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More affordable the protection of "small claims" by the European procedure

The European Union, in order both to ensure a single area of justice in the Community and even to guarantee the access to justice, has been working long since at issuing a series of acts in the civil and commercial matter.

The need was felt because, more often than not, the judicial way is a way that, unfortunately, can take much time as well as a considerable cost of money. Then, not always who starts a dispute has the certainty to achieve the full satisfaction of his rights and the repayment of the expenses incurred for that purpose. Should be necessary to start a dispute in a State different than the one’s own, the situation could even get worse. This is a hypothesis that can occur more and more often, considering both the free movement and the rights of establishment in the EU of natural person and enterprises as well as the significant growing up of the cross-border commercial relationships. Thus, it happens so often that, when a credit or when the value of a claim is small, the legitimated party prefers not to start at all a dispute, considering the judicial measure as not advantageous by an economic point of view. Most likely, the only activity that will be carried on in such hypothesis will consist in the mere delivering to the counter-party of extrajudicial demand notes, reminder notes and so on. Therefore, it appears clear that in those situations – when the counter-party does not spontaneously cooperate – “the party who is in the right” can not get justice and, consequently, he has to suffer the frustration of the boasted right, with possible negative repercussions even under the economic and financial point of view.

The tools elaborated by the Community law, which have the goal to ensure the judicial protection, saving expenses and time, can therefore become interesting more and more often. These tools can even be more appreciated during financial crisis periods and especially by small and medium-sized enterprises, because the impossibility to get justice quickly (when, for example, is not possible to recover debts, even if they are small), can put the stability as well as the survival itself of such enterprises in a serious danger.

The European procedure of the Reg. (EC) 861/2007

A particular example of the Community law’s tools above mentioned is that one provided for by the Regulation (EC) 861/2007 which established a European procedure for small claims.

As from January the 1st 2009, as an alternative to the proceedings provided for by the law of the Member States and for a certain kind of claims, who wants to protect his own rights by a judicial measure, has the possibility to use the new simplified and speeded up procedure established by the said regulation. It should be immediately clear that the regulation has some applicability’s restriction, with reference to the value of the claims as well as to the nature of the boasted right. Gradually, the European procedure shall apply to the sole claims in civil and commercial matter which can be considered as cross-border cases. But, the regulation shall not apply to such kind of matters concerning, as for example: bankruptcy, revenue, customs or administrative matters; as well as in cases of defamation, maintenance obligations, status or legal capacity of natural persons. For the sake of completeness, however the reader should refer to the art. 2 of the Reg. (EC) 861/2007. Then, “cross-border cases” are those claims in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised. In any case and generally speaking, the area of applicability of the procedure is restricted to the only so called “small claims”. It is here that, according to the writer’s opinion, the most criticism should be done: in fact, the Community legislator considers as small those claims where their value does not exceed Eur 2 000 (excluding interest, expenses, etc.). This is an amount that, de facto, clearly reduces the practicalness and the concrete applicability of the new simplified procedure.

The procedure’s structure

The European procedure for small claims shall be a written procedure by the use and the exchange – between the claimant, the defendant and the court – of standard forms specifically provided for this purpose. The forms are available in all the official languages of the EU’s Institutions and they are set out as an annex in the regulation itself. The procedure is started by the claimant by the mere filling and sending of the so called “form A”. The form can be lodged with the court with jurisdiction directly or, as an alternative, it can be delivered by post, fax or e-mail, as freely chosen by any Member State (for example, Italy admits only the delivering by post as an alternative means of communication, while the Czech Republic besides the use of post admits both fax and e-mail).

Once received the claim, the court shall notify it to the defendant. This must be done, as a rule, within 14 days. The defendant will have the possibility to respond within the following 30 days by the filling and the sending of a specific standard form: in this case, the so called “form C”. Once the response has been received by the court, it shall be notified to the claimant within the following 14 days. At this moment, special situations a part (for example, lodging of a counterclaim, needing to take evidences or to hold an oral hearing) within the following 30 days the court shall give its judgment. Thus, in normal conditions it would be possible to reach the conclusion of the procedure in only 88 days. Lapse of time this one that is considerably lower than the standard average length of time to reach the conclusion of proceedings before to inferior courts of any Member State. In fact, we can consider that recent estimates have fixed the mentioned average length in 547 days (min. length of time, Lithuania: 275 days – max. length of time, Slovenia: 1 290 days). In the specific case of the Czech Republic and Italy, the estimated length of time is, respectively, 611 and 1 210 days.

From a legal point of view it is necessary to underline two facets: the first one, it is that where a claim is outside the scope of the Community regulation, the proceeding shall not be governed at all by the rules provided for by the simplified procedure, but it shall be governed exclusively by the typical procedural law of the Member State in which the procedure is conducted. However, in such hypothesis the claimant can withdraws the claim. The second one is that, subject to the provisions of the Reg. (EC) 861/2007, the European procedure shall be anyway governed by the procedural law of the Member State in which the procedure is conducted.

Advantages and disadvantages

The judgment issued at the end of the European procedure is immediately enforceable in all the EU area. This fact surely represents an advantage, especially speaking by those judicial systems (as, for example, the Czech Republic’s system) where the judgments issued by inferior courts can not be immediately enforced. Moreover, the enforcement proceeding could be refused or stayed only exceptionally and where special conditions occur (articles 22-23 of the regulation). Then, the judgment is automatically recognized in all the Member States just on the basis of a mere certificate (the so called “form D). Others advantages can be identified in the notable expenses and time saving; in the lack of oral hearings (except when the judge considers them necessary or when a party requests for them), with the consequent reduction of judicial fees, besides the total abatement of travelling expenses (journey, accommodation, etc.); in the duty for the unsuccessful party to bear, in any case, the costs of the proceeding.

The regulation (EC) 861/2007 does not force the parties to be neither assisted nor represented by a qualified legal professional, even if that is surely something to suggest, at least during the starting phase of the procedure. In fact, even if we are speaking about a simplified procedure, some facets need technical skills (for example, the individuation of both the Member State and the specific court with jurisdiction for the claim). The opportunity to be assisted in the forms’ filling and, eventually, even to be represented during the procedure could become a clear need should the procedure itself be conducted in a language different than the party’s own. However, in the case of assistance/representation, the regulation provides for the possibility to demand to the counter-party, as from the very moment in which the claim is lodged, the repayment of the incurred expenses.

Under the point of view of the disadvantages, we point out the chance of the defendant to “defuse” the simplified procedure, lodging in his turn a counterclaim which exceeds the maximum mentioned limit of Eur 2 000. If so, the regulation provides for that the claim and the counterclaim shall not proceed “in the European small claims procedure but they shall be dealt in accordance with the relevant procedural law applicable in the Member State in which the procedure is conducted”. However, in this regard it has been correctly provided for that the counterclaim must not be clearly unfounded or inadmissible. In fact, in such cases, the counterclaim would be dismissed and the procedure would continue according to the way of the European small claim procedure.

In conclusion and properly considering the small value of the claims which are subject – however optionally – to the discipline of the Reg. (EC) 861/2007, it is a pity that the European Union had not tried to exploit this chance in order to test a common language proceeding with common rules valid all over the Community area. Then, we can hope for the very next future the increasing of the limit of Eur 2 000, so that this procedure could become much more usable. Under this point of view, the choice of the Community legislator to provides for the drafting of an official report on the results of the operation of the European procedure, including the limit value’s choice, it would seem to properly direct towards such direction.

21/03/2011

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