Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure  (COM(2005) 87 final — 2005/0020 (COD))
Date: 2006-02-14
Institutions: European Economic and Social Committee
Subjects: civil law, civil proceedings, commercial law, debt, judicial cooperation in criminal matters in the EU

11.4.2006

EN

Official Journal of the European Union

C 88/61

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the
European Parliament and of the Council establishing a European Small Claims Procedure

(COM(2005) 87 final — 2005/0020 (COD))

(2006/C 88/14)

On 4 April 2005 the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 23 January 2006. The rapporteur was Mr Pegado
Liz.

At its 424th plenary session, held on 14 and 15 February 2006 (meeting of 14 February), the European
Economic and Social Committee adopted the following opinion unanimously.

1. Gist of the proposal, conclusions and recommendations

2. Introduction. Aim of the proposal

1.1 With its Proposal for a Regulation establishing a Euro-
pean Small Claims Procedure (1), the Commission is pursuing a
number of initiatives gradually creating and developing an area
of freedom, security and justice, removing barriers and helping
to make it easier to conduct civil proceedings at European
level, as specifically laid down in its Action Plan adopted by the
Justice and Home Affairs Council of 3 December 1998 (2).

In line with its previous positions on all Commission
1.2
and Council initiatives seeking to consolidate a genuine Euro-
pean area of justice, the EESC welcomes and supports the
proposal. The proposed legal basis is sound, enabling the
procedure to be applied not only to cross-border disputes but
also to domestic ones (where its application is optional), with
the aim of ensuring that parties have equal rights to fair, expe-
ditious, accessible dispute-settlement proceedings in all
the
Member States.

1.3
The EESC congratulates the Commission on the techni-
cally and legally sound nature of the proposal, which is clear
from its article-by-article comments (3). It welcomes the balance
struck between the different interests concerned, and the addi-
tional provision of a well-structured, well-thought out and
clearly-presented impact assessment (4).

1.4
The sole purpose of the EESC's general and specific
comments is to enhance the proposal and to fine-tune some of
its mechanisms, so as to maximise its effectiveness and provide
the highest possible guarantees of respect for the rights of the
parties involved.

This proposal fulfils one of the key goals of the Green
2.1
Paper of 20 December 2002 (5); the other goal of creating a
European order for payment procedure was addressed a year
ago (6) by a Commission proposal for a regulation, on which
the EESC issued an opinion (7).

taken into account

the Commission has

2.2 With a view to establishing a European small claims
the
procedure,
comments and recommendations made by the European Parlia-
ment and the EESC respectively regarding the aforementioned
Green Paper, and is now presenting a proposal for a regulation
seeking to establish a single small claims procedure that can be
applied throughout the European Union. The procedure will be
optional, and can be used both for cross-border disputes and
for internal cases within the Member States.

2.3
The Commission's initiative is prompted by the fact that
Member States' civil procedural law systems differ, and that the
high costs and the delays entailed in cross-border small claims
litigation,
in particular, are disproportionate to the sums
involved.

2.4
The Commission has decided to extend the scope of the
in order to ensure
proposed procedure to national disputes,
equal treatment for all and to prevent distortion of competition
between economic operators. This is in line with the EESC's
opinion on the Green Paper, whilst at the same time ensuring
that the procedure is compatible with the principles of propor-
tionality and subsidiarity.

the
The EESC thus urges the Commission to adopt
1.5
recommendations set out below and calls upon the Member
States to endorse the Commission's proposal with its current
scope and content.

The text makes it quite clear that the proposed proce-
2.5
dure is optional, as the creditor can always opt for a different
procedure provided for by domestic law. This, too, is in line
with the EESC's opinion.

(1) COM(2005) 87 final of 15.3.2005.
(2) OJ C 19 of 23.1.1999.
(3) See Annex SEC(2005) 352 of 15 March 2005.
(4) See Annex SEC(2005) 351 of 15 March 2005.

(5) COM(2002) 746 final of 20.12.2002 – EESC rapporteur: Frank von

Fürstenwerth – Opinion in OJ C 220 of 16.9.2003.

(6) COM(2004) 173 final of 19.3.2005.
(7) EESC Opinion in OJ C 221 of 8.9.2005.

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The Commission observed the following fundamental

2.6
principles when defining the procedure:

a) the procedure should be as simple as possible and based on

the use of standard forms;

b) short time frames making the procedure very rapid;

c) as a general rule, written procedure without an oral hearing;
if the court deems it necessary, a hearing may be conducted
via an audio, video or email link;

d) sufficient guarantees of an adversarial process and of the

presentation of evidence;

e) wide degree of discretion for judges regarding the assess-

ment and taking of evidence;

f) a judgment should be enforceable, notwithstanding appeal,
it should be guaranteed
in accordance with national
that the judgment will be enforced and recognised in any
Member State, without
the need for an exequatur and
without any possibility of its recognition being opposed;

law;

g) representation by a lawyer not to be compulsory.

3. Precedents and parallel initiatives

For a long time, the Community institutions, including
3.1
the European Parliament (8) and the EESC (9), have been produ-
cing documents expressing their desire to see the standardisa-
tion and simplification of civil procedures, in order to ensure
faster, more effective implementation of justice.

3.2
Echoing these concerns, which have mainly been
expressed by economic operators, professionals and consumers,
the Commission, too, has long been reflecting on the best way
to proceed;
the progress made in the pioneering field of
consumer law has been particularly significant (10).

(8) Cf. EP Resolutions A2-152/86 of 13.3.1987, A3-0212/94 of

22.4.1994 and A-0355/96 of 14.11.1996.

(9) Opinions on the Green Paper on access of consumers to justice
(rapporteur: Mr Ataíde Ferreira, OJ C 295 of 22.10.1994) and on
the Single Market and consumer protection: opportunities and
obstacles (rapporteur: Mr Ceballo Herrero, OJ C 39 of 12.2.1996).

(10) In this connection, cf. the following documents:
redress and the
— Commission memorandum on consumer
Supplementary Communication on the
subject of
same
12.12.1984 (COM(84) 692) and 7.5.1987 (COM(87) 210)
respectively

— Commission Communication on A new impetus for consumer
protection policy (C0M(85) 314 final of 23.7.1985, OJ C 160
of 1.7.1985)

— Commission Action Plan of 14 February 1996 (COM(96) 13

final)

— Commission Communication on Towards greater efficiency in
obtaining and enforcing judgments in the European Union
(COM(97) 609 final of 22.12.1997, OJ C 33 of 31.1.1998)
— Green Paper on access of consumers to justice and the settle-
ment of consumer disputes in the single market (COM(93) 576)
— Green Paper on alternative dispute resolution in civil and

commercial law (COM(2002) 196 final of 19.4.2002).

3.3
However, with the publication of the Green Paper on a
European order for payment procedure and on measures to
simplify and speed up small claims litigation it was clear that
the issue was being addressed with a view to a potential legisla-
tive initiative. The Green Paper accurately pinpointed the key
questions to be tackled by any future regulations in this
area (11).

This initiative is part of a series of extremely important
3.4
measures which have been taken in the field of judicial coop-
eration in civil matters over recent years (12).

(11) It posed ten questions, concerning: a threshold or ceiling value for
the type of claims; whether the procedure should be
claims;
optional or obligatory; use of a standard form; representation of,
and assistance to, litigants; alternative dispute resolution; taking of
evidence; the content of the judgment and the time frame for its
delivery; costs; and the possibility of appeal.

(12) These include:

— Commission Recommendation of 12 May 1995 on payment
periods in commercial transactions and the related Commission
Communication (OJ L 127 of 10.6.1995 and OJ C 144 of
10.6.1995 respectively)

— Directive 98/27/EC of 19 May 1998 on injunctions for the
protection of consumers' interests (OJ L 166/51 of 11.6.1998)
— Directive 2000/35/EC of 29 June 2000 on combating late
payment in commercial transactions (OJ L 200 of 8.8.2000)
— Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (Brussels I)
(OJ L 12 of
16.1.2001). EESC rapporteur: Mr Malosse – Opinion in OJ C
117 of 26.4.2000

— Regulation (EC) No 805/2004 of the European Parliament and
of the Council of 21 April 2004 creating a European Enforce-
ment Order for uncontested claims (OJ L 143 of 30.4.2004.
EESC rapporteur: Mr Ravoet – Opinion in OJ C 85 of 8.4.2003
— Council Regulation (EC) No 1206/2001 of 28 May 2001 on
cooperation between the courts of the Member States in the
taking of evidence in civil or commercial matters (OJ L 174 of
27.6.2001). EESC rapporteur: Mr H. Bataller – Opinion in OJ C
139 of 11.5.2001

— Programme of measures to implement the principle of mutual
recognition of decisions in civil and commercial matters (OJ C
12 of 15.1.2001)

— Council Regulation (EC) No 1346/2000 of 29 May 2000 on
(OJ L 160 of 30.06.2000). EESC

insolvency proceedings
rapporteur: Mr Ravoet - Opinion in OJ C 75 of 15.3.2000
— Council Regulation (EC) No 1347/2000 of 29 May 2000 on
jurisdiction and the recognition and enforcement of judgments
in matrimonial matters and in matters of parental responsibility
for children of both spouses; idem. EESC rapporteur: Mr Braghin
– Opinion in OJ C 368 of 20.12.1999

— Council Regulation (EC) No 1348/2000 of 29 May 2000 on
the service in the Member States of judicial and extrajudicial
documents in civil or commercial matters; idem. EESC rappor-
teur: Mr H. Bataller – Opinion in OJ C 368 of 20.12.1999
— Council Decision of 28 May 2001 establishing a European Judi-
cial Network in civil and commercial matters (OJ L 174 of
27.6.2001). EESC rapporteur: Mr Retureau – Opinion in OJ C
139 of 11.5.2001

— Communication from the Commission concerning a New Legal
Framework for Payments in the Internal Market (COM(2003)
718 final of 2.12.2003). EESC rapporteur: Mr Ravoet –
Opinion in OJ C 302 of 7.12.2004.

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3.5
Regulation (EC) No 805/2004 of 21 April 2004 creating
a European Enforcement Order for uncontested claims (13) and
the aforementioned Commission proposal on an order for
payment procedure deserve special mention. They are particu-
larly relevant when considering the current Commission
proposal, in that the two texts address two aspects of the same
situation — the need for simpler, more effective civil law enfor-
cement in a single area of justice.

4. Legal instrument and basis

4.1
In line with most of the initiatives adopted in this field,
the Commission has opted to propose the adoption of a regu-
lation, taking Articles 61(c) and 65 of the Treaty as a basis.

The EESC fully supports the proposal.

4.2
In its earlier
opinions on the Green Paper and on the order for payment
procedure, it firmly endorsed the adoption of a regulation.

It also fully endorses the Commission's choice of legal
4.3
basis, which goes beyond a merely formal interpretation of the
relevant legal concepts. This is the only way to fulfil the objec-
tive of creating a single EU judicial area. The Commission
should be particularly congratulated on producing a solid, tech-
nically and legally sound justification for action at Community
level, with due regard for the subsidiarity and proportionality
principles.

4.4
The EESC also reiterates its view that an initiative of this
type and scope, involving considerable investment, is only justi-
fied if it also applies (albeit optionally) to internal disputes in
the Member States. It thinks that limiting it to cross-border
disputes could cast doubt on its relevance, or even on the need
for it at all (14).

5. General comments

The EESC welcomes the draft regulation, which has
5.1
incorporated most of its comments regarding 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).

5.2
In its opinion on the Green Paper, the EESC stated:
‘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’.

(13) COM(2002) 159 final (OJ C 203 of 27.8.2002). EESC rapporteur:

Mr Ravoet – Opinion in OJ C 85 of 8.4.2003.

(14) Since, as the impact assessment clearly showed, the number of
purely cross-border small claims disputes will always be relatively
small, even in the foreseeable future.

5.3
The EESC believes that, although the proposal requires
minor improvements, it does represent a balanced response to
the requirements of settling claims rapidly, accessibility in
the parties
terms of cost and guaranteeing the rights of
concerned.

if

However,

the new system is to succeed fully in
5.4
providing fair, rapid, inexpensive dispute settlement, it is essen-
tial — and the EESC points this out in particular — that the
public, and not just the legal profession, are made aware of it
by means of an information campaign which stresses the bene-
fits of using it but also its limitations compared to ordinary,
conventional systems (costs, provision of evidence, appeals,
assistance from lawyers, representation by third parties, time
limits etc.).

In addition,

5.5
if the system is to be successfully imple-
mented in cross-border disputes an effective solution must be
found to the issue of linguistic diversity, and those involved —
courts, professionals, parties in disputes — must be able to
understand the terms used in the procedure accurately: to this
end, a major effort is needed to make the forms used compre-
hensible.

5.6
In keeping with its views repeatedly expressed on the
matter, the EESC reaffirms its commitment to the development
and strengthening of mechanisms for alternative dispute resolu-
tion (ADR), which should set out strict, clearly defined princi-
ples and rules and be harmonised at Community level. A refer-
ence to these procedures could be included in the proposal's
Explanatory Memorandum.

6. Specific comments

6.1 Article 2 — Scope

that

The EESC believes

it believes that, where appeal

6.1.1
the proposed ceiling of
EUR 2 000 is clearly insufficient to cover a substantial number
of situations, given the current value of goods and services.
is provided for
Furthermore,
(Articles 13, 15 and 16),
least
EUR 5 000. From a purely economic viewpoint, and in the
light of the cost estimates contained in the extended impact
assessment, raising the ceiling would contribute to a more-
than-proportional reduction in costs.

the figure should be at

6.1.2
It is not clear what is meant by the statement that the
regulation shall not apply, ‘in particular’, to revenue, customs
or administrative matters. As this refers to parties who are
being excluded from the scope of the regulation, the list should
— from the legal point of view — be limitative and not indica-
tive. This exclusion should therefore be deleted from para-
graph 1 (last sentence) and included in the list in paragraph 2.

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6.1.3
Nor is it clear why arbitration has been listed in
Article 2(2)(e), as it is in no way related to the subjects listed in
the other subparagraphs. Arbitration is an alternative form of
dispute resolution which, by its very nature, is clearly excluded
and does not need to be mentioned here. The EESC suggests
that the Commission delete this subparagraph.

6.1.4
The EESC regrets Denmark's decision — for well-
known general reasons regarding matters of this nature (15) —
to completely opt out of
regulation.
However, it hopes that, in future, the constraints hindering full
creation of a single European area will be overcome (16) and it
is pleased to learn that the United Kingdom and Ireland are
looking into the possibility of joining the scheme, as they have
done in the case of similar initiatives in the past.

implementing the

6.2 Article 3 — Commencement of the procedure

The EESC considers that the question of the interrup-
6.2.1
tion of periods of prescription should be left to the legislation
of the Member States. If it is not, Article 3(4) should take
account of the various possible ways of submitting the claim,
and should stipulate that the period of prescription is inter-
rupted from the date on which the claim form is sent (proof of
dispatch would be required, as delays en route may be consid-
erable, particularly in cross-border disputes) (17).

6.2.2
The EESC welcomes the provision in Article 3(6)
giving the claimant the opportunity to rectify or complete the
form. The EESC made a similar suggestion when it discussed
the Proposal for a Regulation creating a European order for
payment procedure, and it is therefore very pleased to see that
the opportunity has been included in this regulation. However,
it thinks that a reasonably short deadline should be set for such
corrections.

6.2.3
The EESC is concerned about the provision laid down
in the last part of Article 3(7). Who will actually provide the
‘practical assistance’? Will they be properly qualified to do so?
The EESC would not necessarily limit this role to lawyers and
solicitors, but would point out
the ‘practical aspects’
mentioned may include matters which require legal training.
Moreover, the people concerned must be prepared to perform
this duty without payment, and it may be difficult to find
unpaid volunteers for this in many Member States' courts.
Legal professionals might also view it as non-permitted
procuration that would infringe their ethics codes.

that

(15) Under Article 1 of the Protocol on the position of Denmark,
appended to the Treaty of Amsterdam, Denmark does not take part
in the adoption by the Council of measures proposed under Title
IV of the Treaty in the field of justice and home affairs.

(16) As has already happened with the recognition and enforcement of
judgments in civil and commercial matters (Council Decision of
20.9.05, OJ L 299 of 16.11.05).

(17) As is already happening with the Commission proposal amending

the regulation on the service of judicial documents.

6.3 Article 4 — Conduct of the procedure

6.3.1 While it understands the reasons for opting for a
written procedure as a general rule, the EESC points out the
benefits of hearings, not least in order to facilitate attempts at
settlement and as a way of safeguarding the fundamental prin-
ciples enshrined in Article 6 of the European Convention on
Human Rights and Article 47 of the Charter of Fundamental
Rights of the European Union.

6.3.2
terclaim, even if it concerns a different case.

Article 4(5) and 4(6) allow the submission of a coun-

6.3.2.1
In procedures like this which are intended to be
swift and extremely informal, the EESC has serious misgivings
about allowing the submission of a counterclaim without this
automatically turning the procedure into an ordinary one.

6.3.2.2
The EESC thinks that if the counterclaim does not
arise from the same legal relationship as the claim, it should
not be admissible in any circumstances.

6.3.2.3
At all events, the EESC thinks that if a counterclaim
is allowed it should not exceed the ceiling set for the proce-
dure, as this would subvert the objectives of the procedure.

6.3.3
Article 4(7) states that if a document is submitted in a
language other than those provided for in Regulation No
1348/2000, the party is to be ‘advised’ to provide a translation.
If the party fails to do this, what will be the consequences for
the claim and for the procedure? This point needs clarification:
we are dealing with a regulation, so the Member States cannot
be expected to remedy any shortcomings in it, unless the
matter is already covered by the application of the general prin-
ciple laid down in Article 17.

6.4 Article 5 — Conclusion of the procedure

Article 5(1)(c) of the Portuguese version contains the
6.4.1
words ‘citar as partes’. In legal terms, however, there is a differ-
ence between a citação and a notificação; strictly speaking, the
present case involves a notificação, not a citação. The EESC there-
fore proposes that
the Commission amend the Portuguese
version of this subparagraph, replacing the word ‘citar’ with the
word ‘notificar’ (*).

6.4.2
must be set.

A maximum time limit for convening the hearing

6.5 Article 6 — Hearing

6.5.1
new technologies to be used for hearings, when appropriate.

The EESC welcomes the adoption of rules allowing

(*) Translator's note: The author is making the distinction between the
concepts of service of notice and service of a summons, saying that
the concept which applies here is service of a summons. The
English version uses the phrase ‘summon the parties’.

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6.5.2
However, the EESC draws the Commission's attention
to the fact that, since the exact field of application of each of
these new technologies is not defined, their use in certain situa-
tions could jeopardise defence guarantees and fundamental
procedural principles such as security, certainty, an adversarial
process and immediacy. This could occur, for instance, if email
were used to question a witness or take the evidence of an
expert.

6.5.3
The EESC points out that it is necessary to use means
such as electronic signatures to secure authentic statements.
The necessary precautions must be taken to ensure that local
courts or tribunals have the technical infrastructure to send a
legally valid statement
including foreign
courts (sending the statement by secure email, using audio,
video or email conferences to take evidence).

to another court,

6.8 Article 9 — Remit of the court or tribunal

6.8.1
Although, at first glance, the text may seem to suggest
otherwise, the Commission has confirmed that the approach
taken by the proposal is not that disputes are to be settled, as
well as on the basis of strict legality, on the basis of considera-
tions of equity (‘ex aequo et bono’) where appropriate. This is
particularly important in cases of a non-pecuniary nature. This
oversight is to be regretted: the possibility should be provided
for, with the proviso that its full implications must be clearly
explained to the parties in advance.

6.8.2
Article 9(3).

The comments made in point 6.2.3 also apply to

6.5.4
The EESC therefore urges the Commission to change
the text of Article 6(1) so as to give a more precise definition
of its scope, stating in which actions and situations audiovisual
media or email may be used.

6.8.3
As regards Article 9(4), the EESC thinks that the court
or tribunal should always seek to reach a ‘settlement’. The
words ‘whenever appropriate’ should therefore be deleted.

6.5.5
At the same time the EESC fails to see why, if both
parties agree that the technical means available are reliable,
either party should be allowed to refuse to use them. It there-
fore proposes that this provision be redrafted so as to restrict
the parties' right of refusal to cases in which the technical
means do not provide the necessary guarantees of reliability
and equal treatment.

6.9 Article 10 — Judgment

6.9.1
Article 10(2) should specify that if the parties cannot
be present, they should be duly represented, as provided for in
Article 6(2).

6.6 Article 7 — Taking of evidence

6.10 Article 11 — Service of documents

6.6.1
The EESC is concerned about the possibility of taking
evidence by telephone. The only way of preserving the integrity
of statements given over the telephone is to record and subse-
quently transcribe them. The EESC therefore urges the Commis-
sion to exclude the use of the telephone as a valid means of
taking evidence where it is not possible to record and tran-
scribe the statements made.

6.6.2
The EESC recommends that the phrase ‘in exceptional
circumstances’ be deleted from Article 7(2) because it conveys
a subjective approach and because, in any case, the decision of
whether to take evidence from ‘expert witnesses’ is the judge's
alone.

6.7 Article 8 — Representation of parties

6.7.1
As the proposal states that the parties may be repre-
sented by persons who are not necessarily lawyers, the EESC
believes that explicit provision should be made for consumer
associations to represent consumers in consumer disputes, and
for professional associations to represent their members. Repre-
sentation of this kind is usual in alternative dispute resolution,
for example, but is not generally provided for in Member
States' procedural laws.

6.10.1
Article 11(2) states that where ‘the address of the
addressee is known with certainty’, simpler means of serving
documents on the parties may be used, such as simple letter,
fax or email.

6.10.2
The EESC draws the Commission's attention to the
fact that the clause ‘the address of the addressee is known with
certainty’ is too vague and could create situations of substantial
legal uncertainty with serious consequences for the parties.

6.10.3
Some Member States have the system of an address
for service: under this system, if the documents are served to
the address for service by a contractual party, they are assumed
to have been received, and there is therefore no need for proof
of receipt. However, the EESC considers that the establishment
of an address for service would not be sufficient to fulfil the
requirement of knowing an address with certainty.

6.10.4
The EESC therefore proposes, as stressed in its
opinion on the aforementioned Green Paper and its opinion on
an order for payment procedure, that the use of methods of
service by the parties for which there is no proof of receipt or
for which proof cannot be obtained — e.g. an ordinary letter
— should not be admissible.

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6.11 Article 12 — Time limits

lawyer), the procedural arrangements of the Member States
requiring representation by a lawyer in appeal cases will apply.

6.11.1
The EESC believes that, in a procedure of this kind,
the court or tribunal should not be able to extend time frames
indefinitely. The EESC suggests that the Commission set a limit
for the extension of a time frame, and allow time frames to be
extended only once.

6.13 Article 14 — Costs

6.11.2
The EESC deems the provision in Article 12(2) to be
equally inadmissible. Indeed, in view of the way that courts and
tribunals work, with penalties for failure to comply with time
limits rarely in place, a provision of this kind virtually guaran-
tees that the procedure will fail. The EESC urges the Commis-
sion to delete Article 12(2).

6.12 Article 13 — Enforceability of the judgment

The provisions about costs are generally sound.
6.13.1
However,
the use of vague,
it should be pointed out that
subjective expressions such as ‘unfair or unreasonable’ does not
tie in well with the harmonisation directive. The costs of the
procedure are a crucial factor, and imprecise terms could lead
to disparities.

The EESC would also repeat a suggestion made by it
6.13.2
regarding the order for payment procedure, namely that it
should be specified that Member States' national
legislation
transposing Directive 2003/8/EC of 27 January 2003 on access
is applicable in such
to justice in cross-border disputes
cases (19).

6.12.1
The EESC queries whether it is necessary to provide
for appeal in a procedure of this kind. Indeed, either the ceiling
for the procedure should be substantially higher than that
proposed by the Commission — e.g. EUR 5 000 — in which
case the possibility of appeal would be justified by the value of
the claim, or, if the value is lower (e.g. up to EUR 3 500) no
appeal should be possible (18).

6.13.3
The EESC therefore believes, in this connection, that
it is essential to lay down a requirement for the parties to be
informed in advance of the system of costs and reimbursement
(where this exists) of lawyers' fees, and of how it compares
with other judicial procedures which may be applicable, so that
the parties are given a genuine choice.

6.12.2
It should also be made clear that the reference to the
possibility of appeal refers only to ‘ordinary’ appeals, and not
to cases in which domestic law invariably provides for appeals
if the judgment is defective in some way, irrespective of the
value of the claim.

6.12.3
The EESC therefore again urges the Commission to
raise the ceiling for claims covered by this procedure to at least
EUR 5 000. However,
if the Commission opts for a figure
equal to or less than EUR 3 500 it should not provide for
appeal. Should a ceiling higher than EUR 3 500 be set, provi-
sion for appeal would be admissible in disputes where the
claim is higher than this ceiling.

6.12.4
The EESC draws the Commission's attention to the
fact that, if appeal is provided for, the law will also have to
permit the court or tribunal to suspend implementation of the
judgment in appeal cases in which immediate implementation
could have serious, unnecessary harmful consequences for the
appellant or would make the appeal itself pointless. In these
cases, for instance, lodging of security could be required as a
condition for suspending implementation.

6.14 Article 16 — Review of the judgment

6.14.1
The EESC points out that no time frame has been
laid down for exercising this right and that a vague phrase such
as ‘act promptly’ is not admissible. It therefore believes that, if
the intention is truly to safeguard the practical means of
defence open to the defendant (where the form has been incor-
rectly served or the defendant has been unable to defend
himself for reasons of force majeure without any fault on his
part), a precise time limit within which the defendant can ask
for a judgment to be reviewed must be specified, without
lengthening the procedure unduly,
in order to avoid actions
obstructing service or delaying tactics.

6.15 Annexes: Forms

6.15.1
The proposed system rests on the use of the forms
reproduced in annexes I, II and III. The procedures will only
run smoothly if the forms serve the purpose for which they are
intended.

6.12.5
Lastly, if appeal is allowed, it should be made clear
that, by way of exception to the provisions of Article 8 (which
state that the party does not have to be represented by a

(18) This is the case in a number of Member States; in Portugal, for
instance, as a general rule, appeal is not possible if the value of a
claim is less than EUR 3,750.

6.15.2
tiveness and practicality of
disputes.

The EESC has well-founded doubts about the effec-
the forms used in cross-border

(19) OJ L 26/41 of 31.1.2003.

11.4.2006

EN

Official Journal of the European Union

C 88/67

6.15.3
For example: if an Italian company which is owed
money by a Polish consumer submits a claim in an Italian
court, will the Polish consumer receive the notification and the
copy of the claim form in Italian or Polish? If it is in Italian,
what guarantee is there that the consumer will understand it
and be able to decide whether to make a statement of defence?
If it is in Polish, who will be responsible for translating it? And
who will bear the cost of all this?

6.15.4
The claimant does not merely have to tick boxes in
the form; he also has to add written information. Who will be
responsible for translating this? And who will certify that the
translation is accurate?

6.15.5
Regulation No 1348/2000 of 29 May 2000 on the
service in the Member States of judicial and extrajudicial docu-
ments in civil or commercial matters does not allay these
concerns, given the rather informal and unhurried nature of
the procedure under examination.

Indeed, even if

6.15.6
the aforementioned hypothetical
Polish consumer were to receive the notification in his mother
tongue,
in which language would he reply? Who would
provide a translation from Polish into Italian? Which language

Brussels, 14 February 2006.

will he use for the counterclaim? How will it be translated? In
any such situation, barriers would be created that would
adversely affect the swiftness and cost of the procedure.

6.15.7
The EESC therefore asks the Commission to consider
the most effective way of ensuring that the use of these forms
in cross-border disputes does not jeopardise the swiftness and
cost of the procedure, or the parties' right of defence.

6.15.8
complicated to be filled in by people without legal training.

The EESC also thinks that all

the forms are too

A number of terms (statutory interest rate; % above
6.15.9
the base rate of the ECB; cancellation of sale; honouring of
commitments; default
could be
unclear to the layman. As the Commission proposes to make
legal representation non-mandatory, action is needed to ensure
that the users of the forms understand them and can fill them
in correctly.

counterclaim)

judgment;

Lastly, since the possibility of

6.15.10
represented by a lawyer or a third party is not excluded,
should be explicitly provided for in the forms.

the parties being
it

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND