- THE CCIP S PROPOSALS -

Transcription

1 European Small Claims Procedure Author : Francine Orsal THE CCIP S PROPOSALS - PROPOSAL 1 Encourage carrying out an impact study in order to analyse the real scale of what is at stake and the consequences, within Member States and EU-wide, if this Proposal for a Regulation establishing a European Small Claims Procedure is adopted. PROPOSAL 2 If the scope of application of the Community instrument is limited to cross-border cases, allow, at the very least, each Member State to decide whether it is opportune to extend the scope of the future European regulation to cover its own national cases. PROPOSAL 3 In the case of complex cases and, in particular, when referral to an expert is required allow the judge the possibility of abandoning, on his own initiative or at the request of the parties, simplified European procedure and implementing ordinary procedure. To this end, a Paragraph 6 could be added after Article 3 (5) of the Proposal for a Regulation: 6. The court or tribunal may, if the complexity of the case makes this necessary, abandon the simplified procedure and follow the procedural law applicable in the Member State in which the procedure is conducted. It shall take into account, in particular, the observations or requests of the parties to this effect as well as any referrals to experts if these are essential to its decision.

2 2 PROPOSAL 4! In order to guarantee the usefulness of the European Small Claims Procedure, raise the ceiling for the value defining admissible claims to EUR 4000 instead of EUR Article 2 (1) of the Proposal for a Regulation should therefore read as follows: This Regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal, where the total value of a monetary or non-monetary claim excluding interests, expenses and outlays does not exceed EUR at the time the procedure is commenced. It shall not apply, in particular, to revenue, customs or administrative matters.! Make the value ceiling applicable to counterclaims also: if this amount is exceeded the dispute will automatically be subject to ordinary procedure, unless the parties agree to continue under the simplified procedure. To this end, Article 4 (6) could be amended as follows: If the total value of the counterclaim exceeds the amount set out in Article 2 (1), the dispute shall automatically be subject to the legal procedure applicable in the Member State where the proceedings are held, unless the parties agree to continue under the European Small Claims Procedure. In this case, the court or tribunal shall verify that the counterclaim arises from the same legal relationship as the claim. PROPOSAL 5 In order to prevent any misuse of the envisaged Community instrument, with the sole aim of benefiting from the simplification it offers for engaging procedures, require the applicant, where their claim does not fall within the scope of the European Small Claims Procedure, to introduce a new ordinary procedure. In order to meet this objective, an amendment to Article 3 (5) of the Proposal for a Regulation could be proposed as follows: 5. Where a claim form does not relate to an action within the scope of the Regulation as set out in Article 2, the court or tribunal shall so inform the claimant and invite the

3 3 claimant to introduce a new procedure in accordance with procedural law applicable to the claim in the Member State concerned. PROPOSAL 6 In order to facilitate access to the European Small Claims Procedure, make the claims forms available electronically, in particular on the official internet sites of the Member States. To this end, Article 3 (7) could be modified as follows: 7. Member States shall ensure that the claim form is available at all courts or tribunals at which the European Small Claims Procedure can be commenced and that it can be accessed electronically. PROPOSAL 7! In order to guarantee greater legal security, only allow registered letters with acknowledgement of receipt, in paper or in electronic format, to be used for serving documents. In this way it would be possible both to avoid unregistered letters that do not provide proof of receipt of the procedure by the defendant and to ensure the certainty of the starting date of the one month period for the defendant s response. To this end, Paragraphs 1 and 2 of Article 11 could be joined together in a single paragraph drafted as follows: 1. Documents shall be served on the parties by registered letter with acknowledgement of receipt, respecting any additional conditions provided for in Article 14 1 of Regulation (EC) No 1348/2000, and having regard to Article 8 2 thereof. They may also be served electronically if their certification is sufficiently guaranteed. Furthermore, Article 16 could be modified as follows: 1 Measures necessary for the implementation of this Regulation. 2 To secure the effectiveness of this Regulation, the possibility of refusing service of documents is confined to exceptional situations.

4 4 Provided that he acts promptly, the defendant shall be entitled to apply for a review of the judgment rendered in a European Small Claims procedure, under the conditions established by the law of the Member State in which the judgment has been rendered and communicated to the Commission pursuant to Articles 19 and 30 of Regulation (EC) No 805/2004, where: (a) (i) the claim form or the summons to a hearing were served by a method without proof of receipt by him personally; and (ii) service was not effected in sufficient time or in such a way as to enable him to arrange for his defence without any fault on his part, 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.! Insert in the preamble of the Proposal for a Regulation a recommendation to the effect that when acts are served they should be accompanied by a brief description of the procedure in order to inform the defendant. PROPOSAL 8 Concerning representation of the parties, require an express mandate and delete all references to other authorization in writing from that party. The following amendment could be proposed for Article 6 (2): If a party does not attend the hearing and another person represents that party, the court or tribunal may ask that person to present a mandate or other authorization in writing from that party, if this is required by the procedural law applicable in the Member State in which the procedure is conducted. PROPOSAL 9 In order to respect the principles of subsidiarity and proportionality, the ways in which the claimant may be assisted in procedural matters should be left up to Member State jurisdiction. To this end, Article 3 (7) could specify as follows:

5 5 7. Member States shall ensure that the claim form is available at all courts or tribunals at which the European Small Claims Procedure can be commenced, or accessible electronically (cf. proposal No 5), and that practical assistance is available at all such courts or tribunals to assist claimants to complete the form. PROPOSAL 10 Since this procedure concerns small claims it should promote the use of mediation which allows the cost of dispute settlement to be reduced, especially when carried out electronically. Therefore it should foresee that the judge in addition to his or her role as conciliator endeavouring to lead the parties towards a transaction should systematically propose that the parties have recourse, if they so wish, to mediation procedures. In the light of this, Article 9 (4) could be replaced by the following wording: The court or tribunal shall seek to reach a settlement between the parties, where appropriate through legal conciliation and, in all circumstances, by informing them of the possibility of settling their dispute through mediation. PROPOSAL 11 Assess whether to hear expert witnesses when obtaining proof for deciding whether the simplified procedure is appropriate or whether to shift to ordinary procedure. To this end, Article 7 (2) could be modified as follows: In exceptional circumstances, and subject to Article 3 (6), the court or tribunal may receive evidence of expert witnesses if it is indispensable for the judgement. PROPOSAL 12 The question of reimbursing procedural costs should be left up to Member States. At the very least, if these provisions are maintained in the future Regulation, the benefit of exemption from having to reimburse the legal fees of the other party

6 6 should be extended to corporations. This could be achieved by proposing the following amendment to Article 14: 1. The unsuccessful party shall bear the costs of the proceedings, except where this would be unfair or unreasonable. In that case, the court or tribunal shall make any order for payment of expenses on an equitable basis. 2. When the unsuccessful party is a natural person and is not represented by a lawyer or another legal professional, he shall not be obliged to reimburse the fees of a lawyer or another legal professional of the other party. PROPOSAL 13 Given that it is necessary both to accelerate the settlement of small claims and also to limit distortions of competition within the internal market, the wording of the Regulation should exclude any rights of appeal both uniformly and directly. To this end, reword Article 15 of the Proposal for a Regulation as follows: There shall be no appeal or cassation against a judgement rendered in a European Small Claims Procedure. In consequence, the first sentence of Article 13 should be adjusted as follows: The judgement shall be immediately enforceable, notwithstanding any possible appeal. ( ).