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)
Date: 2003-06-18
Institutions: European Economic and Social Committee
Subjects: civil law, civil proceedings, commercial law, debt, drafting of EU law, injunction

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4.13.
In order to avoid subjecting investment brokers,
particularly small and medium-sized enterprises, to unjustified,
excessive requirements, the Directive should not apply to firms
which merely receive and pass on orders for shares in collective

investment undertakings, without holding their customers’
money, and which therefore cannot at any time enter into a
debtor relationship vis-à-vis their customers.

Brussels, 18 June 2003.

The President

of the European Economic and Social Committee

Roger BRIESCH

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

The European Economic and Social Committee (EESC)
1.1.
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

( 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.

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.

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

(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.

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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 (1).
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 cooper-
ation 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.

( 1) 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.

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 (2).

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 (3),

— the proposal for a Council Regulation creating a European

enforcement order for uncontested claims (4),

— the Council Regulation on the service in the Member
States of judicial and extra-judicial documents in civil or
commercial matters (5),

— the Council Regulation on cooperation between the
courts of the Member States in the taking of evidence in
civil or commercial matters (6),

— the Council Recommendation on the principles appli-

cable to out-of-court settlement of disputes (7),

— the Council Decision establishing a European judicial

network in civil and commercial matters (8).

(2) See the footnotes below.
(3) Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdic-
tion 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.

(4) Proposal for a Council Regulation creating a European enforce-
ment 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.

(5) 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.

(6) Council Regulation (EC) No 1206/2001 of 28.5.2001 on cooper-
ation 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.

(7) 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.
(8) Council Decision of 28.5.2001 establishing a European judicial
(OJ
network in civil and commercial matters (2001/470/EC)
L 174, 27.6.2001, p. 25); Committee opinion: OJ C 139,
11.5.2002, p. 6.

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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) (1),

— 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 (2).

2.2.4.
of substantive civil law, in particular:

Finally, mention should be made of work in the field

— the Communication from the Commission of 11.7.2001

on European contract law (3),

— the consumer credit Directive (4),

— the Council Directive on unfair

terms in consumer

contracts (5).

All these activities serve two goals: firstly, to establish a
2.2.5.
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.

The substantive observations in the Green Paper
2.2.6.
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 enforce-
ment 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 enforce-
ment order applicable in all Member States without an
exequatur procedure.

3.1.1. C o m m e n t s o n t h e s t r u c t u r i n g o f

t h e

p r o c e d u r e

Scope (question 1)

3.1.2.
Order for payment procedures exist in many EU
Member States and have proved their worth as an instrument

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

available).

( 2) 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).

( 3) 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.

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

31.12.1988, p. 1.

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

17.6.1991, p. 34.

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
legislative bodies to transpose the provisions in
national
legislation. When doing
question into their own national
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.

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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 pro-
cedure 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 pro-
vided 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)

for the EU legislator

it should be sufficient

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
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.

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Content and form of
questions of proof (questions 11-13)

the European order

for payment,

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.

As the order for payment procedure is a summary
3.1.11.
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.
site for the automated processing of applications.

The use of a standard form is an absolute prerequi-

Computer technology and electronic data processing (ques-
tion 14)

The order for payment procedure should be auto-
3.1.13.
that
technologically feasible.
mated wherever
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.

Inevitably,

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

3.1.14.
An examination of content would make the order
for payment procedure disproportionately cumbersome. Spee-
dy 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. With-
out 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
the legal
business matters. The EESC also proposes that
instrument should spell out the consequences of failure to
provide information on appeals.

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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 standardiz-
ing 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 instru-
ment 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)

A uniform time limit should be set to give the
3.1.19.
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
for lodging
payment
opposition has expired, or revoked by virtue of opposition
being lodged. Thought could be given to whether the pro-
cedure 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.

to be delayed until

the time limit

It would be incompatible with broadly held legal
3.1.20.
issued in summary
opinion in Europe if any judgement
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 there-
fore 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 (1) 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.

(1) Proposal for a Council Regulation creating a European Enforce-
for uncontested claims, COM(2002) 159 final,

ment Order
18.4.2002.

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4.1.1.

S t r u c t u r i n g
c l a i m s p r o c e d u r e : s o m e c o m m e n t s

E u r o p e a n

t h e

s m a l l

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 dom-
estic 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 8 000. 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 (1). 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.

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

C 220/12

EN

Official Journal of the European Union

16.9.2003

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 proceed-
ings 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

Brussels, 18 June 2003.

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 manda-
tory 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 proceed-
ings solely on the grounds that costs are not reimbursed.

The President

of the European Economic and Social Committee

Roger BRIESCH