An interesting report was published last week on the website of ECC-Net, the network of European Consumer Centres set up to help EU consumers. The network provides advice on EU consumer rights and helps with disputes with traders in other EU countries. The report looks at how the European small claims procedure operates.
The European procedure was established by Regulation (EC) No 861/2007 (the Regulation) to improve access to justice by simplifying cross-border small claims in civil and commercial matters, and by reducing costs. Small claims are defined as cases where the sums do not exceed €2,000, excluding interest, expenses and disbursements at the time the claim form is received by the competent court. The procedure is conducted mostly in writing using pre-defined forms. The judgment is made in the country of residence of the consumer, and protects the rights of defence. It is directly enforceable in the country of the losing party.
The report’s conclusions are very familiar European stories. First, it found that the Regulation is not well-known. Some courts had never even heard of the procedure, and many did not provide consumers with the relevant forms, either at their premises or on their website, as required by the Regulation. One solution the report proposes is to dedicate a court or courts in each member state specifically to deal just with European small claims.
Second, the old problem of language makes an appearance. Some member states’ proceedings require all documents to be translated, which – if it is at the claimant’s expense – make the advantages of a quick and cheap procedure disappear. The authors recommend an incendiary solution: that one common language should be accepted in all European courts for small claims. Such a proposal is never likely to succeed. An effort by the EU institutions to introduce just three languages for patents has led two countries, Italy and Spain, to challenge the legality of the proposal before the European court of justice. We, of course, assume that the language would be English, but just think what the UK courts would do if the sole common language were German or French.
Language appeared in the third problem, too, that of service. Claimants did not know how to serve the document on the other party… and then the other party often did not understand what was served on them, because it was in the claimant’s language.
Finally, enforcement: the procedures are very different from one member state to another, and sometimes the enforcement proceedings, which have to be started in the country of the defendant, can cost even more than the value of the claim itself, again vitiating the benefits. The recommendation here is that there should be better coordination among what the report calls ‘procedural officers such as bailiffs’. Even better, say the authors, would be the establishment of a European network of bailiffs. Hey presto! By magic, that step took place last week, too: the new European network of bailiffs came into being. It calls itself in English the European Chamber of Judicial Officers, and not all member states are represented. That is because the idea of what a bailiff is and does varies widely between member states: sometimes an independent professional, sometimes a civil servant, sometimes a strongman hired by the court.
The European Commission has pledged to release a guide this year, with practical information for consumers and for practitioners. The Commission will also, if necessary, revise the conditions to make the small claims procedure work more effectively by, for example, increasing the threshold of €2,000 to cover bigger claims, or further simplifying the standard forms used in the process.
We should not be downcast by the mediocre results. No muttering of ‘typical EU mess’, please. This is the future. There will be more cross-border claims as the use of technology spreads. Instead, we should view the current position as a work-in-progress, which will, I hope, improve in years to come by learning from the present mistakes.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs