11.4.2006   

EN

Official Journal of the European Union

C 88/61

1.1

With its Proposal for a Regulation establishing a European Small Claims Procedure (1), the Commission is pursuing a number of initiatives gradually creating and developing an area of freedom, security and justice, removing barriers and helping to make it easier to conduct civil proceedings at European level, as specifically laid down in its Action Plan adopted by the Justice and Home Affairs Council of 3 December 1998 (2).

1.2

In line with its previous positions on all Commission and Council initiatives seeking to consolidate a genuine European area of justice, the EESC welcomes and supports the proposal. The proposed legal basis is sound, enabling the procedure to be applied not only to cross-border disputes but also to domestic ones (where its application is optional), with the aim of ensuring that parties have equal rights to fair, expeditious, accessible dispute-settlement proceedings in all the Member States.

1.3

The EESC congratulates the Commission on the technically and legally sound nature of the proposal, which is clear from its article-by-article comments (3). It welcomes the balance struck between the different interests concerned, and the additional provision of a well-structured, well-thought out and clearly-presented impact assessment (4).

1.4

The sole purpose of the EESC's general and specific comments is to enhance the proposal and to fine-tune some of its mechanisms, so as to maximise its effectiveness and provide the highest possible guarantees of respect for the rights of the parties involved.

1.5

The EESC thus urges the Commission to adopt the recommendations set out below and calls upon the Member States to endorse the Commission's proposal with its current scope and content.

2.1

This proposal fulfils one of the key goals of the Green Paper of 20 December 2002 (5); the other goal of creating a European order for payment procedure was addressed a year ago (6) by a Commission proposal for a regulation, on which the EESC issued an opinion (7).

2.2

With a view to establishing a European small claims procedure, the Commission has taken into account the comments and recommendations made by the European Parliament and the EESC respectively regarding the aforementioned Green Paper, and is now presenting a proposal for a regulation seeking to establish a single small claims procedure that can be applied throughout the European Union. The procedure will be optional, and can be used both for cross-border disputes and for internal cases within the Member States.

2.3

The Commission's initiative is prompted by the fact that Member States' civil procedural law systems differ, and that the high costs and the delays entailed in cross-border small claims litigation, in particular, are disproportionate to the sums involved.

2.4

The Commission has decided to extend the scope of the proposed procedure to national disputes, in order to ensure equal treatment for all and to prevent distortion of competition between economic operators. This is in line with the EESC's opinion on the Green Paper, whilst at the same time ensuring that the procedure is compatible with the principles of proportionality and subsidiarity.

2.5

The text makes it quite clear that the proposed procedure is optional, as the creditor can always opt for a different procedure provided for by domestic law. This, too, is in line with the EESC's opinion.

2.6

The Commission observed the following fundamental principles when defining the procedure:

3.1

For a long time, the Community institutions, including the European Parliament (8) and the EESC (9), have been producing documents expressing their desire to see the standardisation and simplification of civil procedures, in order to ensure faster, more effective implementation of justice.

3.2

Echoing these concerns, which have mainly been expressed by economic operators, professionals and consumers, the Commission, too, has long been reflecting on the best way to proceed; the progress made in the pioneering field of consumer law has been particularly significant (10).

3.3

However, with the publication of the Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation it was clear that the issue was being addressed with a view to a potential legislative initiative. The Green Paper accurately pinpointed the key questions to be tackled by any future regulations in this area (11).

3.4

This initiative is part of a series of extremely important measures which have been taken in the field of judicial cooperation in civil matters over recent years (12).

3.5

Regulation (EC) No 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims (13) and the aforementioned Commission proposal on an order for payment procedure deserve special mention. They are particularly relevant when considering the current Commission proposal, in that the two texts address two aspects of the same situation — the need for simpler, more effective civil law enforcement in a single area of justice.

4.1

In line with most of the initiatives adopted in this field, the Commission has opted to propose the adoption of a regulation, taking Articles 61(c) and 65 of the Treaty as a basis.

4.2

The EESC fully supports the proposal. In its earlier opinions on the Green Paper and on the order for payment procedure, it firmly endorsed the adoption of a regulation.

4.3

It also fully endorses the Commission's choice of legal basis, which goes beyond a merely formal interpretation of the relevant legal concepts. This is the only way to fulfil the objective of creating a single EU judicial area. The Commission should be particularly congratulated on producing a solid, technically and legally sound justification for action at Community level, with due regard for the subsidiarity and proportionality principles.

4.4

The EESC also reiterates its view that an initiative of this type and scope, involving considerable investment, is only justified if it also applies (albeit optionally) to internal disputes in the Member States. It thinks that limiting it to cross-border disputes could cast doubt on its relevance, or even on the need for it at all (14).

5.1

The EESC welcomes the draft regulation, which has incorporated most of its comments regarding the Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation (COM(2002) 746 final).

5.2

In its opinion on the Green Paper, the EESC stated: ‘When formulating a European small claims procedure, the key aim will be to define suitable measures for speeding up such litigation without, at the same time, jeopardising the guarantees afforded to the parties in question under the rule of law’.

5.3

The EESC believes that, although the proposal requires minor improvements, it does represent a balanced response to the requirements of settling claims rapidly, accessibility in terms of cost and guaranteeing the rights of the parties concerned.

5.4

However, if the new system is to succeed fully in providing fair, rapid, inexpensive dispute settlement, it is essential — and the EESC points this out in particular — that the public, and not just the legal profession, are made aware of it by means of an information campaign which stresses the benefits of using it but also its limitations compared to ordinary, conventional systems (costs, provision of evidence, appeals, assistance from lawyers, representation by third parties, time limits etc.).

5.5

In addition, if the system is to be successfully implemented in cross-border disputes an effective solution must be found to the issue of linguistic diversity, and those involved — courts, professionals, parties in disputes — must be able to understand the terms used in the procedure accurately: to this end, a major effort is needed to make the forms used comprehensible.

5.6

In keeping with its views repeatedly expressed on the matter, the EESC reaffirms its commitment to the development and strengthening of mechanisms for alternative dispute resolution (ADR), which should set out strict, clearly defined principles and rules and be harmonised at Community level. A reference to these procedures could be included in the proposal's Explanatory Memorandum.

6.1.1

The EESC believes that the proposed ceiling of EUR 2 000 is clearly insufficient to cover a substantial number of situations, given the current value of goods and services. Furthermore, it believes that, where appeal is provided for (Articles 13, 15 and 16), the figure should be at least EUR 5 000. From a purely economic viewpoint, and in the light of the cost estimates contained in the extended impact assessment, raising the ceiling would contribute to a more-than-proportional reduction in costs.

6.1.2

It is not clear what is meant by the statement that the regulation shall not apply, ‘in particular’, to revenue, customs or administrative matters. As this refers to parties who are being excluded from the scope of the regulation, the list should — from the legal point of view — be limitative and not indicative. This exclusion should therefore be deleted from paragraph 1 (last sentence) and included in the list in paragraph 2.

6.1.3

Nor is it clear why arbitration has been listed in Article 2(2)(e), as it is in no way related to the subjects listed in the other subparagraphs. Arbitration is an alternative form of dispute resolution which, by its very nature, is clearly excluded and does not need to be mentioned here. The EESC suggests that the Commission delete this subparagraph.

6.1.4

The EESC regrets Denmark's decision — for well-known general reasons regarding matters of this nature (15) — to completely opt out of implementing the regulation. However, it hopes that, in future, the constraints hindering full creation of a single European area will be overcome (16) and it is pleased to learn that the United Kingdom and Ireland are looking into the possibility of joining the scheme, as they have done in the case of similar initiatives in the past.

6.2.1

The EESC considers that the question of the interruption of periods of prescription should be left to the legislation of the Member States. If it is not, Article 3(4) should take account of the various possible ways of submitting the claim, and should stipulate that the period of prescription is interrupted from the date on which the claim form is sent (proof of dispatch would be required, as delays en route may be considerable, particularly in cross-border disputes) (17).

6.2.2

The EESC welcomes the provision in Article 3(6) giving the claimant the opportunity to rectify or complete the form. The EESC made a similar suggestion when it discussed the Proposal for a Regulation creating a European order for payment procedure, and it is therefore very pleased to see that the opportunity has been included in this regulation. However, it thinks that a reasonably short deadline should be set for such corrections.

6.2.3

The EESC is concerned about the provision laid down in the last part of Article 3(7). Who will actually provide the ‘practical assistance’? Will they be properly qualified to do so? The EESC would not necessarily limit this role to lawyers and solicitors, but would point out that the ‘practical aspects’ mentioned may include matters which require legal training. Moreover, the people concerned must be prepared to perform this duty without payment, and it may be difficult to find unpaid volunteers for this in many Member States' courts. Legal professionals might also view it as non-permitted procuration that would infringe their ethics codes.

6.3.1

While it understands the reasons for opting for a written procedure as a general rule, the EESC points out the benefits of hearings, not least in order to facilitate attempts at settlement and as a way of safeguarding the fundamental principles enshrined in Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union.

6.3.2

Article 4(5) and 4(6) allow the submission of a counterclaim, even if it concerns a different case.

6.3.2.1

In procedures like this which are intended to be swift and extremely informal, the EESC has serious misgivings about allowing the submission of a counterclaim without this automatically turning the procedure into an ordinary one.

6.3.2.2

The EESC thinks that if the counterclaim does not arise from the same legal relationship as the claim, it should not be admissible in any circumstances.

6.3.2.3

At all events, the EESC thinks that if a counterclaim is allowed it should not exceed the ceiling set for the procedure, as this would subvert the objectives of the procedure.

6.3.3

Article 4(7) states that if a document is submitted in a language other than those provided for in Regulation No 1348/2000, the party is to be ‘advised’ to provide a translation. If the party fails to do this, what will be the consequences for the claim and for the procedure? This point needs clarification: we are dealing with a regulation, so the Member States cannot be expected to remedy any shortcomings in it, unless the matter is already covered by the application of the general principle laid down in Article 17.

6.4.1

Article 5(1)(c) of the Portuguese version contains the words ‘citar as partes’. In legal terms, however, there is a difference between a citação and a notificação; strictly speaking, the present case involves a notificação, not a citação. The EESC therefore proposes that the Commission amend the Portuguese version of this subparagraph, replacing the word ‘citar’ with the word ‘notificar’ (18).

6.4.2

A maximum time limit for convening the hearing must be set.

6.5.1

The EESC welcomes the adoption of rules allowing new technologies to be used for hearings, when appropriate.

6.5.2

However, the EESC draws the Commission's attention to the fact that, since the exact field of application of each of these new technologies is not defined, their use in certain situations could jeopardise defence guarantees and fundamental procedural principles such as security, certainty, an adversarial process and immediacy. This could occur, for instance, if email were used to question a witness or take the evidence of an expert.

6.5.3

The EESC points out that it is necessary to use means such as electronic signatures to secure authentic statements. The necessary precautions must be taken to ensure that local courts or tribunals have the technical infrastructure to send a legally valid statement to another court, including foreign courts (sending the statement by secure email, using audio, video or email conferences to take evidence).

6.5.4

The EESC therefore urges the Commission to change the text of Article 6(1) so as to give a more precise definition of its scope, stating in which actions and situations audiovisual media or email may be used.

6.5.5

At the same time the EESC fails to see why, if both parties agree that the technical means available are reliable, either party should be allowed to refuse to use them. It therefore proposes that this provision be redrafted so as to restrict the parties' right of refusal to cases in which the technical means do not provide the necessary guarantees of reliability and equal treatment.

6.6.1

The EESC is concerned about the possibility of taking evidence by telephone. The only way of preserving the integrity of statements given over the telephone is to record and subsequently transcribe them. The EESC therefore urges the Commission to exclude the use of the telephone as a valid means of taking evidence where it is not possible to record and transcribe the statements made.

6.6.2

The EESC recommends that the phrase ‘in exceptional circumstances’ be deleted from Article 7(2) because it conveys a subjective approach and because, in any case, the decision of whether to take evidence from ‘expert witnesses’ is the judge's alone.

6.7.1

As the proposal states that the parties may be represented by persons who are not necessarily lawyers, the EESC believes that explicit provision should be made for consumer associations to represent consumers in consumer disputes, and for professional associations to represent their members. Representation of this kind is usual in alternative dispute resolution, for example, but is not generally provided for in Member States' procedural laws.

6.8.1

Although, at first glance, the text may seem to suggest otherwise, the Commission has confirmed that the approach taken by the proposal is not that disputes are to be settled, as well as on the basis of strict legality, on the basis of considerations of equity (‘ex aequo et bono’) where appropriate. This is particularly important in cases of a non-pecuniary nature. This oversight is to be regretted: the possibility should be provided for, with the proviso that its full implications must be clearly explained to the parties in advance.

6.8.2

The comments made in point 6.2.3 also apply to Article 9(3).

6.8.3

As regards Article 9(4), the EESC thinks that the court or tribunal should always seek to reach a ‘settlement’. The words ‘whenever appropriate’ should therefore be deleted.

6.9.1

Article 10(2) should specify that if the parties cannot be present, they should be duly represented, as provided for in Article 6(2).

6.10.1

Article 11(2) states that where ‘the address of the addressee is known with certainty’, simpler means of serving documents on the parties may be used, such as simple letter, fax or email.

6.10.2

The EESC draws the Commission's attention to the fact that the clause ‘the address of the addressee is known with certainty’ is too vague and could create situations of substantial legal uncertainty with serious consequences for the parties.

6.10.3

Some Member States have the system of an address for service: under this system, if the documents are served to the address for service by a contractual party, they are assumed to have been received, and there is therefore no need for proof of receipt. However, the EESC considers that the establishment of an address for service would not be sufficient to fulfil the requirement of knowing an address with certainty.

6.10.4

The EESC therefore proposes, as stressed in its opinion on the aforementioned Green Paper and its opinion on an order for payment procedure, that the use of methods of service by the parties for which there is no proof of receipt or for which proof cannot be obtained — e.g. an ordinary letter — should not be admissible.

6.11.1

The EESC believes that, in a procedure of this kind, the court or tribunal should not be able to extend time frames indefinitely. The EESC suggests that the Commission set a limit for the extension of a time frame, and allow time frames to be extended only once.

6.11.2

The EESC deems the provision in Article 12(2) to be equally inadmissible. Indeed, in view of the way that courts and tribunals work, with penalties for failure to comply with time limits rarely in place, a provision of this kind virtually guarantees that the procedure will fail. The EESC urges the Commission to delete Article 12(2).

6.12.1

The EESC queries whether it is necessary to provide for appeal in a procedure of this kind. Indeed, either the ceiling for the procedure should be substantially higher than that proposed by the Commission — e.g. EUR 5 000 — in which case the possibility of appeal would be justified by the value of the claim, or, if the value is lower (e.g. up to EUR 3 500) no appeal should be possible (19).

6.12.2

It should also be made clear that the reference to the possibility of appeal refers only to ‘ordinary’ appeals, and not to cases in which domestic law invariably provides for appeals if the judgment is defective in some way, irrespective of the value of the claim.

6.12.3

The EESC therefore again urges the Commission to raise the ceiling for claims covered by this procedure to at least EUR 5 000. However, if the Commission opts for a figure equal to or less than EUR 3 500 it should not provide for appeal. Should a ceiling higher than EUR 3 500 be set, provision for appeal would be admissible in disputes where the claim is higher than this ceiling.

6.12.4

The EESC draws the Commission's attention to the fact that, if appeal is provided for, the law will also have to permit the court or tribunal to suspend implementation of the judgment in appeal cases in which immediate implementation could have serious, unnecessary harmful consequences for the appellant or would make the appeal itself pointless. In these cases, for instance, lodging of security could be required as a condition for suspending implementation.

6.12.5

Lastly, if appeal is allowed, it should be made clear that, by way of exception to the provisions of Article 8 (which state that the party does not have to be represented by a lawyer), the procedural arrangements of the Member States requiring representation by a lawyer in appeal cases will apply.

6.13.1

The provisions about costs are generally sound. However, it should be pointed out that the use of vague, subjective expressions such as ‘unfair or unreasonable’ does not tie in well with the harmonisation directive. The costs of the procedure are a crucial factor, and imprecise terms could lead to disparities.

6.13.2

The EESC would also repeat a suggestion made by it regarding the order for payment procedure, namely that it should be specified that Member States' national legislation transposing Directive 2003/8/EC of 27 January 2003 on access to justice in cross-border disputes is applicable in such cases (20).

6.13.3

The EESC therefore believes, in this connection, that it is essential to lay down a requirement for the parties to be informed in advance of the system of costs and reimbursement (where this exists) of lawyers' fees, and of how it compares with other judicial procedures which may be applicable, so that the parties are given a genuine choice.

6.14.1

The EESC points out that no time frame has been laid down for exercising this right and that a vague phrase such as ‘act promptly’ is not admissible. It therefore believes that, if the intention is truly to safeguard the practical means of defence open to the defendant (where the form has been incorrectly served or the defendant has been unable to defend himself for reasons of force majeure without any fault on his part), a precise time limit within which the defendant can ask for a judgment to be reviewed must be specified, without lengthening the procedure unduly, in order to avoid actions obstructing service or delaying tactics.

6.15.1

The proposed system rests on the use of the forms reproduced in annexes I, II and III. The procedures will only run smoothly if the forms serve the purpose for which they are intended.

6.15.2

The EESC has well-founded doubts about the effectiveness and practicality of the forms used in cross-border disputes.

6.15.3

For example: if an Italian company which is owed money by a Polish consumer submits a claim in an Italian court, will the Polish consumer receive the notification and the copy of the claim form in Italian or Polish? If it is in Italian, what guarantee is there that the consumer will understand it and be able to decide whether to make a statement of defence? If it is in Polish, who will be responsible for translating it? And who will bear the cost of all this?

6.15.4

The claimant does not merely have to tick boxes in the form; he also has to add written information. Who will be responsible for translating this? And who will certify that the translation is accurate?

6.15.5

Regulation No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters does not allay these concerns, given the rather informal and unhurried nature of the procedure under examination.

6.15.6

Indeed, even if the aforementioned hypothetical Polish consumer were to receive the notification in his mother tongue, in which language would he reply? Who would provide a translation from Polish into Italian? Which language will he use for the counterclaim? How will it be translated? In any such situation, barriers would be created that would adversely affect the swiftness and cost of the procedure.

6.15.7

The EESC therefore asks the Commission to consider the most effective way of ensuring that the use of these forms in cross-border disputes does not jeopardise the swiftness and cost of the procedure, or the parties' right of defence.

6.15.8

The EESC also thinks that all the forms are too complicated to be filled in by people without legal training.

6.15.9

A number of terms (statutory interest rate; % above the base rate of the ECB; cancellation of sale; honouring of commitments; default judgment; counterclaim) could be unclear to the layman. As the Commission proposes to make legal representation non-mandatory, action is needed to ensure that the users of the forms understand them and can fill them in correctly.

6.15.10

Lastly, since the possibility of the parties being represented by a lawyer or a third party is not excluded, it should be explicitly provided for in the forms.

—

Commission memorandum on consumer redress and the Supplementary Communication on the same subject of 12.12.1984 (COM(84) 692) and 7.5.1987 (COM(87) 210) respectively

—

Commission Communication on A new impetus for consumer protection policy (C0M(85) 314 final of 23.7.1985, OJ C 160 of 1.7.1985)

—

Commission Action Plan of 14 February 1996 (COM(96) 13 final)

—

Commission Communication on Towards greater efficiency in obtaining and enforcing judgments in the European Union (COM(97) 609 final of 22.12.1997, OJ C 33 of 31.1.1998)

—

Green Paper on access of consumers to justice and the settlement of consumer disputes in the single market (COM(93) 576)

—

Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 final of 19.4.2002).

—

Commission Recommendation of 12 May 1995 on payment periods in commercial transactions and the related Commission Communication (OJ L 127 of 10.6.1995 and OJ C 144 of 10.6.1995 respectively)

—

Directive 98/27/EC of 19 May 1998 on injunctions for the protection of consumers' interests (OJ L 166/51 of 11.6.1998)

—

Directive 2000/35/EC of 29 June 2000 on combating late payment in commercial transactions (OJ L 200 of 8.8.2000)

—

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) (OJ L 12 of 16.1.2001). EESC rapporteur: Mr Malosse – Opinion in OJ C 117 of 26.4.2000

—

Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ L 143 of 30.4.2004. EESC rapporteur: Mr Ravoet – Opinion in OJ C 85 of 8.4.2003

—

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 of 27.6.2001). EESC rapporteur: Mr H. Bataller – Opinion in OJ C 139 of 11.5.2001

—

Programme of measures to implement the principle of mutual recognition of decisions in civil and commercial matters (OJ C 12 of 15.1.2001)

—

Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L 160 of 30.06.2000). EESC rapporteur: Mr Ravoet - Opinion in OJ C 75 of 15.3.2000

—

Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses; idem. EESC rapporteur: Mr Braghin – Opinion in OJ C 368 of 20.12.1999

—

Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; idem. EESC rapporteur: Mr H. Bataller – Opinion in OJ C 368 of 20.12.1999

—

Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ L 174 of 27.6.2001). EESC rapporteur: Mr Retureau – Opinion in OJ C 139 of 11.5.2001

—

Communication from the Commission concerning a New Legal Framework for Payments in the Internal Market (COM(2003) 718 final of 2.12.2003). EESC rapporteur: Mr Ravoet – Opinion in OJ C 302 of 7.12.2004.