European small claims procedure (until 2017)
Regulation (EC) 861/2007 — on European Small Claims Procedure
WHAT IS THE AIM OF THE REGULATION?
It introduces the European Small Claims Procedure (ESCP).
The ESCP aims to simplify and speed up cross-border small claims litigation in civil and commercial matters and cut costs.
It is, in principle, a written procedure, that does not require a physical presence in court. However, the court may decide to carry out an oral hearing.
The value of the claim (when it is received by the court) cannot exceed €2,000.
It ensures that judgments are recognised and enforceable in other EU countries without the need for a declaration of enforceability.
The ESCP is an alternative procedure existing alongside EU countries’ domestic laws. It is an optional procedure.
The ESCP applies where at least one of the parties is domiciled or habitually resident in an EU country other than that of the court where the action is brought.
It can be used to recover civil and commercial claims. It does not apply to revenue, customs or administrative matters, to the liability of the state for exercising state authority (acta jure imperii) or, for example, to:
- the status or legal capacity of natural persons (i.e. human beings);
- family law issues;
- social security;
- employment law;
- property tenancies, except for monetary claims;
- violations of privacy and of rights relating to personality (e.g. defamation).
The ESCP, for which no lawyer is required, works as follows:
Filing the claim
The claim is filed directly with the competent court by means of a form (Form A — in the annexes of the regulation) giving details of the claim, sum demanded, etc. If the claim is outside the scope of the ESCP, the court notifies the claimant; if the claim is not withdrawn, the court proceeds with it under the relevant procedural law in that country.
Correcting and/or completing the claim form
If the claimant has not provided enough information, a second form (Form B) is sent asking for the missing information by a deadline. The application is rejected if the claimant does not fulfil the court’s demand on time or if the claim is clearly unfounded or inadmissible.
Notifying the defendant
Once it receives the completed claim, the court prepares a standard response form (Form C), which must be sent to the defendant within 14 days, together with a copy of the claim and any supporting documents. This must be served by post with dated acknowledgement of receipt; if this is impossible, other methods of service may be used.
The defendant has 30 days from the date of service of the answer form to respond. Within 14 days of receiving this response, the court forwards a copy of the reply to the claimant, with any relevant supporting documents.
Any counterclaim by the defendant (using Form A) is served on the claimant who has 30 days to respond. If the counterclaim exceeds € 2,000, both the main claim and counterclaim are dealt with in accordance with the law applicable in the country in which the action is taken.
Decision and deadlines
The court must give judgment within 30 days of receipt of the response from the defendant (or claimant, if there is a counterclaim). It may ask for further information to be provided within 30 days and/or take evidence or summon the parties to a hearing (see below), also to be held within 30 days of the summons. In these cases, the court still gives its judgment within 30 days, but from the time of receiving the information required or holding the hearing.
If the parties do not reply in time, the court still gives its judgment. The court shall issue a certificate of judgment to facilitate cross-border enforcement (without further cost), using Form D, at the request of a party.
A hearing is held only if necessary or if requested by one of the parties. The request may be refused if it is clearly unnecessary for the fair conduct of the proceedings. The hearing may be via videoconference or similar technology.
The court determines the extent of the evidence needed for its judgment and the means of taking it, using the simplest and least onerous method.
Enforcement of the judgment
The judgment cannot be reviewed as to the substance in the EU country of enforcement.
Governed by the law of the country in which the judgment is enforced, the party seeking enforcement produces an original copy of the judgment and of the certificate (Form D) translated into the language of the country of enforcement. No security, bond or deposit on the grounds that the claimant is a foreign national or is not domiciled or resident in the EU country of enforcement can be required. The claimant does not need an authorised representative or an address in the country of enforcement, other than that of agents competent to carry out the enforcement procedure.
Refusal of enforcement
The court in the country of enforcement can, on the defendant’s request, refuse to enforce the judgment when:
- it is irreconcilable with an earlier judgment between the same parties in the same matter:
- the earlier judgment was given in the EU country of enforcement or fulfils the conditions necessary for its recognition there; and
- this irreconcilability was not, and could not have been, raised as an objection during the proceedings where the ESCP judgment was given.
In the event that a party challenges an ESCP judgment, the country of enforcement can limit enforcement to protective measures, make it conditional on some security, or, in some cases, stay the enforcement proceedings.
Appeal against a judgment is possible if it is provided for under the law of the country of origin of the judgment.
The defendant can apply to the competent court where the judgment was issued for a review when:
- the claim form or summons to a hearing was served by a method without proof of receipt by the defendant personally and service was not effected in time for a defence to be prepared, without any fault on the defendant’s part; or
- the defendant was prevented from objecting to the claim by reasons of force majeure, without any fault on their part.
In these cases, the defendant is expected to act promptly. When a review is justified, the original judgment becomes null and void.
The court does not require the parties to make any legal assessment of the claim. If necessary, it informs the parties about procedural questions and, where appropriate, it seeks to reach a settlement between them.
Languages and translations
The claim must be submitted in the language of the court, as must the response, any counterclaim, the description of supporting documents, essential documents, etc.
The unsuccessful party pays the costs of the proceedings. The court will not award costs to the winning party if they were unnecessarily incurred or disproportionate to the claim.
Regulation (EU) 2015/2421 amends Regulation (EC) No 861/2007. It has applied since 14 January 2017.
The regulation does not apply in Denmark.
FROM WHEN DOES THE REGULATION APPLY?
It has applied since 1 January 2009, apart from the rules requiring EU countries to inform the Commission on aspects of jurisdiction, means of communication and appeals (Article 25) which came into force on 1 January 2008.
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ L 199, 31.7.2007, pp. 1-22)
Successive amendments to Regulation (EC) No 861/2007 have been incorporated in the basic text. This consolidated version is of documentary value only.
Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure (OJ L 341, 24.12.2015, pp. 1-13)
last update 04.04.2018