Procedure : 2013/0403(COD)
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Document selected : A8-0140/2015

Texts tabled :

A8-0140/2015

Debates :

PV 06/10/2015 - 14
CRE 06/10/2015 - 14

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Texts adopted :

P8_TA(2015)0338

REPORT     ***I
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23 April 2015
PE 539.630v02-00 A8-0140/2015

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 861/2007 of the European Parliament and the Council of 11 July 2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure

(COM(2013)0794 – C7-0414/2013 – 2013/0403(COD))

Committee on Legal Affairs

Rapporteur: Lidia Joanna Geringer de Oedenberg

AMENDMENTS
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 861/2007 of the European Parliament and the Council of 11 July 2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure

(COM(2013)0794 – C7-0414/2013 – 2013/0403(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–       having regard to the Commission proposal to Parliament and the Council (COM(2013) 0794),

–       having regard to Article 294(2) and Article 81 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0414/2013),

–       having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–       having regard to Rule 59 of its Rules of Procedure,

–       having regard to the report of the Committee on Legal Affairs (A8-0140/2015),

1.      Adopts its position at first reading hereinafter set out;

2.      Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.      Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment  1

Proposal for a regulation

Article 1 – point -1

Regulation (EC) No 861/2007

Title

 

Text proposed by the Commission

Amendment

 

(-1) The title of the Regulation is amended as follows:

Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European establishing a European Small Claims Procedure

Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Simplified Procedure for Claims of up to EUR 10 000

 

(This amendment will lead to consequential amendments throughout the text of Regulation (EC) No 861/2007.)

Amendment  2

Proposal for a regulation

Recital 5

 

Text proposed by the Commission

Amendment

(5) Increasing the threshold up to EUR 10,000 would be particularly beneficial for small and medium enterprises, which are currently discouraged from considering court action because under national ordinary or simplified procedures the costs of litigation are disproportionate to the value of the claim and/or the judicial proceedings are too lengthy. Raising the threshold would improve access to an effective and cost efficient judicial remedy for cross-border disputes involving Small and Medium Enterprises. Increased access to justice would enhance the trust in cross-border transactions and contribute to the fullest use of the opportunities offered by the internal market.

(5) Increasing the threshold so as to cover all claims against legal persons up to EUR 10,000 would be particularly beneficial for small and medium enterprises, which are currently discouraged from considering court action because under national ordinary or simplified procedures the costs of litigation are disproportionate to the value of the claim and/or the judicial proceedings are too lengthy. Raising the threshold would improve access to an effective and cost efficient judicial remedy for cross-border disputes involving Small and Medium Enterprises. Increased access to justice would enhance the trust in cross-border transactions and contribute to the fullest use of the opportunities offered by the internal market. For the purposes of this regulation, a claim should be considered as being pursued against a legal person if at least one of the defendants is a legal person recognised as such by the law of a Member State or third state, other than an individual acting in his own name. Claims pursued against individuals acting in their own name should be covered only if they amount to less than EUR 5 000.

Amendment  3

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8) The European Small Claims Procedure could be further improved by taking advantage of the technological developments in the field of justice which eliminate geographical distance and its consequences in terms of high costs and length of proceedings as factors discouraging access to justice.

(8) The European Simplified Procedure could be further improved by taking advantage of the technological developments in the field of justice which should eliminate geographical distance and its consequences in terms of high costs and length of proceedings as factors discouraging access to justice.

Amendment  4

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12) Oral hearings as well as taking of evidence by means of hearings of witnesses, experts or parties, should be carried out by distance means of communication. This should not affect the right of a party to the proceedings to appear in court for the oral hearing. In the context of oral hearings and the taking of evidence, the Member States should use modern, distance means of communication enabling persons to be heard without the need to travel to the court or tribunal. Where the person heard is domiciled in a Member State other than the Member State where the court seised is located, oral hearings should be organised in accordance with the rules set out in Council Regulation (EC) No 1206/200117. Where the party to be heard is domiciled in the Member State where the court or tribunal with jurisdiction is located or in a third country, an oral hearing may be held through videoconference, teleconference or other appropriate distance communication technology in accordance with national law. A party should always be entitled to appear in court at an oral hearing if that party so requests. The court or tribunal should use the simplest and least costly method of taking evidence.

(12) Oral hearings as well as taking of evidence by means of hearings of witnesses, experts or parties, should be carried out by distance means of communication. This should not affect the right of a party to the proceedings to appear in court for the oral hearing. In the context of oral hearings and the taking of evidence, the Member States should use modern, distance means of communication enabling persons to be heard without the need to travel to the court or tribunal. Where the person heard is domiciled in a Member State other than the Member State where the court seised is located, oral hearings should be organised in accordance with the rules set out in Council Regulation (EC) No 1206/200117. Where the party to be heard is domiciled in the Member State where the court or tribunal with jurisdiction is located or in a third country, an oral hearing may be held through videoconference, teleconference or other appropriate distance communication technology in accordance with national law. A party so requesting should always have the right to appear and be heard or have a witness appear and be heard before the court or tribunal. The court or tribunal should use the simplest and least costly method of taking evidence.

__________________

__________________

17 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).

17 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).

Justification

When witnesses are heard, the directness and oral nature of proceedings is a principle that must be respected.

Amendment  5

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13) The potential costs of litigation may play a role in the claimant's decision to consider court action. Among other costs, court fees may discourage claimants from taking court action, in particular in those Member States where court fees are disproportionate. The court fees should be proportionate to the value of the claim in order to ensure access to justice for cross-border small claims. This Regulation does not aim at harmonising court fees; instead, it puts in place a maximum limit on court fees which would make the procedure accessible to a significant proportion of claimants, while at the same time allowing Member States wide discretion in choosing the method of calculation and the amount of court fees.

(13) The potential costs of litigation are one of the basic factors influencing the claimant’s decision to consider court action. Among other costs, court fees may discourage claimants from taking court action, in particular in those Member States where court fees are disproportionate. The court fees should be established at a level which does not exceed the fees charged for equivalent procedures which are domestic in nature. It is expected that fees charged at an equal or lower level will encourage use of the European Simplified Procedure, in part by positioning it as a cost-effective and comparable instrument to more familiar domestic procedures. In Member States where domestic procedures do not exist, court fees should be established at a level which is not disproportionate to the value of the claim.

Amendment  6

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14) The payment of court fees should not require the claimant to travel or hire a lawyer for this purpose. As a minimum, bank transfers and credit or debit card on-line payment systems should be accepted by all courts and tribunals with jurisdiction in European Small Claims Procedures.

(14) The payment of court fees should not require the claimant to travel or hire a lawyer for this purpose. As a minimum, bank transfers, credit or debit card on-line payment systems or other types of distance payment methods should be accepted by all courts and tribunals with jurisdiction in European Simplified Procedures.

Amendment  7

Proposal for a regulation

Article 1 – point 1

Regulation (EC) No 861/2007

Article 2 – paragraph 1

 

Text proposed by the Commission

Amendment

1. This Regulation shall apply to civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim does not exceed EUR 10,000 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).

1. This Regulation shall apply to civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim is up to EUR 10,000 if pursued against a legal person or less than EUR 5,000 if pursued against a natural person 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).

Amendment  8

Proposal for a regulation

Article 1 – point 1

Regulation (EC) No 861/2007

Article 2 – paragraph 2

 

Text proposed by the Commission

Amendment

2. This Regulation shall not apply where, at the time when the claim form is received by the court or tribunal with jurisdiction, all of the following elements, where relevant, are in a single Member State:

deleted

(a) the domicile or habitual residence of the parties;

 

(b) the place of performance of the contract;

 

(c) the place where the facts on which the claim is based arose;

 

(d) the place of enforcement of the judgment;

 

(e) the court or tribunal with jurisdiction.

 

Domicile shall be determined in accordance with [Articles 59 and 60 of Regulation (EC) No 44/2001]/[Article 62 and 63 of Regulation (EU) No 1215/2012].

 

Amendment  9

Proposal for a regulation

Article 1 – point 1

Regulation (EC) No 861/2007

Article 2 – paragraph 3 – point f

 

Text proposed by the Commission

Amendment

(f) employment law;

deleted

Amendment  10

Proposal for a regulation

Article 1 – point 1

Regulation (EC) No 861/2007

Article 2 – paragraph 3 – point h

 

Text proposed by the Commission

Amendment

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

deleted

Justification

As rights relating to personality are no longer excluded from the scope of the Brussels I Regulation, this exception should also no longer apply to the small claims procedure.

Amendment  11

Proposal for a regulation

Article 1 – point 2

Regulation (EC) No 861/2007

Article 3

 

Text proposed by the Commission

Amendment

Article 3 is deleted.

deleted

Amendment  12

Proposal for a regulation

Article 1 – point 3 – point a

Regulation (EC) No 861/2007

Article 4 – paragraph 4 – second subparagraph

 

Text proposed by the Commission

Amendment

The court shall inform the claimant of such dismissal.

The court which ruled on the substance of the claim shall inform the claimant of such dismissal and of the possible means of appealing against the decision taken.

Justification

The court which ruled on the claim should inform the claimant of the possible means of appealing against the decision taken. This means of appeal should be established by each Member State in accordance with its applicable national law.

Amendment  13

Proposal for a regulation

Article 1 – point 3 – point b

Regulation (EC) No 861/2007

Article 4 – paragraph 5

 

Text proposed by the Commission

Amendment

5. Member States shall ensure that the standard claim Form A is available in paper form at all courts and tribunals at which the European Small Claims Procedure can be commenced, as well as in electronic form on the websites of those courts or of the relevant central authority.

5. Member States shall ensure that all courts and tribunals at which the European Simplified Procedure can be commenced meet their obligation to provide citizens, through the competent services, with the standard claim Form A in paper form, and that it is available at all courts and tribunals at which the European Simplified Procedure can be commenced, as well as in electronic form on the websites of those courts or of the relevant central authority.

Justification

Applying the text of the regulation as proposed could pose some problems, in particular as regards making standard claim Form A available to citizens in paper form. In Romania, for example, a clear obligation needs to be laid down for the courts to make standard claim Form A available to citizens in paper form through the registry, since the Romanian courts have not yet adopted this working method and citizens are not provided with standard claims, forms, model applications to the court, etc. in paper form.

Amendment  14

Proposal for a regulation

Article 1 – point 4

Regulation (EC) No 861/2007

Article 5 – paragraph 1 – second subparagraph – point b

 

Text proposed by the Commission

Amendment

(b) both parties indicate their willingness to conclude a court settlement and request a court hearing for that purpose.

(b) both parties indicate their willingness to conclude a court settlement and a settlement cannot be reached by correspondence.

Justification

Court hearings should not be mandatory for court settlements. They should only take place if required.

Amendment  15

Proposal for a regulation

Article 1 – point 5

Regulation (EC) No 861/2007

Article 8

 

Text proposed by the Commission

Amendment

1. An oral hearing shall be held through videoconference, teleconference or other appropriate distance communication technology in accordance with Council Regulation (EC) No 1206/2001 where the party to be heard is domiciled in a Member State other than the Member State of the court or tribunal with jurisdiction.

1. From [3 years after the entry into force of this Regulation], any oral hearing shall be held through videoconference, teleconference or other appropriate distance communication technology in accordance with Council Regulation (EC) No 1206/2001 where the party to be heard is domiciled in a Member State other than the Member State of the court or tribunal with jurisdiction.

 

1a. Member States shall ensure that the relevant courts and tribunals are equipped with appropriate distance communication technology.

2. A party shall always be entitled to appear before the court or tribunal and be heard in person if that party so requests."

2. A party shall always be entitled to appear before the court or tribunal and be heard in person if that party so requests."

Amendment  16

Proposal for a regulation

Article 1 – point 6

Regulation (EC) No 861/2007

Article 9 – paragraph 2 a (new)

 

Text proposed by the Commission

Amendment

 

2a.  The court or tribunal shall allow the parties to address questions to the witnesses heard in writing, where it considers this necessary in order to reach a fair settlement of the claim. The court or tribunal shall forward the questions put by the parties to the witnesses, and shall inform them of the deadline by which the witnesses are obliged to provide a written answer to the parties and forward their answer to the court or tribunal.

Amendment  17

Proposal for a regulation

Article 1 – point 6

Regulation (EC) No 861/2007

Article 9 – paragraph 2 b (new)

 

Text proposed by the Commission

Amendment

 

2b. The expert who is to be heard pursuant to paragraph 2a shall be appointed by the court or tribunal.

Justification

The procedure for appointing the expert should be specified in the text of the regulation. The text should also state whether the parties are entitled to have their own expert and whether they have the possibility of putting questions to the expert. As regards the possibility for the parties to address questions to the witnesses in writing, this right should be regulated with the aim of ensuring that the parties’ right of defence is respected and a fair settlement of the claim is reached.

Amendment  18

Proposal for a regulation

Article 1 – point 7

Regulation (EC) No 861/2007

Article 11 – paragraph 1

 

Text proposed by the Commission

Amendment

1. The Member States shall ensure that the parties can receive practical assistance in filling in the forms. Such assistance shall in particular be available for determining whether the procedure may be used to resolve the dispute concerned and for determining the court with jurisdiction, for calculating interest due and for identifying the documents which need to be attached.

1. The Member States shall ensure that the parties can receive practical assistance in filling in the forms. Such assistance shall be provided free of charge and shall in particular be available for determining whether the procedure may be used to resolve the dispute concerned and for determining the court with jurisdiction, for calculating interest due and for identifying the documents which need to be attached.

Amendment  19

Proposal for a regulation

Article 1 – point 8

Regulation (EC) No 861/2007

Article 13 – paragraph 1

 

Text proposed by the Commission

Amendment

1. The documents mentioned in Article 5(2) and 7(2) shall be served by postal or by electronic means attested by an acknowledgment of receipt including the date of receipt. Documents shall be served electronically only on a party who expressly accepted in advance that documents may be served electronically. Service by electronic means can be attested by an automatic confirmation of delivery.

1. The documents mentioned in Article 5(2) and 7(2) shall be served by postal or by electronic means attested by an acknowledgment of receipt including the date of receipt. The means of service shall be such that abuse is avoided and confidentiality guaranteed. Documents shall be served electronically only on a party who expressly accepted in advance that documents may be served electronically. Service by electronic means can also be attested by an automatic confirmation of delivery.

Amendment  20

Proposal for a regulation

Article 1 – point 8

Regulation (EC) No 861/2007

Article 13 – paragraph 2

 

Text proposed by the Commission

Amendment

All written communications not referred to in paragraph 1 between the court or tribunal and the parties shall be carried out by electronic means attested by an acknowledgment of receipt, where such means are acceptable in procedures under national law and only where the party accepts such means of communication.

All written communications not referred to in paragraph 1 between the court or tribunal and the parties shall be carried out by electronic means attested by an acknowledgment of receipt, where such means are acceptable in procedures under national law.

Justification

Reference to national law is sufficient here. There should be no extra requirement at European level to require the parties' consent if it does not exist at national level.

Amendment  21

Proposal for a regulation

Article 1 – point 9

Regulation (EC) No 861/2007

Article 15a – paragraph 1

 

Text proposed by the Commission

Amendment

1. The court fee charged for a European Small Claims Procedure shall not exceed 10% of the value of the claim, excluding all interest, expenses and disbursements. If Member States charge a minimum court fee for a European Small Claims Procedure, that fee shall not exceed EUR 35 at the time when the claim form is received by the court or tribunal with jurisdiction.

1. The court fee charged for a European Simplified Procedure shall not exceed 5% of the value of the claim, excluding all interest, expenses and disbursements. If Member States charge a minimum court fee for a European Small Claims Procedure, that fee shall not exceed EUR 35 at the time when the claim form is received by the court or tribunal with jurisdiction.

Justification

The proposed percentage of 10% of the value of the claim is too high. It would be more appropriate to set stamp duty at 5% of the value of the claim (or even 3%). In the case of a claim with a maximum value of EUR 10 000, the stamp duty would thus stand at EUR 500, or around RON 2 217.35.

Amendment  22

Proposal for a regulation

Article 1 – point 9

Regulation (EC) No 861/2007

Article 15 a – paragraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

1a. Each Member State shall set a minimum income threshold under which a party shall not be required to pay any court fees.

Justification

Parties whose income is very low should not be required to pay court fees. However, it is not appropriate to set a single, Europe-wide figure for this as minimum wages and the cost of living vary across the Member States. Each Member States should therefore set its own threshold, preferably by reference to the national minimum wage.

Amendment  23

Proposal for a regulation

Article 1 – point 9

Regulation (EC) No 861/2007

Article 15a – paragraph 2

 

Text proposed by the Commission

Amendment

The Member States shall ensure that the parties can pay the court fees by means of distance payment methods, including bank transfer and credit or debit card on-line payment system.

The Member States shall ensure that the parties can pay the court fees by means of distance payment methods, including bank transfer or credit or debit card on-line payment system.

Justification

It is important that court fees should be payable from a distance, so as not to require travel for the sole purpose of payment. However, Member States should not be required to provide more than one method of distance payment.

Amendment  24

Proposal for a regulation

Article 1 – point 16

Regulation (EC) No 861/2007

Article 28 – first paragraph

 

Text proposed by the Commission

Amendment

By [5 years after the date of application], 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. The report shall be accompanied, if appropriate, by legislative proposals.

By [5 years after the date of application], 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. The report shall be accompanied, if appropriate, by legislative proposals. An interim report shall be prepared by [2 years after the date of application] which shall examine the dissemination of information about the European Simplified Procedure in the Member States, and may produce recommendations concerning how to improve the public awareness of this instrument.

Amendment  25

Proposal for a regulation

Article 2 a (new)

Regulation (EC) No 1896/2006

Article 20

 

Text proposed by the Commission

Amendment

 

Article 2 a

 

Article 20 of Regulation (EC) No 1896/2006 is replaced by the following:

 

"Article 20

 

Minimum standards for review of the judgment

 

1. After expiry of the time limit laid down in Article 16(2), the defendant shall be entitled to apply for a review of the European order for payment before the court or tribunal with jurisdiction of the Member State where the order was issued, if:

 

(a) the order for payment was not served in sufficient time and in such a way as to enable him to arrange for his defence; 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.

 

However, the entitlement to apply for a review as provided for in the first subparagraph shall not apply where the defendant failed to challenge the judgment when it was possible for him to do so.

 

2 After expiry of the time limit laid down in Article 16(2), the defendant shall also be entitled to apply for a review of the European order for payment before the competent court in the Member State of origin, in the event that the order for payment was clearly wrongly issued, having regard to the requirements laid down in this Regulation, or due to other exceptional circumstances.

 

3. 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 order and was able to react, or at the latest from the date of the first enforcement measure having the effect of making property of the defendant non-disposable in whole or in part. No extension of the time limit may be granted on account of distance.

 

4. If the court rejects the application for a review referred to in paragraph 1 or 2 on the basis that none of the grounds for a review set out in those paragraphs apply, the European order for payment shall remain in force.

 

If the court decides that a review is justified for one of the reasons laid down in paragraph 1 or 2, the European order for payment shall be deemed null and void. However, the creditor shall not lose the benefit of the interruption of prescription or limitation periods."

Justification

Article 18 of the Regulation 861/2007 will be amended in a manner consistent with corresponding provision of Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, to bring more clarity and facilitate its application in practice. As there is no reason why these provisions on review, which pursue exactly the same objective, are formulated differently in the various European regulations it is opportune to amend also corresponding Article 20 of Regulation (EC) No 1896/2006.

Amendment  26

Proposal for a regulation

Article 3 – second paragraph

 

Text proposed by the Commission

Amendment

It shall apply from [6 months after the entry into force of the Regulation].

It shall apply from [12 months after the entry into force of the Regulation], with the exception of points 13 to 15 of Article 1, which shall apply from the date of entry into force.

Justification

As the articles mentioned create obligations for the Member States which are to be fulfilled by the date of application of the changes, and allow the Commission to adopt the required forms by delegation, those articles themselves must become applicable earlier.


EXPLANATORY STATEMENT

I. Introduction

Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure is intended to simplify and speed up litigation concerning small claims in cross-border cases, and to reduce costs. It was designed specifically to help consumers and small and medium-sized enterprises (SMEs) enforce their claims, thus ensuring access to justice. Your rapporteur fully subscribes to this objective.

Stock having been taken following five years of application, the European Small Claims Procedure has proven to be a useful tool. However, there is still much room to broaden and enhance its take-up, something which was highlighted in the Commission’s application report of November 2013. The European Small Claims Procedure has reduced the costs of litigating cross-border small claims by up to 40 % and has cut the duration of litigation from up to two years and five months to an average of five months. On the other hand, the number of applications differs greatly between the Member States, ranging from just 3 applications in Bulgaria to 1047 applications in Spain for 2012.

Parliament noted in its resolution of 25 October 2011 that ‘the usage of small claims tribunals in some Member States remains significantly low and that more needs to be done in terms of legal certainty, language barriers and transparency of proceedings’. There is reason to be concerned about each small claim which is not pursued due to reluctance or a lack of awareness of the options available on the part of the potential claimant. This could seriously damage trust in the internal market, in particular with respect to its cross border scope and opportunities for online trading.

II. The Commission's proposal

II A. The scope

The Commission proposes to raise the threshold for small claims which fall under the European Small Claims Procedure from the current amount of EUR 2 000 to EUR 10 000. It considers this new threshold to be less important for consumers, given that most of their claims do not exceed EUR 2 000, but deems it to be a considerable improvement for SMEs. According to the Commission’s findings, only 20 % of business claims are valued at less than EUR 2 000, whereas about 30 % of such claims are valued between EUR 2 000 and EUR 10 000. This means that, while the current threshold only covers 20 % of all business claims, a new threshold of EUR 10 000 would increase this share to about 50 %.

The Commission further proposes to extend the definition of what constitutes a cross border case, and thus falls under the scope of the regulation. The current regulation applies only if ‘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 seized’. The Commission proposes, henceforth, to include also cases in which both parties are domiciled in the same Member State, but which contain another cross-border element, such as place of performance of the contract, place of occurrence of the harmful event, or enforcement of the judgment in another Member State.

II B. The procedure

A Commission survey has shown that 45 % of companies involved in a cross-border dispute do not go to court, owing to the disproportionate costs of court proceedings in relation to the value of the claim, while 27 % do not go to court because the court procedure would take too long. In order to make the European Small Claims Procedure more successful, the Commission proposes to reduce further the costs and duration of the procedure.

The current regulation allows for the initial application to be sent by email if the Member State in which the procedure is initiated deems this acceptable (Article 4(1)). Throughout the procedure, service by post with acknowledgment of receipt is provided for first of all under Article 13, while service by other means, including electronic service, is allowed only if such postal service is not possible. In practice, this means that in many Member States all communications between the parties and the court are currently carried out by post.

The Commission now proposes to put postal and electronic service for documents on an equal footing, provided that a party has expressly accepted in advance that documents may be served electronically.

Given that the European Small Claims Procedure is, in principle, a written procedure, oral hearings are only held in exceptional circumstances. According to the current regulation the court ‘may hold an oral hearing through video conference [...] if the technical means are available’. This is to say that, should the technical means not be available, persons summoned for an oral hearing would be required to travel to the court, possibly in another Member State. The current regulation contains no incentive or obligation for Member States to provide these technical means.

The Commission proposes, as a rule, that oral hearings be held in future by distance communication, unless a party requests to appear before the court and be heard in person.

II C. The costs

At present, the court fees charged in Member States for cases brought under European Small Claims Procedures vary considerably, from no court fees to a share of up to 57 %. As a rule, the court fees are levied upfront when an application is lodged, and the claimant may hope to recover them eventually only if the claim is successful (the ‘loser pays’ principle). The Commission proposes to set a maximum cap on court fees of 10 % of the value of the claim, as it would further open up access to justice. The Commission also proposes to provide for a maximum amount of EUR 35 in minimum court fees.

Lastly, given that in a number of Member States the payment of court fees is required in the form of cash or stamps, parties must either travel to pay the fees or hire a lawyer in the Member State of the court, with both alternatives generating costs and potentially discouraging parties from pursuing their claim. The Commission therefore aims to oblige Member States to provide a means of distance payment for court fees.

Under the current regulation, the party seeking enforcement must produce an original copy of the judgment and of form D, which is the certificate relating to the judgment. The Commission has observed that the whole form is usually translated, at a cost, into the language of the Member State seeking enforcement.

The Commission now proposes that a translation of only section 4.3 of the form (relating to the substance of the judgment) be required.

III. The rapporteur's assessment

III A. The scope

Your rapporteur welcomes the raising of the threshold for use of the European Small Claims Procedure. By making the simplified procedure available also for cross-border claims valued between EUR 2 000 and EUR 10 000, the share of cases eligible for a considerable reduction in costs and length of litigation is increased.

Your rapporteur feels that this change will further increase the number of cases in which businesses and consumers could make welcome savings. The threshold for a small claim needs to remain at a level that is lower than the amount of an average claim, so that the necessary procedural guarantees for larger claims are ensured. It should also not be forgotten that increasing the use of the procedure by raising the threshold will make the procedure part of day-to-day court business. This will make it easier for potential users, in particular consumers, to access the necessary information. However, raising the threshold beyond EUR 10 000 does not seem feasible at this stage, so your rapporteur supports the figure proposed by the Commission.

III B. The procedure

The holding of oral hearings by videoconference is a timely proposal for modernisation. The need to travel to an oral hearing and pay travel costs can constitute a significant burden in cross-border cases. In a Commission survey on the European Small Claims Procedure , one in three respondents indicated that they would be more inclined to file a claim if the procedures could be completed at a distance, i.e. that there was no need to go to court in person.

It is to be noted that the relevant rooms and equipment would have to be provided and maintained by the courts. Such infrastructure is frequently inexistent and the funds to create it are scarce in these times of economic crisis. Your rapporteur therefore feels that the Member States should be given a further two years in order to ensure that such infrastructure is available where required across Europe.

On the subject of oral hearings, your rapporteur also feels that the court needs to have greater discretion to refuse a request for an oral hearing where it is not required by the facts of the case.

Your rapporteur supports the proposal where it seeks to encourage the use of information technology. Evidence shows that insufficient use of information technology discourages citizens from using the European Small Claims Procedure. One fifth of respondents indicated in a Commission survey that they would be more inclined to use the procedure if all proceedings could be carried out online. However, the electronic communication system in place must work impeccably and provide the same procedural security as postal service, e.g. as regards the acknowledgement of receipt.

The provisions on the use of information technology should therefore be strengthened, but without unduly affecting national procedures.

III C. The costs

Your rapporteur considers that costs of EUR 1 000 which could be levied for a EUR 10 000 claim under the new rule are still rather high. However, this still largely remains a matter for the Member States.

The Commission’s proposal to provide for a maximum amount of EUR 35 in minimum court fees seems reasonable, given that it has identified the average minimum court fee for a claim of EUR 200 as EUR 34, and that for a claim of EUR 500 as EUR 44. Furthermore, your rapporteur believes that parties on low incomes should be benefit from a waiver. Reference might be had to the national minimum wage in order to set a threshold for such a fee waiver in each Member States.

Your rapporteur welcomes the Commission’s proposal to oblige Member States to put in place means of distance payment, including bank transfers and online credit or debit card payment systems. This would allow claimants to save on payment costs, which have been identified by the Commission as ranging between EUR 400 and EUR 800 where travel is required. Where a claim has been satisfactorily dealt with at a distance, it would be ridiculous to make the parties travel in order to pay fees. In order to allow citizens to benefit from these savings, the enforcement of this requirement will warrant specific attention. At the same time, your rapporteur feels that the Member States' court administrations should not have to provide several means of distance payment; one is sufficient.

The change to the translation requirement is a good thing, as it will deliver savings in money and time. According to the figures published by the Commission, the average translation costs for form D are EUR 60, but these could be reduced to EUR 40 if section 4.3 only was translated. This does not create any comprehension problem as all fields of the form other than section 4.3 are already available in all official languages in the text of the regulation. The option of providing the forms in electronic format should also be explored in order to further facilitate the procedure.

IV. Awareness and guidance

The European Small Claims Procedure can be successful only if consumers and businesses, courts, and associations providing advice are aware of it. Evidence quoted by the Commission shows that 86 % of citizens and almost half of the courts have never heard of the procedure. It is therefore crucial that the Commission continue its efforts to provide information on the European Small Claims Procedure, in particular via the e-Justice Portal. It is equally important that the Member States complement the Commission’s efforts through national awareness-raising campaigns.

Furthermore, consumers and businesses need very concrete information on how to use the procedure in practice and what it would cost. It therefore makes sense for the Member States to provide information on court fees and methods of payment for the European Small Claims Procedure. The Commission will publish this information on the internet, which will allow consumers and businesses to make an informed decision.

Consumers and SMEs may need practical assistance in filling out the forms for the procedure. In this connection, the Commission’s proposal for practical assistance is most useful. However, such assistance can help only if it is targeted, practical and specific. It might be useful to explore the possibilities of online guidance, while bearing in mind that individual, personal advice will also be necessary. Assistance may also be of benefit at the enforcement stage.

V. Conclusion

All in all, your rapporteur is very favourably disposed towards the changes proposed by the Commission. She believes that the changes proposed in this draft report would further improve the functioning of the Small Claims Procedure, and looks forward to the ideas of other Members to be tabled in the form of amendments.

The proposal as it stands would enter into force on the twentieth day following that of its publication. It would apply from six months after that. Your rapporteur proposes that the legislative delegation to the Commission for the required forms, and the obligation for Member States to provide certain information should apply from the day of entry into force, as this would ensure that the framework is in place on the date the substantive changes apply.

Furthermore, your rapporteur would allow for an additional period of three years from the date of entry into force for Member States to ensure that the relevant equipment is available in courtrooms before it becomes mandatory to hold oral hearings by videoconference.


PROCEDURE

Title

European Small Claims Procedure and European order for payment procedure

References

COM(2013)0794 – C7-0414/2013 – 2013/0403(COD)

Date submitted to Parliament

19.11.2013

 

 

 

Committee responsible

       Date announced in plenary

JURI

9.12.2013

 

 

 

Committees asked for opinions

       Date announced in plenary

ITRE

9.12.2013

IMCO

9.12.2013

LIBE

9.12.2013

 

Not delivering opinions

       Date of decision

ITRE

27.11.2013

IMCO

24.9.2014

LIBE

5.12.2013

 

Rapporteurs

       Date appointed

Lidia Joanna Geringer de Oedenberg

3.9.2014

 

 

 

Discussed in committee

24.9.2014

11.11.2014

20.1.2015

 

Date adopted

16.4.2015

 

 

 

Result of final vote

+:

–:

0:

23

2

0

Members present for the final vote

Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Therese Comodini Cachia, Mady Delvaux, Rosa Estaràs Ferragut, Laura Ferrara, Lidia Joanna Geringer de Oedenberg, Mary Honeyball, Sajjad Karim, Dietmar Köster, Gilles Lebreton, António Marinho e Pinto, Jiří Maštálka, Emil Radev, Julia Reda, Evelyn Regner, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka

Substitutes present for the final vote

Daniel Buda, Angel Dzhambazki, Jytte Guteland, Heidi Hautala, Victor Negrescu, Angelika Niebler, Virginie Rozière

Date tabled

23.4.2015

Last updated: 25 September 2015Legal notice