Opinion of the European Economic and Social Committee on 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)

(2003/C 220/02)

On 20 December 2002, the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the: "Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation".

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on this subject, adopted its opinion on 4 June 2003. The rapporteur was Mr von Fürstenwerth.

At its 400th plenary session of 18 and 19 June 2003 (meeting of 18 June), the European Economic and Social Committee adopted the following opinion by a unanimous vote.

1. Summary of the conclusions

1.1. The European Economic and Social Committee (EESC) welcomes the Commission's Green Paper as a useful initiative and a logical follow-up to the conclusions of the Tampere European Council. The single market cannot be completed without the establishment of a common legal framework(1). With this aim in view, the introduction of a rapid, efficient and fair order for payment procedure, which is accessible to the public and to enterprises, is also a key component of the public right of access to justice(2). In a single market, members of the public and enterprises must be able to assert their rights in both the Member States in which they are usually resident and in other Member States and the cost risk must be both transparent and reasonable.

1.2. In the light of the findings of the consultations, the EESC encourages and also urges the European Commission to submit a legislative proposal for the introduction of a standard European order for payment procedure.

1.3. The EESC welcomes the Commission's endeavour to speed up civil procedures and to make them more cost-efficient and effective. In this context, it should also be borne in mind that, particularly in the case of actions brought by consumers, there is frequently a glaring imbalance between the sum in dispute and the legal costs of bringing the action(3). The same applies in the case of SMEs, which are often neither ready nor able to use the services of an international law office or a number of lawyers to assert their rights. The EESC endorses the need, even with regard to disputed claims, to establish an instrument to enable enforceable decisions to be taken rapidly and at reasonable cost in respect of cross-border cases. This need is all the greater in view of the fact that, given the cost and duration of the procedures for securing a judgement against a debtor in a different Member State, consumers and SMEs are virtually prevented from exploiting the basic freedoms of the common market.

1.4. 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.

1.5. In the light of its earlier opinions on judicial cooperation and the establishment of a uniform legal framework, the EESC points out that the only way to ensure that such legislative measures are successful is to make consumers and enterprises sufficiently familiar with them. The EESC firmly believes that the associations representing organised civil society have an important, practical and concrete role to play in this context.

2. Introduction: reasons for the initiative

2.1. In submitting its Green Paper, the Commission is launching a consultation procedure, involving all interested groups, with regard to the possible introduction of one or more Community legal instruments. The instruments concerned are as follows:

- a European order for payment procedure: this would involve establishing, in all the Member States, the same specific procedure for the rapid and effective recovery of claims which are expected to be uncontested, and

- a civil procedure specifically geared to the requirements of small claims litigation, which may speed up and limit the costs of enforcing disputed claims involving small sums by simplifying proceedings.

2.2. Legal background

2.2.1. The Green Paper is part of an extensive body of legislative work being carried out by the Commission which has either already been completed, is in the planning stage, or is currently in progress. The EESC has had the opportunity to give its views on several occasions on individual proposals put forward by the Commission(4).

2.2.2. Mention such be made first of all of the work in the field of civil procedural law, in particular:

- the incorporation into Community law, in the form of a Regulation, of the 1968 Brussels Convention(5),

- the proposal for a Council Regulation creating a European enforcement order for uncontested claims(6),

- the Council Regulation on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters(7),

- the Council Regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters(8),

- the Council Recommendation on the principles applicable to out-of-court settlement of disputes(9),

- the Council Decision establishing a European judicial network in civil and commercial matters(10).

2.2.3. Mention should also be made of work with regard to the substantive conflict of laws, in particular:

- the draft Regulation on the conflict of laws relating to non-contractual obligations (Rome II)(11),

- the publication of a Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument(12).

2.2.4. Finally, mention should be made of work in the field of substantive civil law, in particular:

- the Communication from the Commission of 11.7.2001 on European contract law(13),

- the consumer credit Directive(14),

- the Council Directive on unfair terms in consumer contracts(15).

2.2.5. All these activities serve two goals: firstly, to establish a legal framework designed to enable all economic players to exploit the European single market more easily and with fewer problems; secondly, to facilitate public access to justice in the EU.

2.2.6. The substantive observations in the Green Paper cover two different issues, namely the European order for payment procedure and the introduction of a small claims procedure. The two issues are linked, insofar as the enforcement of civil-law claims could be speeded up and made more cost-effective by both. On practical grounds, it is probably advisable to draw up separate legislative proposals in respect of each of these fields.

3. European order for payment procedure

3.1. The EESC encourages and urges the Commission to present a proposal for the introduction of a European order for payment procedure leading to the creation of an enforcement order applicable in all Member States without an exequatur procedure.

3.1.1. Comments on the structuring of the procedure

Scope (question 1)

3.1.2. Order for payment procedures exist in many EU Member States and have proved their worth as an instrument for bringing about the rapid enforcement of claims in cases where the creditor does not expect the debtor to present a serious defence of his case. The purpose of this procedure is above all - in comparison with ordinary civil proceedings - to secure an enforcement order without delay in cases where the obligation on the part of the debtor to make payment is not in dispute but where the debtor simply fails to make payment. In view of the fact that self-redress is banned in all Member States, the creditor is obliged, even in such cases, to have his claim enforced by a state authorised body. To this end, the creditor needs to have a basis for taking action, in the form of an enforcement order. This situation as regards the interested parties applies irrespective of whether or not the case involves cross-border aspects. It would therefore fundamentally not be advisable if, in addition to the order for payment procedures established in the Member States, there was to be an additional, procedure subject to separate, i.e. EU rules, with the result that the procedure to be followed would differ according to whether the claim involved cross-border aspects or was a purely national affair. The EESC therefore recommends that a uniform European order for payment procedure be applied, irrespective of whether the facts of the case concerned are of a purely national or cross-border nature. In this context, the EESC acknowledges that there are also good reasons for establishing, as a first step, a procedure covering only cross-border cases. Experience could be gathered with such a European model. Provisions could subsequently be laid down for national cases, too. The decision on which course of action is the more effective should be taken in the light of the outcome of the consultation launched by the Green Paper. There are bases for EU competence in both cases. In addition to Article 65 TEC covering "matters having cross-border implications", Article 95 TEC, in particular, springs to mind.

Selection of the appropriate legislative instrument (question 2)

3.1.3. In comparison with points raised in the preceding paragraph, the question of whether the EU legislator opts for a Regulation or a Directive to legislate in this field is of rather secondary importance. Clearly, use of a Regulation would mean that the provisions could become law more quickly. It should be borne in mind that the use of a Directive obliges national legislative bodies to transpose the provisions in question into their own national legislation. When doing this, national legislative bodies will have to ensure that all procedural rules and prerequisites of national law are smoothly brought into line with European law so as to prevent contradictions and points of conflict. There is a particularly strong risk of such difficulties occurring when a uniform legal area is established, as the different legal cultures are particularly marked. The use of a Directive in this context does not necessarily imply that the EU legislator has to prescribe only a loose framework for national legislative bodies. In this case, too, the EU legislator can set out comparatively detailed provisions which ultimately ensure that the procedure and its prerequisites take essentially the same form in all EU Member States. The choice of legal instrument will depend, above all, on the intended field of application. If legislative action is to be based on Article 65 TEC, the EESC recommends the introduction of a Regulation.

Stocktaking (question 3)

3.1.4. The problem of recovering claims in cases where court proceedings are generally only necessary because the debtor simply fails to pay up, and there is no serious dispute over the actual grounds for the claim, is a problem which occurs very often in all of the Member States. It is theoretically conceivable that such cases could preferably be settled on the basis of judgements by default, or that special summary proceedings could be introduced for such purposes or, yet again, that, as in the Netherlands, injunctions could mainly be used. In cases where injunctions are issued enjoining debtors to make payments and where such debtors do not take legal proceedings regarding the main issue of the case, the claims involved should thus, from a purely de facto standpoint, be quickly settled. Many Member States have, however, set up their own separate order for payment procedures. Although there are many differences of detail with regard to these procedures, they all involve courts (or another competent authorities) taking decisions on claims without beforehand hearing the views of the debtors. The decision is then notified to the debtor, together with the demand that he either fulfils his obligation or contests the decision within a set time limit. If the debtor fails to take action, the decision (order for payment) can then be enforced. Only in cases where the debtor contests the decision, are ordinary legal proceedings initiated.

It is clear that this procedural simplification will also be beneficial in cases involving the enforcement of claims which are likely to be undisputed where such claims involve cross-frontier aspects. This point should be emphasised particularly in view of the fact that litigation in other countries places considerable burdens on claimants (creditors). Particularly in such cases, the simplicity and speed of the order for payment procedure would have a special impact if such a procedure could be initiated in one Member State of the European Union and the resultant order could be enforced in all other Member States without the need to carry out any further substantive investigations. The fact that it would be possible to transfer to ordinary legal proceedings in the event of objections being raised by the debtor ensures that the rights of the debtor are fully safeguarded.

Subject of the order for payment procedure (questions 4-6)

3.1.5. The order for payment procedure is the ideal procedure for ensuring rapid and effective enforcement of claims in respect of monetary payments. If other claims, such as those involving taking or not taking a particular action, the handing-over of goods (e.g. the delivery of pre-paid goods) or the like, were included in the order for payment procedure, particular difficulties would arise in view of the fact that such cases do not lend themselves to a uniform approach. In these cases an accelerated small claims procedure would be better. The EESC therefore recommends that the order for payment procedure be confined to claims in respect of monetary payments, which are unequivocal, clearly defined and due for payment based on contract.

3.1.6. It should be self-evident that a claim cannot be enforced under the order for payment procedure if it is itself dependent upon a consideration being executed by the creditor which he has so far failed to execute.

3.1.7. The EESC feels that, insofar as guarantees are provided with regard to the effectiveness of service and the possibility of lodging an objection, the nature of the procedure in question does not necessitate the setting of any financial ceiling, except for reasons of prudence and lack of experience with the instrument in question.

Obligatory or optional use of the order for payment procedure (question 7)

3.1.8. The order for payment procedure should generally be seen from two standpoints: on the one hand, it serves to remove from the courts the burden of making a huge number of enforcement orders in respect of claims involving ordinary legal proceedings, in cases where the expected cost is probably not justified from the standpoint of protection of the debtor; on the other hand, the procedure serves in the same way to make it easier for the creditor to recover his claim and saves him time in obtaining an enforcement order. These two standpoints cannot be seen in isolation. If a creditor opts for the less straightforward course of action of seeking to recover his claims by having recourse to ordinary civil proceedings, he should be authorised to pursue this course of action. It should be possible under the procedural laws of all the Member States to have recourse to a shorter and less expensive procedure in ordinary civil proceedings, too, in cases where the debtor does not defend the case. The EESC therefore recommends that use of the order for payment procedure should not be made obligatory.

Questions of jurisdiction (questions 8-10)

3.1.9. The question of international jurisdiction will be a matter of decisive importance if order for payment procedure is harmonised. In the case of ordinary civil proceedings, this issue is resolved under Council Regulation (EC) No 44/2001 on the basis of a differentiated system which weighs up the respective interests of the plaintiff and the defendant and reaches a settlement. A uniform European order for payment procedure should be incorporated into this system. In this context it should be sufficient for the EU legislator to confine itself to addressing the issue of regulating international jurisdiction. It would not appear to be necessary for the EU legislator to stipulate also which court in the Member States is to have local jurisdiction or jurisdiction in respect of particular subject matters under the order for payment procedure. In this context, established practices with regard to jurisdiction in the Member States may be followed. It does not appear that this would give rise to disadvantages for the parties concerned. The same considerations also apply with regard to the question of the qualifications to be possessed by the persons or bodies issuing the European order for payment. Here, too, existing rules in the Member States may be invoked or the Member States may be given responsibility for adopting rules governing this matter in the light of their respective legal cultures.

Content and form of the European order for payment, questions of proof (questions 11-13)

3.1.10. As regards content, the Commission had already defined a series of data which has to be included in the application for the issue of a European order for payment. The EESC endorses these proposals. Problems may, however, arise with regard to the degree of detail to be provided when setting out the proof of a claim. As the order for payment procedure is intended to be a rapid summary and efficient procedure, there can be no question of stipulating the same requirements as in the case of a statement of claim to be submitted under ordinary civil proceedings. It must therefore be sufficient to set out the essential elements of a claim so that the debtor can recognise which claim is involved and so that another court, which maybe asked to make a further enforcement order in respect of the claim, can ascertain that this claim has already been enforced under the order the for payment procedure.

3.1.11. As the order for payment procedure is a summary procedure, the evidence is not weighed. In view of the fact that creditors should also generally only seek to make use of this procedure if they believe that the claim will not be disputed, there is hence no justification either for introducing the presentation of evidence into the order for payment procedure. The rights of the debtor are safeguarded by virtue of the possibility open to him to raise objections to the claim and to have the case transferred to ordinary civil proceedings, in which proof may be produced in any form that is legally authorised in respect of the competent court. It should not therefore be a requirement under the order for payment procedure to submit any form of documentary proof of the claim, though this should not prevent the claimant from being able to do so, in which case the debtor must be informed of the proof with the order for payment.

3.1.12. The use of a standard form is an absolute prerequisite for the automated processing of applications.

Computer technology and electronic data processing (question 14)

3.1.13. The order for payment procedure should be automated wherever technologically feasible. Inevitably, that involves the use of electronic data processing. Only in that way will the procedure become cost-effective. The court and the parties should, as far as possible, communicate electronically. Wherever possible, standard text elements should be used.

Examination of justification, part claims, standardisation (questions 15-18)

3.1.14. An examination of content would make the order for payment procedure disproportionately cumbersome. Speedy and efficient proceedings would no longer be guaranteed. The debtor's rights are safeguarded in that, should he lodge opposition, the case is transferred to ordinary civil proceedings, where a judge considers the justification of the claim. However, the Community instrument should provide for specific cases in which the claim may be dismissed out of hand, such as when the essential formal requirements of the claim itself are not fulfilled.

3.1.15. As the Committee recommends standardising the procedure and using computer technology to process it, the resultant order for payment should also be standardised, i.e. made uniform in all Member States, if only to avoid problems of understanding and translation in cross-border cases. Without standardisation, the usefulness of the procedure in cross-border cases would be called into question. Given that the order for payment procedure is by its very nature summary and quick, the content of the claim in such cases is not subject to examination by the judge. This is a prerequisite for automated processing. That being the case, the order for payment can only granted for the full amount claimed, or refused altogether. To grant a part claim, it would be necessary to go into the content of the case (to distinguish justified or non-justified parts).

3.1.16. The rights of creditor and debtor must be subject to safeguards in this case too. The creditor must have the possibility to lodge opposition against any rejection of his application. However, if that opposition is refused, he should not, for reasons of efficiency, be able to introduce the same claim again by applying for a European order for payment. The debtor may lodge opposition to the order for payment and thus seek to have the case transferred to ordinary civil proceedings, where he has every means of defence at his disposal.

Information on appeals, service of the order (questions 19-20)

3.1.17. The debtor on whom a European order for payment is made and served must be informed of the possibility of lodging opposition to the order and of the fact that, by virtue of lodging opposition in this way, the case is transferred to ordinary court proceedings. The debtor should also be made aware of the time limit for lodging opposition and the formal conditions involved. To enable him to make real use of his right of opposition, he must be notified of the address of the court or authority where the opposition is to be lodged. So that he is clear about the implications of his decision to lodge opposition, he must be informed that the order for payment will become enforceable if the claim is not contested within the time limit. This information must be provided in such a way that it can be readily understood - and its significance appreciated - even by consumers inexperienced in legal and business matters. The EESC also proposes that the legal instrument should spell out the consequences of failure to provide information on appeals.

3.1.18. The service of the opposition on the debtor is a key element of the order for payment procedure. From the point of view of the cross-border validity of orders for payment, it would seem to be essential to have uniform rules on service throughout the EU Member States, containing every possible guarantee that debtors are effectively apprised of documents served against them. The EESC therefore urges the Commission at the same time to submit draft legislation aimed at standardizing the rules on service of judicial documents. However, should this not be possible in the short term, before the present instrument is adopted, the EESC feels that the present instrument should contain specific rules on the service of orders for payment to ensure that debtors are effectively apprised of such claims.

Opposition, res iudicata effect (questions 21-27)

3.1.19. A uniform time limit should be set to give the debtor a real opportunity to lodge opposition. A time limit of 21 days from the service of the order for payment appears adequate. The opposition should be lodged in writing so that the facts are verifiable later and evidence exists. If the debtor's opposition to an order for payment and the transfer of the case to ordinary judicial proceedings are to have any real meaning, consideration should be given to whether it might not be appropriate for the enforceability of the order for payment to be delayed until the time limit for lodging opposition has expired, or revoked by virtue of opposition being lodged. Thought could be given to whether the procedure would be made particularly effective by specifying that the lodging of opposition automatically triggers the transfer of the case to ordinary proceedings, without the debtor having to file a further application. In this context, it must be ensured that the creditor is given the opportunity to present further supporting documents and to substantiate his claim.

3.1.20. It would be incompatible with broadly held legal opinion in Europe if any judgement issued in summary proceedings, such as the order for payment procedure, could not be contested within a given time limit. The judgement delivered under the order for payment procedure must therefore be open to judicial review. This concern is, however, already met by giving the debtor the possibility of lodging opposition within a given time limit, and the creditor the option of appeal against refusal of the order. No other legal remedies appear necessary, particularly since there are regularly avenues available for appealing against the judgement of the ordinary proceedings launched after opposition has been lodged. The Committee proposes that careful consideration be given to determining how effective precautions could be taken to stop opposition being lodged merely for the purpose of further delaying payment of the claim. In this context, account must, however, be taken of the necessary entitlement to a fair defence.

3.1.21. A judicial judgement is generally deemed to carry the full effect of (formal) res iudicata once it can no longer be contested using ordinary legal remedies. That is important in order, to bring a legal dispute to a close at some point. Res iudicata should formally come into effect on expiry of the time limit for lodging opposition against the order for payment.

Mandatory representation by a lawyer, costs, provisional enforceability (questions 28-31)

3.1.22. The right to representation by a lawyer should not be restricted. However, under no circumstances should mandatory representation by a lawyer be introduced. Provided that the time limit for the debtor to lodge opposition is not too long and the issuing of a special enforcement order is dispensed with, the resultant order for payment can become enforceable very quickly. That being the case, it seems justified not to provide for separate, provisional enforceability, which would raise some difficult issues. Given that the content of the claim is not examined before the order is made, an appropriate solution would be to specify that enforcement cannot start or continue in the event of opposition being lodged against the European payment order.

3.1.23. A European enforcement order would simplify cross-border cases only if it is possible to dispense with an exequatur (declaration of enforceability) in the Member State in which the order has to be enforced. Also, any requirement that enforceability abroad would have to be specially certified by the Member State of origin would be completely at variance with the call for a quick, straightforward procedure. On the other hand, the certification of a European enforcement order by the Member State of origin provided for Article 4 of the Proposal for a Regulation creating a European Enforcement Order for uncontested claims(16) does secure certain procedural safeguards for the debtor. To dispense with certification by the Member State of origin, it would be necessary to incorporate procedural safeguards (commensurate with those set out in Chapter III the Proposal for a Regulation creating a European Enforcement Order for uncontested claims) into the legislation on the European payment order.

4. The European small claims procedure

4.1. The Committee welcomes the Commission's efforts to accelerate civil proceedings and make them cheaper and more efficient. It supports the establishment of a European procedure to simplify and speed up small claims litigation.

4.1.1. Structuring the European small claims procedure: some comments

Basic considerations

4.1.2. Two factors underpin the proposed establishment of a small claims procedure. On the one hand, people in the Member States are dissatisfied with ordinary, established judicial proceedings, which are considered too slow, too expensive, and too difficult to deal with. This is particularly true for small claims, where the procedural effort involved often bears no relation to the economic value of the matter in dispute. On the other hand, with the development of the single market, the number of cross-border cases may be expected to rise. Cross-border disputes are even more difficult than domestic ones to resolve quickly, cheaply and efficiently. The task of European legislation is to ensure that people are not obstructed in exercising their rights in the European Area of Justice because of discrepancies in the legal systems of the Member States. Many Member States have no special small claims procedure. Separate, simplified small claims procedures are in place in Spain, Ireland, Sweden and the United Kingdom.

4.1.3. The real difficulty in establishing a small claims procedure will be to weigh the requirement for speed and efficiency on the one hand, against guarantees for a fair procedure under the rule of law on the other. With the rule of law in mind, it will be impossible not to grant litigants at least the right either to demand the transfer of the case to ordinary civil proceedings with all the attendant procedural safeguards, or to appeal against the judgement brought under the small claims procedure.

Scope (questions 34-36)

4.1.4. A threshold must be set on the amount of the claim. Deciding on whether to pursue a simplified procedure case-by-case would be incompatible with the need for legal certainty. The threshold must be harmonised, as that is the only way to facilitate cross-border cases. In Member States that have a simplified procedure, thresholds vary very widely, with some topping EUR 8000. A specific answer to this question can only be given once the broad shape of the small claims procedure is known.

4.1.5. Member States that have a simplified procedure do not generally confine it to one particular type of claim. It would help simplify these procedures if they applied only to monetary claims. However, that would not satisfy the need to provide legal protection for small, everyday disputes, as these are not confined to monetary claims alone. Care should be taken to ensure that the small claims procedure is confined to disputes that fall within the remit of the ordinary courts in all Member States.

Transfer to an ordinary procedure (question 37)

4.1.6. If the Commission decides to introduce an obligatory small claims procedure, it must be possible to transfer the case to an ordinary procedure. That is the only way not to restrict litigants in their right to a procedure that meets the standards of the rule of law and is covered by all the attendant procedural safeguards.

Procedural issues (questions 38-42)

4.1.7. Using a standard form would further help make the procedure uniform. On the other hand, the possibility of introducing the procedure by an oral declaration could simplify it further. No restriction should be placed on the litigants' right to be represented by a lawyer, or on existing rights enjoyed by consumer protection organisations in some Member States to provide consumer advice and represent consumers in court. In this context, the Committee proposes that checks be carried out to determine whether there are cases in which the collective enforcement of claims (e.g. class actions) would also appear to be advisable, in connection with small claims, too. Where the litigants are not represented by a lawyer, the court has an increased duty of care towards them, bearing in mind the need for judicial impartiality. The court should therefore be obliged to provide information and advice in order to ensure that the litigants do not, by their conduct, delay the procedure unduly, and that they do not forfeit their rights out of ignorance. It must be left to the discretion of the court on a case-by-case basis to decide whether and to what extent it meets its obligation to inform and advise the parties. The provision for parties to be represented in court by non-lawyers should be abandoned. It is not clear how that could be in the best interests of the parties, the court or procedural efficiency.

4.1.8. In many Member States, certain economic sectors have - sometimes at great effort -established facilities for alternative dispute resolution (ADRs). These facilities generally enjoy public acceptance. The Commission itself has pledged to create a favourable environment for ADRs(17). Not least as a result of that, ADRs also work well in cross-border cases. It thus seems superfluous for European legislation to introduce further dispute resolution methods as a prelude to the small claims procedure. Moreover, practical experience has shown that mandatory dispute resolution arrangements upstream of proceedings do not necessarily make the proceedings any quicker. Such arrangements should therefore remain voluntary.

4.1.9. Less strict procedural rules may help slim down the small claims procedure. Looser arrangements might be introduced, for instance, for the taking of evidence. Doubts about such developments could be assuaged if European legislation (i) opts for a voluntary small claims procedure, (ii) provides for the possibility of transfer to ordinary proceedings at a later stage or (iii) allows all avenues for appeal against the judgement delivered under a small claims procedure. However, in any relaxation of procedures, care must always be taken to ensure compliance with minimum standards underpinned by the rule of law.

4.1.10. A written procedure may cause difficulties and delays. In cross-border cases, a written procedure may obviate the need for the litigants to travel to court, but such a procedure does seem questionable when, as is so often the case, the debtor in particular is not in a position to present his case satisfactorily in writing. The court will be able to meet its obligations to provide information and advice much more effectively through personal discussions with the parties. Hence, the written procedure should not be made mandatory. If both litigants are in agreement, no obstacles should, however, be placed in the way of the use of the written procedure.

Judgement, costs, appeals (questions 43-45)

4.1.11. To simplify and speed up matters, a relaxation of the rules concerning the judgement in a small claims procedure appears tempting. However, for any judgement that may be subject to appeal, the reasons on which the judgement is based are essential as, without them, the judgement cannot be reviewed. This applies regardless of whether one of the litigants actually lodges an appeal. The decision in this regard in itself requires that the party concerned be in a position to weigh up the chances of any appeal being successful, and that is only possible with knowledge both of the facts of the case as deemed relevant by the court, and of the legal assessment.

4.1.12. European legislation should not lay down a mandatory time limit for completion of the procedure. For one thing, a mandatory time limit fails to cater for the differing degrees of complexity of the procedures. For another, the case might conceivably be delayed for reasons outside the responsibility of either the litigants or the court. That said, time limits for the delivery of the judgement might be a possibility. It makes sense to give the litigants and the court a general obligation to conduct the proceedings quickly. However, unless penalties are incurred for non-compliance, such an obligation is usually little more than a moral appeal, and it would be illusory to think otherwise.

4.1.13. With regard to restricting the possibility to appeal in small claims procedures, a distinction must be made between whether the procedure introduced is mandatory or voluntary. If it is mandatory, no restrictions may be placed on the possibility to appeal against the judgement, as it would be incompatible with the rule of law to irrevocably deny litigants some of the procedural safeguards available in ordinary proceedings. This is especially true if there is no possibility of transferring to ordinary proceedings. Even if an optional small claims procedure is introduced, the litigants must still be able to decide for themselves whether to lodge an appeal. Otherwise, litigants might opt for ordinary proceedings for that reason alone. Limiting the reimbursement of costs may result in litigants feeling that this prevents them from enforcing claims below a certain level under this procedure. If the procedure is optional, litigants could opt for ordinary proceedings solely on the grounds that costs are not reimbursed.

Brussels, 18 June 2003.

The President

of the European Economic and Social Committee

Roger Briesch

(1) The Committee has already highlighted this need on several occasions, most recently in its opinion on the Proposal for a Council Regulation creating a European Enforcement Order for uncontested claims (COM(2002) 159 final - 2002/0090 (CNS)), OJ C 85, 8.4.2003, p. 1.

(2) See the Committee opinion on the Green Paper on access of consumers to justice and the settlement of consumer disputes in the Single Market; OJ C 295, 22.10.1994, p. 1 et seq. and the Committee opinion on the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, OJ C 117, 26.4.2000, p. 6.

(3) See the Resolution of the European Parliament on the Commission communication entitled "Action plan on consumer access to justice and the settlement of consumer disputes in the internal market" (COM(96) 13 final, OJ C 362, 2.12.1996, p. 275.

(4) See the footnotes below.

(5) Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (OJ L 12, 16.1.2001, p. 1); Committee opinion: OJ C 117, 26.4.2000, p. 6.

(6) Proposal for a Council Regulation creating a European enforcement order for uncontested claims, COM(2002) 159 final of 18.4.2002 (OJ C 203 E, 27.8.2002, p. 86); Committee opinion: OJ C 85, 8.4.2003, p. 1.

(7) Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters (OJ L 160, 30.6.2000, p. 37); Committee opinion: OJ C 368, 20.12.1999, p. 47.

(8) Council Regulation (EC) No 1206/2001 of 28.5.2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, p. 1); Committee opinion: OJ C 139, 11.5.2001, p. 10.

(9) Commission Recommendation of 30.3.1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (98/257/EC), OJ L 115, 17.4.1998, p. 31.

(10) Council Decision of 28.5.2001 establishing a European judicial network in civil and commercial matters (2001/470/EC) (OJ L 174, 27.6.2001, p. 25); Committee opinion: OJ C 139, 11.5.2002, p. 6.

(11) (N.B.: Up to now only an internet version is known to be available).

(12) Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation (COM(2002) 654 final).

(13) Communication from the Commission to the Council and the European Parliament on European contract law (2001/C 255/01) (OJ C 255, 13.9.2001, p. 1); Committee opinion: OJ C 241, 7.10.2002, p. 1.

(14) OJ L 61, 10.3.1990, p. 14; Committee opinion: OJ C 337, 31.12.1988, p. 1.

(15) OJ L 95, 21.4.1993, p. 29; Committee opinion: OJ C 159, 17.6.1991, p. 34.

(16) Proposal for a Council Regulation creating a European Enforcement Order for uncontested claims, COM(2002) 159 final, 18.4.2002.

(17) See the Committee's Opinion on the Green Paper on alternative dispute resolution in case and commercial law, OJ C 85, 8.4.2003.