposal for a regulation although there are other issues on which Parliament does not appear to have made a definite proposal, but rather maintains a more open approach: as in the case of the choice of a model of a single stage based on evidence or a model of two stages without evidence.

In any event, with a view to creating a truly uniform European procedure, the Commission will have to take a decision and I expect that it will opt for a procedure which does not require the presentation of written evidence.

The Commission would find it unfortunate if, unlike in other cases – such as the Directive on free legal aid for example – Parliament did not support a broad scope, which also addressed national situations, and simply advocated a more restrictive approach.

We would like to thank the Committee on Legal Affairs and the Internal Market and its rapporteur for their comments on the Green Paper on the future Community instrument for small-claims litigation.

We must also say that we intend to present – around October of this year – a proposal for a Community instrument with a broad scope, a proposal which will be preceded by extensive consultation, both of the Member States and of all the parties involved. Its objective will be to simplify and speed up small-claims litigation, and in this regard we expect that it will consist of two elements: the first of them will create a European small-claims procedure, which will be an optional instrument to supplement the existing possibilities in the various States; and the second will replace the intermediate measures – the ‘exequatur’ – in order to allow for the recognition and implementation in other States of the judgments issued in a European small-claims procedure.

I would like to thank the Committee on Legal Affairs and its rapporteur for their support for the Commission’s initiative on the conversion of the 1980 Rome Convention on the law applicable to contractual obligations into a Community instrument in order to guarantee that it is interpreted coherently and to speed up its entry into force in the new States.

When we draw up the proposal relating to this instrument, we will certainly consider carefully the extremely valuable comments which appear in the report on various issues of a more technical nature and, as I have said, following the broad consultation process we have launched by means of the Green Paper, it should be possible to adopt a proposal for a Regulation in 2005.

  Medina Ortega (PSE). – (ES) Mr President, this is not a legislative procedure but a consultation procedure, a preliminary phase, and I would point out that Parliament is not acting as a legislative body, but as a representative of European civil society and there is probably no other institution which represents European civil society as faithfully as we do, since we are elected by the citizens.

The Commission’s proposals are good ideas. We are at the Green Paper phase, we hope that the Commission will present its proposals soon and, above all, I would like to welcome the fact that the Commission is now taking up one of the main proposals contained in Parliament’s recommendations: recourse to the Regulation, which is the most appropriate procedure for adopting these rules. We cannot leave them in the hands of a Directive, because that would give the national authorities too much leeway and could lead to confusion when it comes to applying the rules.

Secondly, I believe there is a very important idea in the Gargani report: the idea of the importance of codification. This idea is reflected in the recent interinstitutional agreement, concluded between the European Parliament, the Council and the Commission: as far as possible, as we go on adopting legal rules, we must codify them, so that we do not find later that we have a series of regulations, directives, decisions etc., which bear no relation to each other. We are now beginning to acquire a substantial set of rules on cooperation in the field of private law and the ideal thing would be to be able to bring them together in a codified text, and we could also consider a type of permanent codification, that is, that each new rule should be integrated with others with a view to achieving the greatest possible coherence in the legislative text.

This is not of course the time to make recommendations to the Commission on this issue, but there is an opportunity to do so and, therefore, we should try to achieve it and try to have it adopted.

In conclusion, I believe that Parliament and the Commission are cooperating well in the initial phase; I believe that the proposals the Commission will make to this Parliament from October will be well received and we will be able to work to the benefit of the citizens so that Community law is as harmonised and coherent as possible, to the benefit, as Mr Bartolozzi said earlier, of small companies and ordinary citizens, who expect more from the European Union than a mere mechanism for international diplomatic cooperation.

  MacCormick (Verts/ALE). – Mr President, it is a pleasure to address you tonight on this important theme. This afternoon I had the fortune to chair a meeting in which we were discussing the proposed directive on the enforcement of intellectual property rights. In that discussion, what came out most clearly was that the biggest difference among the legal systems of the European Union is actually the difference concerning procedure, rather than the substance of law. Proposals for the approximation of procedural law are amongst the most difficult to achieve effectively. That is something that we need to bear in mind.

As you well know, I represent an area of Scotland in this House. We, in Scotland, have the unique good fortune of having a legal system that is more or less half and half, i.e. an amalgam of the civilian systems of mainland Europe and the common law system of England, Ireland and Northern Ireland. Perhaps the Commissioner should devote her time to studying Scots procedural law as a potential bridge between the two great different systems of this continent. However that may be, in my Group we certainly support the idea of moving from conventions to regulation. Mr Medina Ortega is entirely right to say that the regulation is the right instrument to deal with these problems of harmonisation.

Finally, in relation to small claims, all that is in the Gargani report is admirable. However, I should particularly like to underline, in regard to the service of documents, paragraph 6(i) that states: 'service should effected by specialised personnel with legal training capable of explaining every aspect of the procedure to the debtor'. Much of what we have done in the way of harmonisation is defeated at the moment by bad translation, lack of interpretation and lack of clarity. I beg to support that point.

  President. – The debate is closed.

The vote will take place tomorrow at 12 noon.