COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 861/2007 of the European Parliament and of the Council establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure
Date: 2013-11-19
Institutions: European Commission
Subjects: administrative formalities, civil procedure, civil proceedings, form, judicial cooperation in civil matters in the EU













EUR-Lex - 52013SC0459 - EN











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52013SC0459

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 861/2007 of the European Parliament and of the Council establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure /* SWD/2013/0459 final */









TABLE OF CONTENTS
1........... Background and policy context....................................................................................... 7
2........... Procedural issues and
consultation of interested parties.................................................... 8
2.1........ Impact assessment study and
expertise............................................................................ 8
2.2........ Consultation of the IAB.................................................................................................. 8
2.3........ Stakeholder consultation................................................................................................. 9
3........... Problem definition......................................................................................................... 10
3.1........ Introduction.................................................................................................................. 10
3.2........ Evaluation of the ESCP regulation................................................................................. 12
3.3........ Problem 1: Limited scope of the
Regulation................................................................... 15
3.4........ Problem 2: Inefficiencies of the
ESCP due to high costs and length of the current procedure in cross-border
cases below €2,000 as well as lack of transparency of litigation costs and
availability of practical assistance   18
3.5........ Problem 3: Limited awareness of
the existence and operation of the procedure............... 23
3.6........ EU right to act.............................................................................................................. 24
4........... Policy objectives for the
revision of the Regulation......................................................... 26
5........... Policy options............................................................................................................... 26
5.1........ Four main options......................................................................................................... 26
6........... Analysis of impacts of the
policy options........................................................................ 30
6.1........ Policy Option 1: Status quo
(Baseline scenario)............................................................. 30
6.2........ Policy Option 3: Revision of the
Regulation.................................................................... 30
7........... Comparison of the options and
summary of the preferred option.................................... 43
8........... Monitoring and evaluation............................................................................................. 48
9........... Annexes....................................................................................................................... 49
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT
Accompanying the document
Proposal for a Regulation of the
European Parliament and of the Council amending
Regulation (EC) No 861/2007 of the
European Parliament and of the Council establishing a European Small Claims
Procedure and Regulation (EC) No 1896/2006 of the European Parliament and of
the Council of 12 December 2006 creating a European order for payment procedure
 Executive Summary Sheet 
 Impact assessment on the Proposal for a Regulation amending Regulation (EC) No 861/2007 on a European Small Claims Procedure  
 A. Need for action 
 Why? What is the problem being addressed? 
 The objective of the current Regulation 861/2007 on European Small Claims Procedure (ESCP) - to improve access to justice in low value cross-border disputes for consumers and SMEs - has not been fully achieved. The following four main problems have been identified: Problem 1:  As the current threshold for small claims is set at €2,000, low value cross-border disputes above €2,000, involving businesses in particular, are excluded. For these claims, the costs and length of litigating is high and disproportionate to the value of the claim. For example, the average cost of litigating a claim of €10,000 (in MS without simplified national procedures for small claims) is estimated to be €3,000 or 30% of the value of the claim. Problem 2: The narrow definition of "cross-border cases" leaves many SMEs and consumers deprived of the benefits they could derive from the ESCP in disputes with a cross-border dimension. Problem 3: The costs and length of the current procedure remain too high and are not transparent. For example, the fact that oral hearings often require the physical presence of the parties imposes travel costs of between €400 and €800. Unnecessary costs are also incurred where there is no on-line facility for payment of court fees. The lack of transparency on court fees in the Member States also leads to costs and delays for the claimant. Problem 4: There is a lack of awareness of the existence and operation of the procedure among interested stakeholders. 
 What is this initiative expected to achieve? 
 The main objectives of this initiative are to provide better access to justice for a wider range of cross-border small value claims and reduce the current economic detriment to SMEs and consumers resulting from expensive litigation. More specifically, the initiative aims at reducing costs and length of litigating small claims disputes, extending the procedure to claims of a small value of SMEs and to all situations having a cross-border element including those which involve parties resident in third countries, simplifying the procedure itself and improving legal certainty and information for consumers and businesses on the procedure. 
 What is the value added of action at the EU level? 
 The need for EU action has already been established in 2007 when the Regulation 861/2007 was adopted. The main rationale for the current action consists in further reducing disproportionate costs of litigation of small claims in cross-border situations within the EU. This objective cannot be achieved by Member States because it concerns a procedure established in a EU Regulation. Action at EU level is necessary to further improve and simplify the European procedure and make it available for more cases, broadening its scope and raising the threshold, for the benefit of consumers and SMEs. 
 B. Solutions 
 What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why? 
 Four main policy options have been considered: status quo, repeal of the Regulation, revision of the Regulation and harmonisation of national small claims procedures through a directive. The option chosen is the revision of the Regulation. Several sub-options have been considered in this option for example: ·         Several sub-options were considered for raising the threshold up to € 5,000, € 10,000 and to beyond € 10,000. ·         Two sub-options have been considered for further supporting the up-take of electronic service, such as imposing an obligation on all Member States to accept such means of service or to allow those who have such systems in place to use them in respect of cross-border small claims. ·         Two sub-options were analysed for addressing the problem of disproportionate court fees, mposing a limit of either 5% or 10%. Harmonising court fees was not a viable option. The preferred option is the revision of the Regulation, consisting of the following elements: (a) Increase of threshold to € 10,000; (b) Extension of scope to cover all disputes having a cross-border element; (c) Simplify several procedural aspects relating to service of documents, oral hearings, court fees, translation requirements, information for citizens and businesses. 
 Who supports which option? 
 The results of a public consultation show that 66% of respondents support an extension of the threshold up to €10,000, 63% are in favour of using electronic means in the course of the procedure and 71% support the idea of courts being equipped with videoconferencing or other electronic communication equipment. Organisations representing EU consumers and EU businesses including SMEs expressed support for raising threshold and bringing procedural improvements leading to more cost savings and reduced length of proceedings. 
 C. Impacts of the preferred option 
 What are the benefits of the preferred option (if any, otherwise main ones)? 
 The combined time and cost savings of the individual elements of the preferred option account for a potential reduction of costs for the parties of about € 325 to 418 million. The reduction in costs related to raising the threshold from the current €2,000 to €10,000 alone is estimated to amount to approximately 233 million euro based on the assumption that 50% court cases concerning claims between € 2,000 and €10,000 in Member States where there is a simplified procedure would be filed under the ESCP. By reducing the disproportionate costs and time of litigation concerning small claims in cases with a cross-border element, the proposed changes would improve access to justice for consumers and businesses. The proposal will have a positive impact with regard to the procedural improvements especially for economically disadvantaged persons, since the existence of disproportionate costs particularly affects this social group: their claims are likely to be small, and the fear of incurring disproportionate costs will prevent them more than anyone else from lodging a claim. The justice systems are also likely to benefit from the simpler, more efficient procedure. 
 What are the costs of the preferred option (if any, otherwise main ones)? 
 Implementation costs may include € 500 per competent court for the purchase of teleconferencing equipment or Skype-like Internet facility.  The costs of introduction of bank transfer or on-line debit/credit card payment methods may differ depending on the administrative organisation of the court systems in each Member State. It is estimated that a fixed cost of € 14,400 is necessary. The benefits related to the distance payment and electronic communications may have less impact on the elderly, since they have a lower absorption of Internet and electronic communication means. At the same time, they would benefit the most from such distance communication means as they have reduced mobility. There are no significant direct negative impacts in the economic, social or environmental areas. 
 How will businesses, SMEs and micro-enterprises be affected? 
 Businesses, in particular SMEs and micro-enterprises will benefit from the fact that by raising the threshold more of their cross-border claims could be filed under the simplified European procedure. However, all stakeholders, business as well as consumers will benefit from the more cost-effective litigation of small claims. 
 Will there be significant impacts on national budgets and administrations? 
 Implementation costs depend on the number of courts competent for ESCP applications and on the existent level of implementation of distance means of communication and on-line payment of court fees may include € 500 per competent court for the purchase of teleconferencing equipment or Internet connection.  The costs of introduction of bank transfer methods of payment are negligible. Cost of introducing on-line credit card payment methods may differ depending on the administrative organisation of the court systems in each Member State. It is estimated that a fixed cost of € 14,400 is necessary. 
 Will there be other significant impacts? 
 Procedural safeguards are proposed in order to take away any concerns on fundamental rights which might be raised following the increase of the threshold up to €10,000. 
 D. Follow up 
 When will the policy be reviewed? 
 A review is envisaged after 5 years from entry into application. 
1.           Background
and policy context
At a time where the
European Union (EU) is facing the biggest economic crisis in its history,
improving the efficiency of justice in the European Union has become an important
factor in supporting the economic activity[1].
In most Member States, claims of a small value enjoy access to a simplified
procedure intended to make the costs and length of proceedings more
proportionate to the value of the claims pursued. 
Regulation (EC) No
861/2007 establishing a European Small Claims Procedure
(hereafter: the "ESCP" or the "Regulation") was adopted in
recognition of the fact that the problems of inefficient litigation of small claims are amplified when claims of low value are made across the borders
of the EU Member States.  Additional problems arise in such situations, such as
the unfamiliarity of the parties with the foreign laws and procedures of the
foreign courts, the increased need for translation and interpretation, and the
need to travel abroad for oral hearings. With the
increase in cross-border trade in the EU, the need to provide for efficient
redress mechanisms as a means of supporting the economic activity will become
even more acute.
The Regulation is applied in the EU (except
in Denmark) as of 1 January 2009 and is intended to improve access to justice
by setting up a uniform European procedure which simplifies, speeds up, and
reduces the costs of litigation concerning small claims not exceeding €2,000 in
cross-border cases. By providing
for standard forms and free assistance for the parties in filling in the forms,
the procedure enables courts to process applications
entirely by means of a written procedure, removing the need to travel for oral
hearings - except in exceptional circumstances where a judgment cannot be given
on the basis of written evidence - as well as the need to be represented by a
lawyer. The Regulation also encourages the courts and tribunals to use distance
means of communication for accepting claim forms and for organising oral
hearings. Finally, the resulting judgment circulates
freely among Member States, without the need for any additional intermediate
proceedings necessary to enable recognition and enforcement[2]. 
The procedure is available for example
where consumers have a complaint against businesses located in another Member
State. The procedure is also available when a business, for example an SME has
a dispute with another business located in another Member State. In both cases,
a uniform set of rules would apply and multilingual standard forms would be
available irrespective of where the parties or the court with jurisdiction is
located in the EU.
Despite the benefits it could bring in
terms of reducing the costs and time of litigating cross-border claims, the
procedure is still little known and remains under-used several years after the
entry into application of the Regulation. The European Parliament affirmed in a 2011 Resolution[3]
that more needs to be done in terms of legal certainty, language barriers and
transparency of proceedings. It called on the Commission to take steps to ensure that consumers and
businesses are made more aware and make use of existing legislative
instruments, such as the ESCP. Consumer and business stakeholders have also
raised the fact that the Regulation should be further improved to benefit
consumers and businesses, in particular SMEs. Member States have also identified
certain shortcomings in the current Regulation which should be addressed.
As this impact
assessment will show, the problems are arising mainly from the deficiencies in
the current rules, such as the limited scope of application in terms of
threshold as well as cross-border coverage, and still too cumbersome, costly and
lengthy procedure which does not reflect the technological progress achieved in
the Member States' justice systems since the adoption of the Regulation. Even
where problems are related to the poor implementation of the current rules – as
is the case to a certain extent with the problem of the lack of transparency -
it must be acknowledged that the rules of the Regulation are not always clear.  

The Commission identified the revision of
the Regulation in the 2013 EU Citizenship Report[4]  as one of the actions to strengthen the
rights of Union citizens, by facilitating
the settling of disputes regarding purchases made in another Member State. The
initiative is also included in the European Consumer Agenda[5] as a means of improving enforcement
of consumer rights. Moreover, the modernisation of the
Regulation supports the EU's current political priorities to promote economic
recovery and sustainable growth, by advancing more efficient, simplified court
procedures and by making them more accessible to SMEs. 
2.           Procedural
issues and consultation of interested parties
2.1.        Impact
assessment study and expertise
To prepare the assessment
of the socio-economic impacts of the policy options for the revision
of the Regulation, DG Justice contracted an external impact assessment study by
Deloitte[6].
The report draws on the results of the ex post
evaluation carried out by Deloitte[7].

An IA Steering Group
was established in April 2012. One meeting was organised on 17 May 2013 and a
second one on 18 June 2013. The following DGs and services were consulted:
ELARG, SANCO, MARKT, ENTR, SJ and SG. The feedback received from the DGs has
been taken into account throughout the report.
2.2.        Consultation
of the IAB
This impact assessment
report was examined by the
Commission's Impact Assessment Board on 17 July 2013. The Impact Assessment
Board delivered a positive opinion and made a number of recommendations for
strengthening the Impact Assessment. All of these recommendations have been
taken on board in the current report. In particular, the problem definition now
better reflects the views of stakeholders and presents more clearly the
problems and their drivers; the various options and sub-options are more
clearly assessed and the subsidiarity analysis has been reinforced; finally,
the Report summarizes the expected costs for the Member States. 
2.3.        Stakeholder
consultation
Several consultations to gather
information about the current application of the Regulation as well as of the possible
elements of its revision were carried out. The results gave useful policy
indication of the positions of the stakeholders and the Member States and were
taken into account throughout the IA process. 
A Eurobarometer survey to assess
awareness, expectations and experiences of the European citizens with regard to
the application of the Regulation was carried out in November-December 2012[8]. According to the survey, 71%
of consumer claims are currently within the €2,000 threshold set up by the
Regulation. The average minimum amount for which consumers are willing to
litigate in another Member State is €786. 12% of the respondents were aware of the existence of the ESCP,
with 1% of all respondents declaring that they already used the procedure. 69%
of those who already used the ESCP were satisfied. 97% of all respondents who
took businesses to court and won within last 2 years (both domestically and
cross-border) had their judgements enforced successfully. The most important
factors which would encourage citizens to go to court are: the possibility to
carry out proceedings in writing without appearing in the court (33%), carrying
out the proceedings without instructing a lawyer (26%), carrying out the
proceedings on-line (20%) and using their own language (24%).    
A web-based public consultation was carried
out between 9 March and 10 June 2013. The consultation gathered views on the
possible improvements and further simplification which could further enhance
the benefits of the ESCP, in particular for the consumers and SMEs. 80
responses were received from a broad range of stakeholders, such as consumer
and business associations, judges, lawyers and academics. The results[9] of the consultation show that
66% of respondents support an extension of the threshold up to €10,000, 63% are in favour of using electronic
means in the course of the procedure and 71% support the idea of courts being
equipped with videoconferencing or other electronic communication equipment. Only 28% of respondents thought that free of charge assistance was
provided by the Member States.
A detailed questionnaire on the
operation and practical application of the Regulation was sent to the Member
States at the beginning of April 2013 and to the European Judicial Network .
The questions sought to gather data about the number of cases using the ESCP in
the Member States, the use of electronic means of communication used in court
proceedings, the existence and modalities of assistance to citizens in completing
the forms, procedural deadlines, hearing and evidence, costs of proceedings and
the need for increasing the threshold for eligible small claims. In total, 20
Member States have sent their replies[10].

The European Judicial Network has
discussed the application of the European Small Claims Procedure, the measures
to be taken to raise awareness of its existence and operation as well as the
possible elements of its revision on several occasions. At the meeting of 17
May 2011, some Member States noted that the ESCP was not used in practice to
its full potential and that procedural improvements as well as awareness
raising measures should be taken. A working group was created and mandated to
draft a Practice Guide on the ESCP for the benefit of legal practitioners. At the
meeting of 29/30 May 2013, several aspects amenable to review were discussed
such as increasing the threshold, the use of the electronic means of
communication between courts and parties, the establishment of EU minimum
standards for the conduct of the procedure such as: the availability of
videoconferencing to carry out oral hearings, the issue of ensuring
transparency of court fees calculation and payment and the issue of legal
representation.
3.            Problem
definition
3.1.        Introduction
3.1.1. The ESCP compared with national
procedures
The ESCP is an alternative to national
simplified procedures. However, national simplified
procedures are extremely diverse in terms of both thresholds and procedural
simplification achieved. Few have as many simplification elements as the ESCP (such
as use of standard forms, the written character of the procedure, the
exceptional nature of oral hearings, the removal of the need for legal
representation by a lawyer). Many so-called simplified procedures only have some
of these simplification elements, most commonly the only simplification element
is that there is no need for legal representation in small value disputes which
are in the competence of lower courts (BE). Sometimes these simplification
elements are not a right of the party but rather left at the discretion of the
judge (DE). Oral hearings where the party himself or his legal representative
must be present are still routinely organised in national simplified procedures.
In some Member States there is no national simplified procedure (AT, BG, CY, CZ
and FI). National ordinary procedures do not have most of the simplification
elements of the ESCP.  
There is no data available on the number of
applications of national simplified procedures. However, the fact that these
are generally more expensive and lengthier than the ESCP gives good cause to
think that where claimants are aware of the ESCP, they will use it more often
than the alternative national procedure.  For example, in the Netherlands there
is a simplified procedure for claims up to €25,000, but it is both more complex and more costly than the ESCP.
For this reason, where available, the ESCP is preferred to the national
procedure. 
An important advantage of the ESCP is that
it lays down uniform procedures for cross-border disputes which apply
regardless of where the court with jurisdiction is situated, which reduces the
costs for the parties to investigate the procedure of the Member State where
the court with jurisdiction in a particular dispute is located. 
 How does the ESCP work in a basic scenario[11]? An ESCP application is initiated by the submission of the Claim Form A to the court. If the court finds it correct and complete, it serves it upon the defendant together with the pre-filled Response Form C. If the form requires completion or rectification, the court notifies the claimant by means of Form "B" and takes further steps only after the response is received. The defendant may respond to the claim within 30 days and if he does so, the court sends the copy of the response to the claimant in 14 days from receipt thereof. If the court does not see the need to ask parties for additional information, to take further evidence or convene an oral hearing, it delivers the judgment within 30 days from receipt of the response. Otherwise, it notifies the parties and other participants (witnesses), carries out the act and within 30 days from the act being completed issues the judgment, which than has to be served upon the parties. Each party may request the certificate for enforcement to be delivered. 
3.1.2. Relationship with other
instruments
Regulation (EU) No 1215/2012 (Brussels I
recast) aims at harmonising the private
international law rules on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters. It provides, among others, that
"a judgment given in a Member State shall be recognised in the other
Member States without any special procedure being required". Such special
procedures, which will be abolished as of 10 January 2015 for all civil and
commercial judgments, are known as "exequatur" procedures. 
The ESCP Regulation is essentially an
instrument simplifying the procedures for the resolution of disputes of a low
value - lodging an application by means of a standard form, conduct of the
procedure in principle by written means, the hearing of the parties and the
taking of evidence, the representation of the parties, costs and time limits. 
The ESCP Regulation also contains rules
abolishing the exequatur procedure for the recognition of judgments given by
this simplified procedure (Article 20) and in this respect it overlaps with the
Brussels I recast. However, when it comes to the Certificate of enforcement,
the ESCP Regulation represents a simplification when compared to the Brussels I
recast – Form D of the ESCP is a simplified version of Annex I of the Brussels
I recast. 
As of 10 January 2015 (date of entry into
force of the Brussels I recast), the overwhelming majority of the provisions of
the ESCP Regulation which deal with the procedural simplification, as well as
those on enforcement in as much as they represent a simplification by
comparison with Brussels I recast will continue to be a value added of the ESCP.
Directive 2013/11 on consumer
alternative dispute resolution has as its purpose
to ensure that consumers can, on a voluntary basis, submit complaints against
businesses to ADR entities and that such schemes are fair and effective. It
applies to both domestic and cross-border disputes concerning contractual
obligations stemming from sales and service contracts between a trader and a
consumer.
Although the use of ADR is likely to
increase as a result of the implementation of this Directive, it does not mean
that there is less scope for the ESCP.  The ESCP will continue to be relevant
for resolving cross-border disputes for the following reasons:
- the Directive is limited to disputes
involving certain consumer contracts, while the ESCP is available for any
cross-border claim, regardless of its legal nature (contractual or tortious)
and regardless of whether it is B2C or B2B.
- ADR is not compulsory. Consumers in
particular cannot be forced to agree to the use of ADR and any such agreement
made with a trader before the dispute arises is null and void. The ESCP offers
protection to weaker parties who do not feel sufficiently protected by ADR
mechanisms alone.  
- ADR is effective only as an alternative
to court action and not as a replacement of court action. This means that
unless there is a cost-effective possibility for consumers to take court
action, businesses will not have an incentive to go to ADR. 
- in cases where the ADR procedure fails,
or where the parties do not agree to subject their dispute to ADR, there must
always be the possibility to have recourse to court proceedings. 
Having access to cost effective and speedy
court action is a fundamental right of every citizen which cannot be replaced
by alternative means of resolving disputes. In cross-border cases of a small
value, this can only be achieved EU-wide by the ESCP which ensures that such
access exists for cross-border claims. 
Directive
2008/52/EC on certain aspects of mediation in civil and
commercial matters has a similar function as
Directive 2013/11, although its scope is larger and almost coincides with that
of the ESCP. Similar considerations to those mentioned above for ADR apply also
in respect of this Directive. 
3.2.        Evaluation
of the ESCP regulation
In general, the procedure implemented by
the Regulation is considered to have facilitated cross-border litigation for small
claims in the EU: it has contributed to a reduction of the costs of litigating
cross-border small claims of up to 40%[12]
and of the duration of litigation from up to 2 years before the introduction of
the Regulation to 3 to 8 month.[13]
Two-thirds of those who had used the procedure are overall satisfied with it.[14] 
However, despite these achievements and the
constant increase in the number of applications year-on-year[15], the use of the ESCP in the
Member States remains very limited. The following main
problems have been identified: 
The scope of
the Regulation is too narrow. The EUR 2 000 threshold is set at a level
where a significant number of business stakeholders – in particular SMEs - are
severely limited in using the procedure. However, a simplified, less costly and
speedier procedure would improve access to justice for SMEs involved in
cross-border disputes. Furthermore, the limitation of the territorial scope to
only cross-border cases where at least one of the parties is located in another
Member State than the court or tribunal with jurisdiction deprives certain citizens
having disputes with a cross-border element of the benefits which they could
draw from the application of the ESCP.
The procedure is still more costly
and time consuming than it could be the case. For example:
- although distance means of communication
for conducting oral hearings are already available or can easily be installed
in all courts, many courts are still lacking this equipment and judges are
still reluctant to make use of such means and require parties to travel to the
court. This has a significant impact on costs and length of proceedings;
- in most Member States court fees are not
an impediment to legal action, but in a number of Member States, in particular
for claims up to EUR 2 000, court fees are disproportionate to the value of the
claims;
- the lack of any provision on the
availability of distance means of payment of court fees also means that in some
Member States the claimant would either have to travel to the court or hire a
lawyer to pay these fees for him.
- as for translation costs, translations of
the forms A, B and C are essential to enable the judge to assess the merits of
a claim and to inform the defendant of the substance of the complaint. Absent
such obligation, courts would probably not be able to give judgment on the
basis of a written procedure – which is the aim of the Regulation.  A reduction
in translation costs can only be achieved, without jeopardising the efficiency
of the procedure, at the stage of enforcement by limiting the requirement to
translate the Certificate in Form D to only the section dealing with the
substance of the judgment.
The limited awareness of the
procedure among judges and lawyers and the general public can be explained
partly by the fact that the low threshold puts the procedure outside the sphere
of interest of many businesses, including SMEs. As judges are not required to
raise of their own motion the possibility of using the ESCP for cases within
the scope of the Regulation even where this procedure would be more convenient
to the party than the national procedure, the burden of choosing the procedure rests
entirely in the hands of the claimant. Therefore, his knowledge of its
existence, its benefits compared to national procedures and its operation is
crucial for the up-take of the procedure. 
From the outset, it must be stated that most of the identified problems are due to deficiencies in the
Regulation, as for example the limited scope, the lack of provisions in regard
to certain issues (court fees, payment methods) and the lack of stronger rules
on the use of electronic means of communication between the courts and the
parties. Where problems arise mainly from poor implementation, it must be
acknowledged that this poor implementation stems from the lack of clarity
within the Regulation itself (for example, in respect of how the Member States'
should  make free assistance available and of what type of information relating
to costs must be provided by the Member States). Therefore deficiencies in the
Regulation and poor implementation go hand in hand.   
A problem tree is presented below:
3.3.        Problem
1: Limited scope of the Regulation 
3.3.1. The €2,000 threshold leaves many
small value disputes outside the scope of the Regulation, leading to high and
disproportionate litigation costs for these claims 
The threshold of € 2,000 limits the scope
of the Regulation. While this is less important for consumers, since most of
their claims do not exceed €2,000, it severely limits the availability of the
procedure for SMEs whose cross-border legal disputes with another business
amount on average to €39,700[16].
Eurobarometer 347 shows that about 30 %[17]
of the claims of businesses have a value between €2,001 and €10,000, while 20%
are claims with a value of below €2,000. Every year, about 360 000 businesses
in the EU are faced with problematic cross-border transactions with a value
between €2,000 and €10,000[18].
These businesses have to revert to national small claims procedures or – where
there is no such national procedure in place for cross-border cases – to
ordinary civil procedures. Particularly in Member States which do not have a national
small claims procedure for these claims, this leads to disproportionate
litigation costs and lengthy proceedings, which in turn may deter
claimants from pursuing their claims.
The costs of litigating in the Member
States and the duration of the proceedings can be summed up as follows: [19] 
·       
Cross-border cases concerning claims of
between €2,000 and €5,000[20]: In the 5 Member States where these claims benefit from national
simplified small claims procedures[21]
the average cost appears to be broadly similar to the costs they would face under
the current procedural rules of the ESCP, if the threshold were to be raised to
€5,000 (in some Member States the costs seem to be higher[22] and in some Member States
lower[23]).
The average costs of the ESCP procedure are of about €1,750[24]. As for the other Member
States, where these cases are treated under ordinary procedures, the average
cost of litigation is estimated at €2,800 and the average duration of
proceedings is estimated to be 1 year. These costs represent more than
half of the value of the claim, and are therefore clearly likely to be regarded
as disproportionate by most
potential litigants. 
·       
Cross-border cases concerning claims of
between €2,000 and €10,000: In 3 Member States
these claims benefit from a national simplified small claims procedure[25], with average costs similar to
those of the ESCP.[26]
As for the other 24 Member States, where these cases do not benefit from a
national small claims procedure, the average cost of litigation is estimated at
€3,000 and the average duration of proceedings is estimated at 1 year.
As the costs represent 30% of the value of the claim, they can be assumed to be
perceived as disproportionate by a potential claimant. 
·       
Cross-border cases concerning claims of more
than €10,000: Only one Member State[27] has a national small claims
procedure for claims of a value above €10,000  in place. It is estimated that
the average costs of litigation are no longer disproportionate when the claim
has a value of €13,500 or more. In the other Member States where an ordinary
procedure is applied, the average costs of litigation are estimated to no
longer be disproportionate when the claim has a value of €15,000 or more.
Eurobarometer 347 shows that about 50% of the cross-border disputes companies
experienced with other companies have a value below €10,000[28]. A significant part of the disproportionate costs could potentially be
avoided if those claims could benefit from the ESCP.
45% of companies which experience a
cross-border dispute do not go to court because the costs of court procedures are
disproportionate to the value of the claim, while 27% do not go to court
because the court procedure would take too long.[29] 
In regard to the fact that the costs for
litigating will (partly) be reimbursed by the losing party, a possible claimant
may nevertheless decide to go to court, but he would have to take the risk that
when losing his case the costs he would have to bear would significantly
increase the losses he had already incurred due to his unresolved claim.  
It can thus be concluded, that disproportionate costs for litigating cross-border small claims
of a value between €2,000 and €5,000 and between €2,000 and €10,000 discourage businesses
(especially SMEs) from enforcing their rights in cross-border cases concerning
small claims. This leads to financial losses and decreased confidence in
engaging in cross-border trade.
This analysis is supported by the position
papers of European business and consumer organisations, such as BusinessEurope[30] and BEUC[31], both of which support the
increase of the threshold up to €10,000. Several Member States are also of the opinion that a higher
threshold would be appropriate in order to make the procedure more appealing to
SMEs (for example UK, NL, EL, IE, BE and RO[32]).

Many Member States have increased the
threshold of national simplified procedures since the Regulation was adopted (EE, FR, HU, IE, IT, LT, SI, ES, NL and the UK). In some of these
Member States the increase is significant (in the UK, from £5,000 to £10,000,
in the Netherland from €5,000 to €25,000). On the
backdrop of these developments in national laws, the current threshold of €2,000 for the ESCP risks to make the
procedure obsolete, at the expense of consumers and businesses - in particular
SMEs – dealing cross-border.
3.3.2. The narrow definition of "cross-border"
leaves many citizens deprived of the benefits they could derive from the ESCP
The Regulation currently applies only to
disputes where at least one of the parties is domiciled or habitually resident
in a Member State other than the Member State of the court or tribunal seized. However,
disputes involving parties domiciled in the same Member State which have an
important cross-border element and could therefore benefit from the European
simplified procedure are left outside the scope of the Regulation. Examples
include cases where:
·              
the place of performance of the contract
is in another Member State, for example a lease contract for a holiday property
situated in another Member State; or
·              
the place of occurrence of the harmful event is
in another Member State, for example when parties are involved in a car
accident in a border region situated in another Member State; or
·              
the enforcement of the judgment is to
take place in another Member State, for example when a judgment must be
executed on the defendants salary which he receives in another Member State.
In particular, where the claimant may
choose under the provisions of Regulation [(EC) No 44/2001]/[(EU) No 1215/2012]
between the jurisdiction of the courts of the Member State where both him and
the defendant are domiciled and the jurisdiction of the Member State where for
example the contract is performed or the harmful event took place, the actual
choice of the claimant in favour of the courts or tribunals of the Member State
of the common domicile should not have the effect of depriving him of the
possibility to use the European Small Claims Procedure which would otherwise be
available. 
Furthermore, the limitation bars
applications under the European Small Claims Procedure lodged before courts of
EU Member States by or against nationals of third countries, for example where
the consumer is in the EU, and the business is located
in a third country[33].
In cases not coming in the scope of the
Regulation, citizens have to revert to national small claims or to ordinary
civil proceedings. In Member States which do not have a simplified procedure
for claims of a small value[34],
this may lead to even higher litigation costs and lengthier proceedings than
would otherwise be the case under the ESCP. Faced with the additional costs and
length of proceedings under the national small claims procedures or, in the
absence of these, the ordinary civil proceedings, or with an uncertainty about
whether the ESCP applies to their case, citizens are discouraged from pursuing
their claims. 
Furthermore, the limitation of the
cross-border reach of the ESCP creates legal uncertainty. Citizens may have the
expectation that more of their cross-border cases would be covered by the ESCP[35], and this unfounded
expectation may lead to invalid applications made under this Regulation. 
Citizens may also artificially create a cross-border scenario as envisaged in
the Regulation in order to benefit from its advantages, for example by assigning
their claim to a foreign company[36].
Since courts have according to Article 4(3)
of the Regulation the power to check if the conditions set out in the
Regulation are fulfilled, there is no risk of abuse on the part of claimants.
3.4.        Problem
2: Inefficiencies of the ESCP due to high costs and length of the current
procedure in cross-border cases below €2,000 as well as lack of transparency of
litigation costs and availability of practical assistance
The current procedure is still more costly
and cumbersome than it could be. According to the position paper of the European
SME organisation UEAPME, the disproportionality of the costs of litigation for
claims under €2,000 restricts the access to courts of SMEs in particular[37].   BEUC, the European consumer
association, also considers that the current procedure is too burdensome,
especially for the claimant.
3.4.1. Inefficiency deriving from the
priority given to postal service over other, less expensive and faster means of
communication
The ESCP is in principle a written
procedure that consists of a number of communication interactions between the
courts and the parties or other participants to the proceedings (e.g. experts,
witnesses). The claim form can be submitted, according to the Regulation, by
electronic means. The evaluation of the Regulation has
shown that 10 Member States/jurisdictions[38] and 5
Länder in Germany[39] may allow
for the electronic submission of applications in cross-border cases (online or
via e-mail)[40].
This development is likely to increase in the future with the use of electronic
communication methods becoming more and more common[41]. The pilot project e-Codex on European e-justice[42] assessing the feasibility of a centralised
European e-application system for Small Claims
Procedure may lead in the future to the implementation of a EU-wide on-line
application system. 
Once an application has been filed with the
court, it must then be "served" on the defendant. Other important
court documents also need to be "served". Service of court documents
implies that the addressee actually receives these documents and in many
judicial systems the receipt of the document by the addressee is required. As a minimum, there are three court documents which are affected by
the obligation of service in the ESCP Regulation: the service of the
application on the defendant, the service of the judgment on the claimant and
the service of the judgment on the defendant. It is not clear from the current
text of the Regulation whether the summons to oral hearings also need to be
"served". 
Service is done in the Member States by
various means, most commonly by registered post. In some Member States bailiffs
are still used. Electronic service which is much cheaper for the parties and
faster than postal service is increasingly gaining acceptance.
Whenever service of documents is required
in the ESCP Regulation, Article 13 sets postal service with acknowledgement of
receipt as the primary method of service. Other service methods - including
electronic service which is faster and less costly - could be applied only if
service by post is not possible. At the time of the adoption of the Regulation,
this provision was very progressive since it removed the need for
intermediaries such as bailiffs. However, technological developments in some
Member States which have put in place electronic communication means for
domestic procedures[43]
cannot equally benefit ESCP parties because of the rule establishing the
priority of postal service over all other means of communication. 
There is no provision in the Regulation of
other, less important communications between the parties and the court. In practice,
in many Member States all communications between the parties and the court are effected
by postal service.    
Even though postal service is already
cheaper than other methods of service used in ordinary proceedings in the
Member States, such as bailiffs, it still generates sometimes unnecessary costs
and delays in comparison with the use of electronic service. If postal costs
are estimated at between €2.78 and €7, which amounts to costs of between €8 to
€21 per case. In terms of delay in the procedure, each service/communication by
post takes between 1 and 3 days, or for the whole procedure, between 3 to 9
days. As the average length of the proceedings is between 3 and 6 months, this
constitutes a non-negligible part of the process. 
The ESCP encourages use of electronic
communication to a very limited extent. It allows for the electronic submission
of the application form, however it leaves it completely to the discretion of
each Member State. As for the service of court documents, while more Member
States are expected to adopt and implement ICT solutions in the coming years,
due to the current provision of the Regulation which stipulates a preference
for postal service, the implementation of electronic service solutions is
likely to remain deficient in ESCP cases. 
This insufficient use of ICT is a deterrent
to the attractiveness of the Regulation: a fifth of the respondents to the
Special Eurobarometer 395 on the European Small Claims Procedure indicated that
they would be more inclined to use the procedure if all the proceedings could
be carried out online.
On average, if electronic communication
with acknowledgment of receipt at a cost of €1 would be used instead of post, and
only for the documents which need to be served according to the Regulation and
not for all communications between the parties and the courts, a party is
expected to save between €5 to €18 and 3 to 9 days. In practice however,
because many more communications are effected by post, the costs to the parties
are higher.
3.5.2. Need to travel because of low
up-take of distance means of communication for oral hearings and taking of
evidence
Although the ESCP is a written procedure, the
court of tribunal may hold an oral hearing if it considers this to be necessary
or if a party so requests. According to Article 8 of the Regulation, the court
or tribunal may hold an oral hearing through video conference or other
communication technology[44]
if the technical means are available. A similar provision is contained
in Article 9(1) on taking of evidence (for example statements of witnesses,
experts or parties). If the court does not have ICT technologies in place or if
it does not use them, persons summoned are required to travel to the court
which may be situated in another Member State.  
This may entail significant additional
costs and delays for the parties, which can act as a strong deterrent to filing
cross-border small claims applications. Indeed, the fact that the use of ICT
technologies can be a viable solution to the lack of proximity and geographical
access to courts was confirmed in the Special Eurobarometer 395 on the ESCP[45]. One in three respondents
indicated that they would be more inclined to file a claim if the procedures
could be completed at a distance, implying that there was no need to physically
go to court.
According to available data, there are 7
Member States [46]
which offer limited (less than 10% of courts) or no possibilities for the use
of videoconferencing or other communication technology in courts, and 7 others
which offer such means in less than 50% of courts[47].  10 Member States have the
technology in all the courts[48].
There are no available data on the actual use of these distance means where the
technology is available, although it appears that the courts still refrain from
using it in many cases. 
As to the method of using distance means
for oral hearings while ensuring the protection of the procedural rights of the
parties, the EU has already put in place uniform rules on the  taking of
evidence and oral hearings, including by distance means of communication, in
Council Regulation (EC) No 1206/2001. 
On average, a party is expected to save between
€300 and €700 and at least 9 h of traveling time every time a hearing is
carried out through distance means of communication instead of travelling to
court. An oral hearing is estimated to take place on average in 40% of cases,
since in many Member States courts still attach a lot of importance to oral
hearings.
3.5.3. Court fees which are disproportionate
to the value of the claims
The majority of the Member States levies
the court fees upon the claimant on submission of the application. In a large
number of cases the fee or part of it has to be paid upfront before the courts can
process the case. The court fee constitutes an element of litigation costs which
fall under the "loser pays" principle, therefore the claimant may usually
hope on the reimbursement of costs. However, the outcome of the case cannot be
certain and the claimant would have to "freeze" his own money till effective
enforcement. 
Therefore, court fees which are higher than
10% of the value of the claim are considered to be disproportionate and may be
a factor in the citizens' decision not to pursue legal action[49]. BEUC's
position paper mentions disproportionate court fees as a factor which
discourages consumers from using the procedure. Some Member States support
measures of approximation of court fees (BG, ES, PT, SI and SK), while some
others are opposed to such measures.
The court fees of Member States currently
vary considerably depending on the calculation method (fixed, or as a proportion
of the value of the claim, or a combination of these two). In some Member
States (CY, LU, ES) there are no court fees for ESCP applications. In some
other Member States, court fees of up to 57% are charged for some small claims.
In some Member States, court fees are
disproportionate to the value of the claim, in particular for lower value
claims, and the lower the value of the claim, the more disproportionate the
court fees. For example[50],
court fees for litigating a €500 claim are disproportionate in EE (20% of the
value of the claim), FI (23%), DE (21%), LV (15%), NL (15%), PT (20%), SE (11%)
and the UK (13%).  For litigating a €1,000 claim, court fees are still
disproportionate to the value of the claim in EE (18%), FI (11%), DE (17%), LV
(15%) and NL (21%). For €2,000 value claims, court fees remain slightly
disproportionate only in EE, DE, LV and the NL. The disproportionality of court
fees disappears above the €2,000 mark.
Court fees in some countries are a source
of income to the public budget. However, the
disproportionality of court fees affects more the position of the claimant in a
cross-border dispute than in a domestic one because of the
specific nature of cross-border disputes which – as
opposed to domestic disputes – routinely require the claimant to incur
additional costs, such as translation costs and, if oral hearings are
organised, travel and interpretation costs. Thus, claimants may be more
reluctant to take court action in cross-border disputes in Member States where
court fees are disproportionate. This may create distortions
of competition in the internal market. Furthermore, in respect of simplified
procedures which drastically reduce the workload of the court per case,
charging the same amount as for ordinary procedures seems unjustifiable.  
In many Member States, a minimum court fee is
set in order to prevent abusive or frivolous litigation, i.e. lodging cases
that are not adequately evidenced or justified, or which are of a derisory value,
e.g. €10. 
 The average minimum court fee for small
claims in the EU for claims of €200 is €34, while for claims of €500 is about €44.

3.5.4. Unavailability of on-line payment
methods for court fees
A citizen complaint to the Commission about
obstacles in regard to the payment of court fees from a distance in one Member
State has led to the examination of methods of payment of court fees in place
in the Member States. 
Payment methods differ greatly across
Member States, but in a few Member States they require the actual physical
payment at the court premises or payment through a lawyer or cheques which are
not in general use in many Member States (for example EL, BG, NL, UK). In these
Member States, parties would need to incur travel costs or hire a lawyer in the
Member State of the court, which may make their claims unworth pursuing. 
Many Member States (for example AT, FI, DE,
FR, LV, LT and PL) allow for the possibility of at least one form of electronic
payments (debit/credit card on-line payment or bank transfer). Wire transfer is
allowed in some other Member States (HU, SK and SI). 
Each method of payment entails specific
costs for the claimant with an average of €26 if no travel is required, and
between €400 and €800 if travel is required.   
3.5.5. Unnecessary translation costs
According to Article 21(2)(b) of the Regulation,
at the stage of the enforcement of the judgment, the
party seeking enforcement must produce an original copy of the judgment and of
Form D (Certificate concerning a judgment in the ESCP)[51]. Since most Member States
accept enforcement documents only in their official national language(s), this form
must be translated by a certified translator into the language(s) of the Member
State of enforcement. Only a few Member States accept Form D in English and a
few other languages[52].  
The obligation to translate Form D imposes
unnecessary costs in that only Section 4.3 of the form (Substance of the
judgment) should need to be translated, as the other fields are already
available in all languages. However, translators often charge for translating the
whole form. For the party wishing to enforce a judgment, the resulting
unnecessary costs, added to other costs, may act as a disincentive to pursuing
a claim or seeking its enforcement. 
The average translation costs of Form D are
€ 60, but could be reduced by € 20 to € 40 if only Section 4.3 was translated. 
3.5.6. Lack of transparency concerning
costs of litigation and methods of payment of court fees in ESCP cases
According to Article 24 of the ESCP, Member
States have the obligation to cooperate in order to provide the general public
and professional circles with information about the ESCP. Article 25 stipulates
that Member States must submit to the Commission information about several
aspects of the ESCP (competent courts, accepted means of communication,
availability of appeal, accepted languages for enforcement, enforcement
authorities). 
However, information on two aspects which
vary greatly among Member States is currently not available:
·              
Litigation costs for
cross-border small claims under the ESCP in each Member State; and
·              
Accepted methods of payment of court fees for ESCP cases.
The uncertainty with regard to the costs
that may be incurred and to the methods of payment accepted by courts in
different Member States may act as a deterrent for consumers and businesses, in
particular SMEs, which consider taking their case to court. Indeed, although
the ESCP is meant to be an inexpensive way to initiate cross-border
proceedings, various costs may still be incurred such as stamp-duty, expert
fees, and translation costs. 
The European e-Justice Portal[53] and the national websites of
the European Consumer Centers (ECC)[54]
contain some information on the costs of litigating domestic small
claims and methods of payment in the Member States, but the quality and detail
of this information vary. Furthermore, there is either no information on costs
for the cross-border applications under the ESCP or that information is
not clear. Furthermore, information on costs of litigating cross-border small
claims and methods of payment is not directly accessible for consumers on the
European e-Justice Portal. 
Due to this lack of transparency, consumers
and businesses cannot make a fully informed decision concerning whether to
litigate a small claim in a cross-border context or not. The lack of
transparency implies time for consumers and companies to search for information
on costs, which represents an opportunity cost to the parties. In some cases,
claimants must even seek lawyers’ advice, leading to even higher costs.  
Looking for information on costs of
litigating cross-border small claims represents an opportunity cost for the
potential claimant. If it takes on average 4 hours to look for the information
at an opportunity cost of €15, searching costs are €60 for each claimant. 
3.5.7. Lack of transparency  on the
availability of practical assistance to citizens
Among the most important simplification
elements of the ESCP is the use of written forms provided for different phases
of the procedure and the removal of the obligation to consult a lawyer. Despite
this simplification and the fact that the forms are available in all languages
on the EU e-Justice Portal[55] and
can be completed online, citizens still report having difficulties filling in
the forms. Around 1 out of 5 respondents to the Special
Eurobarometer 395 experienced difficulties in filling in the forms, while one
in ten respondents in the ECC-Net survey asked for assistance but did not
receive it. Calculating the
interest rate, selecting the right attachment, questions about the
international jurisdiction in the claim form are issues that can pose problems
to ordinary citizens. 
According to Article 11 of the Regulation,
Member States have an obligation to ensure that the parties can receive practical
assistance in filling out the forms. Nevertheless, according to the ECC-Net
survey, 41% of the Member States have reported that
such assistance is not available to citizens[56].

Thus, while the Member States are obliged
to ensure that assistance in filling in the ESCP forms is provided to
claimants, there seems to be little transparency with regard to the actors or
organisations that are responsible for providing such support. The result is
likely to be a reduced use of the ESCP, as claimants who are uncertain about
how to complete the form may abstain from going to court. Alternatively, they
may have to engage lawyers, meaning that they incur additional costs. Extra
time is also likely to be spent on trying to obtain support or search for
assistance.
Looking for information on where to obtain
assistance in filling in the forms represent an opportunity cost for the
potential claimant. If it takes on average 4 hours to look for the information
at an opportunity cost of € 15, searching costs are € 60 for each claimant. 
 
3.5.        Problem
3: Limited awareness of the existence and operation of the procedure
For a successful application of the ESCP,
it is necessary that the relevant actors - the citizens, the courts and other
organisations providing support and advice - are aware of its existence and of
its operation. Evidence shows however that neither citizens, nor courts are yet
well-informed about the existence and the procedures of the ESCP. The
limitation in the scope of the procedure, in particular in regard to the
threshold, explains to a certain extent why businesses and business
organisations in particular are not aware of the procedure.
Eurobarometer 395 shows that 86% of citizens
have never heard about the ESCP. As a result, potential claimants, in particular consumers, either do not pursue
their cross-border claims or pursue them using national procedures. 
As for the courts and judges, a
survey carried out by the European Consumer Centres Network (ECC-Net)[57] in all Member States showed
that almost half of the courts have never heard about the ESCP, while the other
half was not fully informed of the details and principles of the procedure
itself. The data indicates that, despite the Member States' attempts to
increase the knowledge of courts via training, articles, seminars, conferences,
guidelines and the use of the Judicial Atlas in Civil and Commercial Matters,
the dissemination of information has not been effective.
The lack of knowledge is a general
problem. The European Judicial Atlas contains useful information on competent
courts and accepted languages in each Member State, but it does not contain
other essential practical information such as contact details of bailiffs, the
level of court fees, translation costs, bailiff costs and the costs which may
have to be covered by the losing party. Furthermore, problems arise when there
is a need to contact the court to verify, for example which methods of payment
are accepted, or where the court asks for a complement or a rectification of
the application.
Finally, due to the lack of information on
the ESCP, a high number of courts and judges are not in a position to ensure efficient
assistance to consumers and businesses as requested in Article 11 of the
Regulation.
The Commission has tried to address this
problem by a range of actions undertaken to raise awareness and develop
training. For example, information on the ESCP together with interactive forms
to be directly filled-in by citizens is published and updated on several EU
websites since 2008 (EJN website, European Judicial Atlas, and e-Justice
Portal); a Practice Guide for legal practitioners and a User Guide for citizens
will be published in 2013; the Commission will finance the European Consumers
Centres (ECC) giving assistance to consumers involved in ESCP cases. However,
without complementary awareness raising campaigns at national level by the
Member States, these actions are likely to have a limited impact. 
It is likely that these
measures will yield positive results and that an increasing number of
applications under the ESCP will follow. It is estimated that the number of
small claims which could benefit from the procedure could amount to 414,060
cases[58].

3.6.        EU
right to act
3.7.1. Legal basis
The
original ESCP was adopted under Article 61(c) TEC stipulating that the Council
shall adopt measures in the field of judicial cooperation in civil matters and
Article 67(1) TEC defining the legislative procedure to be followed. Following
the entry into force of the Lisbon Treaty, any revision to the ESCP will be
based on Articles 81(2) (a), (c) and (f) TFEU. Article 81(1) TFEU provides that
‘The Union shall develop judicial cooperation in civil matters having
cross-border implications, based on the principle of mutual recognition of
judgments and of decisions in extrajudicial cases. Such cooperation may include
the adoption of measures for the approximation of the laws and regulations of
the Member States’, and related Article 81(2) TFEU under points (a), (c) and
(f) empowers the EU to adopt measures aimed at
–                        
ensuring the mutual
recognition and enforcement of judgments between Member States;
–                        
the compatibility of the
rules applicable in Member States concerning conflict of laws and of
jurisdiction; and 
–                        
the elimination of obstacles
for the proper functioning of civil proceedings.
3.7.2. Principle of subsidiarity 
The need for EU action has already been
established in 2007 when the Regulation 861/2007 was adopted. The issue being addressed has transnational
aspects, which cannot satisfactorily be dealt by the Member States’ individual
action. The objective of enhancing the confidence of consumers and businesses,
particularly SMEs, in cross-border trade and the access to justice cannot be
achieved without an amendment of the existing Regulation to better reflect
developments since 2007. 
National simplified
procedures, where they exist, are extremely diverse both
in terms of threshold and the procedural simplification achieved. In the
absence of uniform EU-wide procedural standards, the additional inherent complexity
and cost of pursuing a cross-border claim, resulting from the lack of
familiarity of the parties with a foreign procedural law, the need for
translation and interpretation and the need to travel for oral hearings, would amplify the disproportionate costs and
length of litigation as compared to domestic disputes. Distortions of
competition within the internal market due to imbalances with regard to the
functioning of the procedural means afforded to claimants/creditors in
different Member States entails the need for EU action that guarantees a
level-playing field for creditors and debtors throughout the EU. For example,
in the absence of a revision, the current threshold will continue to leave many
SMEs having a cross-border dispute without access to a simplified and uniform
court procedure in all the Member States. Similarly, in the absence of a
EU-wide cap on disproportionate court fees and of a EU-wide possibility to pay
court fees via distance means of payment, many creditors would not have access
to courts. 
Furthermore, action at
the EU level would produce clear benefits (compared to Member States’ action)
in terms of effectiveness as the amended Regulation will set up uniform
procedural tools for all cross-border claims in the EU, regardless of where in
the EU the court hearing the case is situated.  The revision will improve
access to justice in particular for a large proportion of SME small claims
which are now outside the scope of the Regulation, as well as for consumers and
SMEs which have cross-border claims outside the current definition of the
Regulation. Furthermore, the revision would make the procedure more efficient
for all claims within its scope, by making available uniform procedural rules
which further simplify and make less costly litigation in cross-border disputes.
Better access to efficient judicial procedures for more creditors having claims
of a small value will un-block the flow of capital, leading to increased
confidence in cross-border trade and to a better functioning of the internal
market.   
The procedure will also
simplify further the enforcement procedure, especially for claims above the
current threshold, and create more trust among the courts and enforcement
authorities who would become familiar with the European procedure. 
4.           Policy
objectives for the revision of the Regulation
The general, specific and operational
policy objectives are presented in the table below:
 General objectives || ·                          To improve the functioning of the internal market by adopting measures in the field of judicial cooperation in civil matters and by improving the confidence of consumers and businesses in cross-border trade ·                          To ensure a high level of consumer protection   
 Specific objectives || ·                          To provide better access to justice for the parties, in particular for consumers and SMEs ·                          To further simplify the court procedure for cross-border small claims ·                          To reduce costs and length of litigation for cross-border small claims ·                          To reduce economic detriment to consumers and SMEs, while ensuring a system where procedural rights are safeguarded in conformity with the Charter of Fundamental Rights of the EU   
 Operational objectives || ·                          To reduce costs and length of litigating cross-border small claims disputes above €2,000 ·                          To remove the limitation in the cross-border scope of the procedure ·                          To further reduce the costs and length of the procedure and improve the transparency of litigation costs and availability of practical assistance ·                          To improve awareness of the existence and operation of the ESCP 
5.           Policy
options
5.1.        Four
main options
The following policy options were
considered: 
Policy Option 1 – Status quo
(baseline scenario): the Regulation remains
unchanged. 
The status quo
described in the problem definition is likely to evolve as a result of certain
legislative and non-legislative developments which took place recently, as well
as due to certain market developments. 
From the outset, it
must be acknowledged that, as more and more cross-border purchases will take
place in the EU, in particular via e-commerce, the number of cross-border claims
of a relatively small value which could benefit from the ESCP will also increase
constantly. For example, 4% more cross-border purchases were reported for 2012
than was the case 2 years ago. Currently, for on-line and off-line purchases of
goods and services taken together, 1 in 3 has a cross-border element[59]. 
Some other legislative
measures in the EU recently adopted will on their own ease cross-border redress
and enforcement. First, some disputes are likely to benefit from out-of-court
mechanisms as a result of the adoption of the Directive on consumer ADR
although their number is difficult to estimate. It must be stressed that this
measure will have no impact on business claims, or on some consumer claims
which are outside the scope of that Directive. Second, all judgments falling
within the scope of the Brussels I Regulation (recast) regardless of their
value will benefit, as of 10 January 2015, from the abolition of intermediary
procedures for recognising and enforcing a judgment. Nevertheless, the impact
of Brussels I (recast) is limited to reducing the costs and time taken at the
stage of enforcing a judgment in another Member State.  The procedural benefits
of the ESCP will continue to have an impact for the parties during court
procedures leading up to a judgment, but also at the stage of enforcement since
the certificate annexed to the ESCP Regulation is simpler than the equivalent
certificate annexed to the Brussels I (recast). 
Litigation costs in
national procedures are also likely to decrease over the years as a result of an
expected increase in the use of electronic means of communication by the courts.
However, the inherent diversity of national rules and procedures are not likely
to allow cross-border litigants to benefit equally from those positive
developments. Access to justice for such cross-border claims will continue to
be unduly restricted.
On the non-legislative side, the measures
undertaken to raise awareness of the procedure are expected to have a positive
impact on the knowledge of the uniform procedure and its use in practice.
However, the limited scope of the current Regulation and its deficiencies in
terms of the simplification which could be achieved will not enable many more
claimants to benefit from the procedure.
In conclusion, in the
absence of EU action, the costs
and length of litigating claims of a small value above the current threshold of
€2,000 will continue to be disproportionate to the value of the claim, in
particular in those Member States which do not have a national simplified
procedure in place for claims
above this threshold. Cross-border claims currently outside the scope of the
cross-border definition in the Regulation will also be deprived of a
simplified, uniform procedure across the EU. Finally, the current procedural
elements of the ESCP will continue to impose higher costs and length of
litigating than could be the case, and therefore a significant percentage of
claimants with low value claims will continue to be discouraged from pursuing
their remedies in court.
Policy Option 2 – Repealing the
Regulation
The entry into application of Regulation
(EC) No 1215/2012 on jurisdiction, recognition and enforcement in civil and
commercial matters (the Brussels I recast) on 10 January 2015 will lead to the
abolition of intermediary proceeding for the recognition and enforcement of all
judgments in the EU. Thus, the simplification and cost reduction of the ESCP in
the enforcement stage will become less important. 
Nevertheless, the Brussels
I (recast) does not remove the added value of the Small Claims Regulation
insofar as the latter offers a predictable, uniform, speedy and simple procedure
for the recovery of claims. The ESCP will remain the
only uniform, cost-effective alternative to the national procedures for
contested claims, including national simplified procedures. 
For these reasons, this option was discarded
from an early stage. 
Policy Option 3 - Revision of the
Regulation
The following table presents synoptically
the sub-options of this policy option as they address the problems. 
 Problem || Policy Option 3 – Sub-Options per problem and issue 
 Limited scope of the ESCP || Disproportionate costs for cross-border claims above €2,000 || ·         Sub-option 0: Keep the threshold at €2,000 (status quo) ·         Sub-option 1: Raising the threshold from €2,000 to €5,000 ·         Sub-option 2: Raising the threshold from €2,000 to €10,000 ·         Sub-option 3: Raising the threshold from €2,000 to beyond €10,000 
 The narrow definition of "cross-border" cases || ·         Sub-option 0: keep the current definition of "cross-border" ·         Sub-option 1: Extension of the definition to cover all cases having a cross-border element 
 Inefficiencies of the current ESCP || Inefficiency derived from the priority given to postal service over electronic service   || ·         Sub-option 0: status quo (priority of postal service) ·        Sub-option 1: No priority in terms of means of service of documents; post and electronic means on an equal footing ·         Sub-option 2: Member States must ensure the possibility to serve documents via electronic means and allow the parties to choose the method 
 Low up-take of distance means of communication for oral hearings and taking of evidence || ·         Sub-option 0: status quo (courts discretion as to the means of organising oral evidence) ·         Sub-option 1: Oral hearing must be organised by distance means of communication, whenever the necessary equipment exists already at the court, with the exception of the party who requests to be present in court ·         Sub-option 2: Oral hearing must be organised by distance means of communication, with the exception of the party who requests to be present in court 
 Disproportionate court fees || ·         Sub-option 0: status quo (no provision) ·         Sub-option 1: Limitation of level of court fees to maximum 5% of the value of the claim, with a possible minimum limit of no more than €45 ·         Sub-option 2: Limitation of level of court fees to maximum 10% of the value of the claim, with a possible minimum limit of no more than €35 
 Practical obstacles to the payment of court fees || ·         Sub-option 0: status quo (no provision) ·         Sub-option 1: Ensure mandatory acceptance of at least bank transfers ·         Sub-option 2: Ensure mandatory acceptance of at least bank transfers and credit/debit cards 
 Unnecessary translation costs in the enforcement stage || ·         Sub-option 0: status quo (obligation to translate Form D) ·         Sub-option 1: Remove the obligation of translation of form D, except Section 4.3 of Form D (the substance of the judgment) 
 Lack of transparency regarding the costs of litigation and the method of payment of court fees || ·         Sub-option 0: status quo (no provision) ·         Sub-option 1: Introduce an obligation on Member States to notify this information to the Commission   
 Lack of transparency of the availability of assistance in filling in the forms || ·         Sub-option 0: status quo (no provision) ·         Sub-option 1: Introduce an obligation on Member States to notify this information to the Commission 
In the light of the replies received from
the Member States, other options for making the procedure speedier or less
costly were abandoned at an early stage. For example, the imposition of uniform
sanctions for not respecting the time limits set out in the Regulation was not
considered to be appropriate for this revision. Other measures were thought to
be more appropriate to reduce the length of litigation under the ESCP (use of electronic
communication and distance means of communication for oral hearings, on-line payment
of court fees).  The limitation of the discretion of the judges to organise
oral hearings as a measure of reducing travel costs was also abandoned in the
face of almost universal opposition from the Member States. this could also be
achieved by other less intrusive means (e.g. the mandatory use of distance
means of communication where parties agree). 
Policy Option 4 – Harmonisation of
national small claims procedures through a directive 
The current ESCP applies only in
cross-border cases and is designed so that it combines common Union level
procedure with the national civil procedures. This option would consist of
creating a unique procedure for small claims under a certain threshold that
would harmonise the national procedural rules applicable for cross-border and domestic
cases without distinction. This policy option would
ensure that one and the same simplified procedure could be used in all cases
even in those Member States where there is currently no small claims procedure
in place , and that the different national procedures applicable to small
claims in all Member States are harmonised. 
However, the harmonisation of the substantive
procedural law of the Member States which is likely to be highly contentious.
In addition, the harmonisation would most probably not be able at this stage to
cover all elements of the procedure, still leaving several issues to be
regulated by national law. As a result, despite the harmonisation, the
procedure would not be uniform in all Member States. This would reduce legal
certainty and the objective of offering one single uniform legal procedure for
creditors in Europe. 
For these reasons, this option was discarded
from an early stage.   
6.            Analysis
of impacts of the policy options
The following tables compare the impacts of retaining the status
quo and the impact of the policy sub-options (-3: very negative
impact, -2: negative impact, -1: small negative impact, 0: no significant
change, 1: small positive impact, 2: positive impact, 3: very positive impact).
6.1.        Policy
Option 1: Status quo (Baseline scenario)
The situation under the
Status Quo is presented in Section 3 Problem Definition. 
6.2.        Policy
Option 3: Revision of the Regulation
The revision of the Regulation should
respond to the problems identified in Section 3. For each element of the
revision, the sub-options have been considered and are analysed below. Sub-option
0 – the status quo – is always rated 0.
6.2.1. Assessment of the impacts of the
sub-options concerning an extension of the threshold
UK and NL support the raising of the
threshold[60],
but also ES, PT, EL and RO[61]
see the advantage of making the procedure available for businesses. BE and IE –
both having national simplified procedures not going beyond €2,000 – have also been supportive.   
               || Sub-option 1 || Sub-option 2 || Sub-option 3 
 Description || Raising the threshold from €2,000 to €5000 || Raising the threshold from €2,000  to €10 000 || Raising the threshold beyond €10 000 
 Impacts on the costs of the procedure || Simplified procedure In the five Member States in which claims with a value of €5,000 benefit from a simplified procedure for small claims, it is assumed that raising the threshold to €5,000 will not result in a reduction of costs even though the costs might be reduced in some of those countries in regard to the current ESCP and cost reductions can be assumed to be made under the revised ESCP (see problem definition 3.3). Ordinary procedure In the 22 Member States in which claims with a value of € 5,000 do not benefit from a simplified procedure for small claims, raising the threshold to € 5,000 will result in a significant reduction of  about €1,050 of the costs of litigation in cross-border cases concerning claims with a value between € 2,000 and € 5,000[62]   || Simplified procedure In the three Member States (UK, LU, NL) in which claims with a value of €10,000 benefit from a simplified procedure for small claims, raising the threshold to €10,000 in ESCP cases will have some, albeit limited impact.  Ordinary procedure In the 24 Member States in which claims with a value up to € 10,000 do not benefit from a simplified procedure for small claims, raising the threshold to € 10,000 will result in a significant reduction of about €1,250 of the costs of litigation in cross-border cases concerning claims with a value between € 2,000 and € 10, 000 euro.[63]   || Simplified procedure This concerns only  NL, where a simplified procedure exists for cases up to € 25,000. Even here, the extension of the scope of the ESCP to claims above €10,000 is likely to have some impact. Ordinary procedure In all other Member States, savings per case can be expected to be at least as large as in sub-option 2   
 Impact on the length of the procedure || The average duration of litigation is expected to be reduced both in the Member States where claims with a value higher than €2,000 euro benefit from a simplified procedure for small claims (reduction by on average 1 months) and in the Member States where such claims  do not benefit from a simplified procedure for small claims (reduction with on average 7 months). 
 Implementation costs for public authorities || - || - || - 
 Administrative burden || - || - || - 
 Impact on the efficiency of the courts in dealing with cross-border small claims || Raising the threshold to €5,000 will indirectly result in efficiency gains for the judicial systems of the Member States, in particular the 22 member States which do not have simplified national procedures for claims up to €5,000. Litigation in certain cases which currently takes place under the national procedures of the Member States can as a result of the increase of the threshold benefit from litigation under the ESCP. || Raising the threshold to €10,000 will result in even more efficiency gains for the judicial systems of the Member States, as more cases could potentially use the simplified procedure in 24 Member States.   || Although raising the threshold to above  €10,000 will result in even more efficiency gains for the judicial systems of the Member States, a simplified procedure is suitable only for claims up to a value where the positive impacts of speeding up the litigation and reducing the costs still outweigh the possible risks due to the simplification of procedure in high value cases. 
 For all three scenarios, raising the threshold will bring about additional applications to the courts under the ESCP. However, it is likely that a significant number of these cases would have been brought before the courts under national procedural law in the absence of the ESCP, so that the ESCP would to a large extent result in a shift of cases from the national (ordinary or simplified) procedures to the ESCP, rather than a pure increase in the number of cases. Moreover, increased caseload under the ESCP does not necessarily mean increased workload. First, it is reasonable to assume that courts who regularly deal with ESCP cases will gain more knowledge of the procedure and consequently be able to deal with such cases in a more efficient way. Second, the simplification of the procedure, in particular its written character and the use of standard forms, also results in a decrease of the courts' workload per case. Thus, the workload per case is likely to decrease. Finally, even if the introduction of the ESCP results overall in additional caseload for the courts, this cost should be off-set against the benefits from the reduction of consumer and SME detriment stemming from claims which would no longer be abandoned because court action is thought to be cumbersome, disproportionately expensive or lengthy. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial(Article 47(2) ) is guaranteed, since the amendment will result in increased access to justice in more cross-border cases involving claims of a small value.. The potential risk of increasing the threshold is that it may draw within its scope disputes for which the entirely written procedure of the ESCP poses risks for the guarantee of the fundamental right to a fair trial. There is a widely held view that with the increased value of the transaction, the parties also need increased procedural guarantees, such as the possibility to request an oral hearing and the possibility to appeal the decision. For this reason, any increase in the threshold should be accompanied by some additional procedural guarantees to protect the rights of the parties where disputes are of a higher value. For example: - an oral hearing should always be held, at the request of at least one of the parties, when the claim has a value in excess of €2,000; - since risks are higher for the defendant, especially if he is a consumer, Form C annexed to the proposal could be amended to contain a warning to the defendant that a judgement can be given and liability for litigation costs incurred even if he does not respond or object to the claim. 
 Overall rating || 2 || 3 || 1 
Conclusion 
Since increasing the threshold to € 5,000
only addresses part of the problems, and a further raise to claims beyond € 10,000
has to be discarded having regard to the fact that the positive impacts of
speeding up the litigation and reducing the costs would no longer overweigh the
possible risks due to the simplification of procedure, the preferred sub-option
is to increase the threshold to € 10,000 (Sub-option 2). The proposed threshold of €10 000 is proportionate in view of the average amount of disputes
involving SMEs (which is € 39
700) and of the percentage of cross-border disputes involving SMEs below that
threshold (about 50% of all business cross-border disputes). As for consumer
disputes, in view of the fact that the vast majority of cross-border claims
(71%) is under €2 000 and of
the procedural guarantees mentioned above, raising the threshold is not
expected to pose particular difficulties.
6.2.2. Assessment of the impacts of the
sub-options concerning the extension of the "cross-border" definition
   || Sub-option 1 
 Description || Extending the scope to cover all small claims with a cross-border element 
 Impacts on the costs of the procedure || Reduction of costs for those citizens who have small claims currently falling outside the scope of the Regulation and who could benefit from the simplified procedure. This is particularly true for those citizens who do not have access to an alternative simplified procedure for small claims in national law and could save on average €1,050. 
 Impact on the length of the procedure || The average duration of litigation is expected to be reduced both in the Member States where claims with a value higher than €2,000 euro benefit from a simplified procedure for small claims (reduction by on average 1 months) and in the Member States where such claims  do not benefit from a simplified procedure for small claims (reduction with on average 7 months). 
 Implementation costs for public authorities || - 
 Administrative burden || - 
 Impact on the efficiency of the courts in dealing with cross-border small claims || More consumers and SMEs will be able to benefit from an extension of the scope to all cross-border cases. The cost and time reduction will be significant in particular for those litigating in Member States which do not currently have a simplified procedure for small claims. 
 Impacts on ffundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial(Article 47(2) ) will also also be guaranteed, since the amendment will result in increased access to justice for claims of a small value in all cross-border cases.  
 Overall rating || 1              
6.2.3. Assessment of the impacts of the
sub-options concerning the inefficiency derived from the priority given to
postal service over electronic service
The sub-options below only concern the
service of documents. It is expected that electronic application of ESCP cases
will soon be possible in all Member States, either via national or European
systems (such as e-Codex).
   || Sub-option 1 || Sub-option 2 
 Description || Postal service and electronic means of service would be on an equal footing, and given priority over other means of service. Parties should agree in advance with the use of electronic service. || The Member States must ensure the possibility to serve documents via electronic means and allow parties to choose the method of service of documents. 
 Impacts on the costs of the procedure || Costs savings would be possible only for litigation in the Member States that decide to implement electronic service of documents. In these cases, the cost savings would be about € 5 to €18 for a minimum of 3 documents which need to be served. Some Member States already have the necessary means for electronic service. Cost savings would first occur in these Member States. More countries may provide for this possibility in the next years due technological advancements.   Parties should still be able to choose whether to use electronic or traditional service. In particular elderly citizens, who have a lower absorption rate of electronic communication means, may not be able or willing to use electronic communications instead of postal services. || Through the implementation of electronic means of service, consumers and SMEs would benefit from cost savings relating to postal costs due to the possibility of electronic service. Parties should still be able to choose whether to use electronic or traditional service. In particular elderly citizens, who have a lower absorption rate of electronic communication means, may not be able or willing to use electronic communications instead of postal services. SMEs are generally more likely to be willing to communicate electronically. Hence, the potential cost savings are expected to be higher for SMEs than consumers. 
 Impact on the length of the procedure || With use of electronic service, the procedure could be speeded up at least by 3 to 9 days, depending on the postal services previously selected by the parties and courts. Again, this would only be possible in the Member States that make the decision to implement electronic servicing of documents in addition to postal services. || With electronic service, the procedure could be speeded up by 1 to 3 days per submission. 9 days per case could be saved as a consequence.   
 Implementation costs for public authorities || No additional costs are required. Member States make electronic service available to ESCP cases when they put in place this service method for domestic procedures. || A national online application system for small claims, as well as well as eSignature solutions would entail considerable costs for the Member States. furthermore, in those Member States which do not have such applications for domestic cases, imposing an obligation which would affect only cross-border cases may impose disproportionate  implementation costs when compared to the overall benefits achieved. 
 Administrative burden || No additional administrative burden. On the contrary, extending electronic service to ESCP cases would result in a reduction of the administrative burden overall.    || With this sub-option, the removal of administrative burden could impact on all courts, not only in those which accept already electronic service. The administrative burden would be relieved only if domestic cases (or a mass number of these) would also benefit from electronic service. 
 Impact on the efficiency of the courts in dealing with cross-border small claims || Efficiency gains could be realised through opening up the possibility for courts to use electronic service of documents instead of postal service. This type of service entails less costs and time in handling communications by the courts. In many Member States, the costs of postal service are born by the courts, and these costs alone could surpass the amount of court fees paid by the applicant. In the long run, this sub-option would create a favorable legal environment for the implementation of fully electronic procedure in all the Member States. || This suboption will impose an obligation on the Member States to enable all courts competent for ESCP cases to use electronic service of documents. For the efficiency of the judicial systems of the Member States, this method of service could prove to have a significant impact  only if it would apply in domestic cases as well. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial(Article 47(2) ) is not negatively affected since electronic services with an acknowledgement of receipt will be used only when parties so agree in advance. 
 Overall rating || 2 || 1              
Conclusion 
Sub-option 1 is the preferred option, since
although it does not have the same cost and time reduction as Sub-option 2, it
also does not create disproportionate implementations costs for the Member
States which do not have electronic communication facilities in place.
6.2.4. Assessment of the impacts of the
sub-options concerning the low up-take of distance communication technology for
oral hearings and taking of evidence
Although many Member States think that the
use of distance means of communication for oral hearings should be left to the
discretion of the judge even where they are in place, no compelling arguments
were advanced in support of this position.
   || Sub-option 1 || Sub-option 2 
 Description || Oral hearings must be organised through means of distance communication in all ESCP cases where the courts have the necessary equipment in place, unless the party concerned requests to be present in court. || Oral hearings must be organised through video-conference or other means of distance communication in all ESCP cases, unless the party concerned requests to be present in court. 
 Impacts on the costs of the procedure || This option would have a limited impact, as only those consumers and businesses which have their claims in courts fitted with distance communication equipment would benefit from cost savings. The impact of this option is further reduced by the fact that even if the courts hearings the case have the necessary equipment, this could not be used unless the court at the domicile of the person which needs to be heard is not already fitted with such equipment..  The aggregate cost savings are therefore reduced. || Although it can be expected that the vast majority of courts could easily be fitted with at least one means of distance communication, in practice some Member States declare that their courts have a preference for the parties' presence in court. The potential travel costs related to the procedure would decrease for all consumers and SMEs by at least €300 and €700, assuming that only one party needs to travel from another Member State. In reality the cost savings could be higher, if both parties and even experts and witnesses need to travel for oral hearings or taking of evidence by such means. The aggregate cost savings are significant. 
 Impact on the length of the procedure || A party is expected to save at least 9 hours (75%) every  time a videoconference or teleconference was organised, if it is has access to a court with videoconferencing or telecommunication tools in his/her Member State and if the court in which the claim was filed has access to video or teleconferencing tools. The aggregate time savings are however limited since only disputes where both the court with jurisdiction and the court requested to take evidence are equipped with distance means of communication. || A party is expected to save at least 9 hours (75%) every  time a videoconference or teleconference was organised, if it is has access to a court with videoconferencing or telecommunication tools in his/her Member State and if the court in which the claim was filed has access to video or teleconferencing tools. The aggregate time savings are much higher if all courts were equipped with distance means of communications. 
 Implementation costs for public authorities || This option will not require any implementation costs. || Cost-effective means of distance communication exist (e.g. Skype-like facilities) or can easily be installed at no significant cost in all Member States' courts (telephone conference). There is no reason to suspect that Skype-like facilities prejudice the rights of the parties when compared to other video-conference equipment. It is estimated that Internet connection as well as teleconference equipment could be installed at an average cost of €500 per court. The purchase of a videoconference system is estimated to cost up to around €20,000. 
 Administrative burden || No additional administrative burden. || There may be a slight increase in the administrative burden of those courts of the domicile of the person which needs to be heard via distance means. This however will be off-set by the reduction in the administrative burden achieved by those courts when they have jurisdiction in ESCP cases and request oral hearings via distance means in other Member States. 
 Impact on the efficiency of the courts in dealing with cross-border small claims || Distance hearings could be easier to organize at a shorter notice, leading to additional efficiency in the organisation of the work of the courts. Furthermore, while presence to an oral hearing is not compulsory, it would nevertheless be encouraged because of the reduction of costs and time for the parties, leading to a better and faster resolution of disputes. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial (Article 47(2)) is guarateed since an exception to compulsory videoconference or teleconference hearing will always be made for the party who wishes to appear in court. 
 Overall rating || 2              || 1 
Conclusions
The use of videoconferencing or other
communication technologies enables consumers and SMEs to save both travel time
and costs. As it can be expected that a vast majority of courts, if not all,
already have a telephone service or internet connection and could easily and
without significant costs implement telephone conferencing or Skype-like
conferencing equipment, sub-option 2 is the preferred option.  
Most affected by this option would be
Member States in which many courts with competence to try ESCP cases do not
have any distance means of communication installed already. For example, BG
does not have distance communication equipment in its 113 regional courts
competent for ESCP cases, while FR and UK have such equipment in about 50% of
their courts. The investment in such equipment however would not only serve
ESCP cases, but could be used also in domestic disputes where parties are
located at great distances from the courts with jurisdiction or in cross-border
disputes which are outside the scope of the ESCP. Taking the example of BG, the
costs for installing distance communication equipment in their courts would be
approximately €56,500[64]; by comparison, the savings
for the parties if travel would be needed for at least one of them and assuming
that an oral hearing is carried out in 40% of cases would be between €0.7 and €1.7 million[65].

In France, where less than 50% of the 442
courts and tribunals competent to try ESCP cases are equipped with distance
means of communication for carrying out oral hearings, installation costs could
amount to €110,500, for
corresponding savings to the parties of between €6.5 and €15 million.
6.2.5. Assessment of the impacts of the
sub-options concerning disproportionate court fees
Many Member States are opposed to the
harmonisation of court fees at EU level (although some – UK for example - , are
also sensitive to arguments about the disproportionality of court fees). Some
Member States are however in favour of such harmonisation (BG, ES, PT, SI and
SK). 
   || Sub-option 1 || Sub-option 2 
 Description || Introduction of a limitation of court fees to a maximum of 5% of the value of the claim. The Member States can decide to use the limitation or set lower court fees. The minimum fee, if charged in a Member State independently of the value of the claim, cannot exceed €45.  || Introduction of a limitation of court fees to a maximum of 10% of the value of the claim. The Member States can decide to use the limitation or set lower court fees. The minimum fee, if charged in a Member State independently of the value of the claim, cannot exceed €35.  
 Impacts on the costs of the procedure || With the introduction of the limitation of maximum 5% of the value of the claim, combined with a minimum court fee of no more than €45, the average court fees for claims below €10,000 would decrease in several Member States. However, the direction and the intensity of impacts on the Member States would vary depending on the current level of court fees.  Cost reductions will be achieved by parties litigating in those Member States where currently court fees are disproportionate for claims of under €2,000. However, the magnitude of the impact differs among these Member States. For example, for claims of € 1,000 EE, FI, DE, LV, NL, and PT would need to significantly lower their court fees (by over 50%), while for claims of €2,000 only court fees in EE, DE, LV and NL would be significantly affected.   || With the introduction of the limitation of maximum 10% of the value of the claim, combined with a minimum court fee of no more than €35, the average court fees for claims below €10,000 would decrease in some Member States. For claims of €1,000, significant cost reduction will be achieved by parties litigating in EE, DE, LV and the NL (in the case of NL, by over 50%), while for claims of €2,000 only in LV the cost reduction is significant (by about 25%). There is almost no impact for claims above €2,000. 
 Impact on the length of the procedure || The limitation of court fees will not impact the length of the procedure. 
 Implementation costs for public authorities || The limitation of court fees does not require specific implementation measures. Member States routinely amend their legislation pertaining to court fees. 
 Administrative burden || There will be no new administrative burdens. 
 Impact on the efficiency of the courts in dealing with cross-border small claims || In those Member States where court fees have the function of financing the judicial system, the true impact can only be measured taking into account on the one hand the simplification achieved by this procedure which is expected to reduce the average workload per case for the courts, and on the other hand the reduction in income for the courts as a result of lowering the court fees for ESCP cases of below €2,000.  Since these are likely to cancel themselves out, it cannot be said that this option leads to a shift of these costs from citizens to courts and governments, but rather that a reduction in the workload per case is translated in a reduction of court fees. The example of the NL could be taken to illustrate the potential reduction in the income derived from court fees. In the long term there could be approximately 1,366 ESCP applications[66] under € 2,000 in the NL. If the average court fee reduction is of €84[67], the estimated total potential reduction in income from court fees is €114,744.   However, the impact of this figure should be balanced against the increased access to justice for consumers and SMEs having cross-border claims.. || The same considerations under Sub-option 1 apply mutatis mutandis to Sub-option 2. However, the reduction in the income of the courts would be somewhat smaller. For example, the potential reduction in income from court fees in the NL for instance would be about €65,227, calculated for an average court fee reduction of €47,75. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial (Article 47(2)) of the Charter is guaranteed, since the measure will reduce litigation costs in those Member States where these are disproportionate, and, thus improve access to justice for both consumers and  SMEs and, in the long run, facilitate cross-border trade. 
 Overall rating || 1 || 2 
Conclusion
Sub-option 2 is the preferred policy
sub-option since it would achieve a reduction in the disproportionate costs for
a large proportion of small claims, while at the same time have a slightly less
impact on those Member States where court fees also have the function of
financing the justice systems and on those Member States where court fees can
be considered to be proportionate despite being above 5%. 
The proposal is proportionate in that it
does not intend to harmonise the court fees in the Member States – there will
be still wide discretion for the Member States to decide on the method of
calculation and the amount of court fees. Instead, the revision would set a
maximum cap on court fees for ESCP applications, calculated as a percentage of
the value of the claim above which court fees are considered to be
disproportionate to the value of the claim and therefore to impede access to
justice for claimants with small value claims. Furthermore, the measure allows
the Member States to maintain a fixed minimum court fee which however should
not be prohibitive. Finally, the measure is proportionate given the specific
nature of cross-border disputes which – as opposed to domestic disputes –
routinely require the claimant to incur additional costs, such as translation
costs and, if oral hearings are organised, travel and interpretation costs, as
well as the reduced workload per case under this simplified procedure.
6.2.6. Assessment of the impacts of the
sub-options concerning the unavailability of on-line payment methods for court
fees
The costs of installing distance means of
payment will be affecting only those Member States where such means are not
available already. However, more and more Member States have recently
implemented such measures (France for example in 2012). In the EJN discussion
of 29-30 May most Member States who took the floor agreed that such distance
means of payment should be available throughout the EU for ESCP cases.
   || Sub-option 1 || Sub-option 2 
 Description || Ensure mandatory acceptance of at least bank transfers as distance means of payment. || Ensure mandatory acceptance of at least bank transfers and credit/debit cards as distance means of payment. 
 Impacts on the costs of the procedure || Consumers and SMEs will no longer face practical obstacles related to the inadequacy of local payment methods (e.g. non-availability of cheques) or travel costs. Citizens would most gain from the mandatory acceptance of bank transfers if they are domiciled in the Eurozone, and if the court in which they filed the claim is also in the Eurozone. Non-Eurozone transfers would entail small additional costs. Savings are estimated to amount from about 380€ to 780€ for Eurozone residents that have to travel for cash payment at the court under the current Regulation. Note that there might be a small difference for non-Eurozone residents. Savings would be of 12 € to 16 € for Eurozone consumers using bank transfer over checks. There would be no gains for non-Eurozone consumers. || Consumers and SMEs will no longer face practical obstacles related to the inadequacy of local payment methods (e.g. non-availability of cheques) or travel costs. Savings would amount from €312 to €781 per claim if credit card and bank transfers are used instead of cash. Savings would range between 12 € and 16 € if bank transfers were used instead of checks. There would be not benefit, in terms of cost, of using credit cards instead of checks.   
 Impact on the length of the procedure || Time saved for consumers and SMEs previously not using distance payment methods could be up to 12 hours if travel is currently needed. 
 Implementation costs for public authorities || Costs of implementing the mandatory acceptance of bank transfers are expected to be minor. Cost of introducing on-line credit card payment methods may differ depending on the administrative organisation of the court systems in each Member State. It is estimated that at least a fixed cost of approximately € 14,400 per territorial authority is necessary, .If court fees are collected by courts instead of by territorial authority, than a possible additional cost of 20% for each court could be incurred.  Territorial authority could in some Member States be only one (for example where court fees are collected by a national authority), or several (where regional authorities are competent to collect such fees, as is the case in Germany). || Costs of implementing the mandatory acceptance of bank transfers and credit card are expected to equal to costs for sub-option 1. Both payment methods are expected to be implemented as part of the same work process at no additional cost.   
 Administrative burden || - || - 
 Impact on the efficiency of the courts in dealing with cross-border small claims || The courts that currently do not provide for a possibility of distance payments by distance means would face costs relating to setting up and maintaining these systems. Payments currently may be processed at distance in some Member States, for example AT, FI, DE, LV, LT and PL. The change will ensure that all Member States will have such distance means of payment in place. The overall efficiency of judicial system is likely to increase as internal processes are expected to gain speed with administrative costs decreasing. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial (Article 47(2)) of the Charter is guaranteed, since the measure will reduce litigation costs and length of proceedings, thus improve access to justice for both consumers and  SMEs and, in the long run, facilitate cross-border trade. 
 Overall rating || 1              || 2 
Conclusion
The mandatory
acceptance of both credit card and bank transfers would provide significant
benefits to SMEs and consumers, for limited implementation cost. Sub-Policy
option 2 should thus be selected because it offers more distance payment
options for the citizens, at no additional costs for the courts. 
6.2.7. Assessment of the impacts of the
sub-options concerning the removal of the obligation to translate form D
(Certificate of judgment for enforcement), except for Section 4.3
   || Sub-option 1 
 Description || The sub-option consists in removing the requirement for the party seeking enforcement to provide a translation of form D into the official language of the country of enforcement. An exception will be made for Section 4.3 (Substance of the judgment), which will still need to be translated in accordance with Art. 21(2). 
 Impacts on the costs of the procedure || The expected cost savings for the claimant would be  €20 to €40 (i.e. the cost of translating section 4.3 of form D). 
 Impact on the length of the procedure || The change does not impact the overall length of the proceedings or the enforcement of the judgment. 
 Implementation costs for public authorities || No implementation costs, since the translation of Section 4.3 is still the responsibility of the party seeking enforcement. 
 Administrative burden || - 
 Impact on the efficiency of the courts in dealing with cross-border small claims || There will be no delays as a result of this change.  
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial (Article 47(2)) of the Charter is guaranteed, since the measure will reduce litigation costs and length of proceedings, thus improve access to justice for both consumers and  SMEs and, in the long run, facilitate cross-border trade. 
 Overall rating || 1 
Conclusion
Sub-option 1 is
preferable to the Status quo since it would globally reduce the translation
costs of the party seeking enforcement by about €20 to €40 without causing
additional delays. 
 
6.2.8. Assessment of the impacts of the
sub-options concerning the introduction of a requirement  on the Member State to
ensure that information on litigation costs and method of payment of court fees
for ESCP cases is transparent
   || Sub-option 1 
 Description || Amendments to the Regulation would require Member States to ensure, in cooperation with the Commission, that the practical information on litigation costs and methods of payment of court fees is available to citizens. This includes the obligation to keep such information updated. A deadline will be introduced by the revision.   
 Impacts on the costs of the procedure || Decreased searching costs of €15-€30 per case.   
 Impact on the length of the procedure || Total searching time will be reduced by 2-3h per case.   
 Implementation costs for public authorities || No implementation costs. 
 Administrative burden || The administrative burden is not likely to be significant, since it would require maximum 2 working days. 
 Impact on the efficiency of the courts in dealing with cross-border small claims || This measure will increase transparency and legal certainty for the parties. This is relevant also for the information on methods of payment even after the implementation of the obligation to accept bank transfers and credit/debit cards, since courts may also accept other methods of payment. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts || Right to a fair trial (Article 47(2)) of the Charter is guaranteed, since the measure will reduce litigation costs and length of proceedings, thus improve access to justice for both consumers and  SMEs and, in the long run, facilitate cross-border trade. 
 Overall rating || 1 
Conclusions
Sub-option 1 is
preferred for reasons of reduced costs and search time, and increased
transparency and legal certainty for the parties. 
6.2.9. Assessment of the impacts of the
sub-options concerning the introduction of a an obligation on the Member State to
ensure that the information on the availability of assistance in completing the
ESCP forms is transparent
   || Sub-option 1 
 Description || Amendments to the Regulation would require Member States to ensure, in cooperation with the Commission, that the information on practical assistance in filling in the forms is available to citizens. This includes the obligation to keep such information updated. A deadline will be introduced by the revision.   
 Impacts on the costs of the procedure || Providing more information on where to obtain limited assistance in filling in the forms would result in cost savings for the claimant due to reduced searching time (opportunity cost) on where to get assistance of about €15 to €30. 
 Impact on the length of the procedure || The proposed change could reduce searching time of claimants on how to get assistance from 4h to 3h or 2h depending on the level of awareness and the preferred source of information, as well the time to fill in forms due to the provision of assistance. Similar to the status quo, time savings might be significant from the point of view of the claimant but do not influence the overall length of the proceedings of up to 6 months. 
 Implementation costs for public authorities || No implementation costs. 
 Administrative burden || The administrative burden is not likely to be significant. Member States already have to provide certain information currently. This modification will only slightly increase this obligation. It is estimated that the provision of this additional information  would not require more than 2 working days. 
 Impact on the efficiency of the courts in dealing with cross-border small claims || The proposed change to the Regulation would lead to more transparency on the assistance provided by Member States. The proposed change to the Regulation does not address the fact that limited assistance is provided in filling in the forms. However, non-legislative measures taken in the context of the status quo will improve the situation to some extent. 
 Impacts on fundamental rights affected and measures taken to mitigate negative impacts ||  Right to a fair trial (Article 47(2)) of the Charter is guaranteed, since the measure will reduce litigation costs and length of proceedings, thus improve access to justice for both consumers and  SMEs and, in the long run, facilitate cross-border trade. 
 Overall rating || 1 
Conclusions
Sub-option 1 would
improve transparency on roles and responsibilities in providing assistance to
fill in the forms, thus improving access to justice in particular for consumers
and SMEs.  
7.           Comparison
of the options and summary of the preferred option
On the basis of
the assessment above, the preferred option is Policy Option 3 with the
following combination of sub-options:
·       
Raise the threshold to €10,000: by making the simplified procedure available also to claims valued
between €2,000 and €10,000, the costs of litigation in such cross-border cases
will be reduced significantly.  While raising the threshold may be less
important for consumers, since most of their claims do not exceed €2,000, it
will be highly beneficial for SMEs, as the revised threshold would cover some 50%
of their claims. 
·       
Extend the territorial scope of the
Regulation to cover all cases which are not purely
domestic.  
·       
Ensure that the electronic service will
be on an equal footing with postal service; this will reduce overall costs and
time needed for transmission of documents.
·       
Introduce an obligation, in case oral hearings
are necessary, to organise such hearings by distance means, such as
video-conference, including via Skype-like equipment, or teleconference, unless
a party requests to be present in court and that only for that party: advantages include the reduction of travel time and costs for SMEs
and consumers. 
·       
Limit court fees to 10% of the value of the
claim combined with a maximum of possible fixed minimum fees set at national
level of no more than €35: Setting a maximum fee
allowed for cross-border small claims procedures would reduce costs in those Member
States where the fees are disproportionate to the value of such claims. This
may increase the attractiveness of the procedure for claimants. The limit set
to the minimum fee is aimed at ensuring sufficient access to justice while
leaving Member States flexibility to set a minimum fee to discourage abusive
litigation.
·       
Ensure mandatory acceptance of at least bank
transfers and credit/debit card as means of payment of fees: the overall efficiency of the judicial system is likely to
increase, since parties will experience reduced costs and time and public
authorities are likely to incur only minor implementation costs.
·       
Remove the obligation to translate Form D,
except for Section 4.3 (substance of the judgment): this solution will reduce enforcement costs.  
·       
Introduce a requirement on the Member States
to make the information on litigation costs and the method of payment of court
fees transparent. 
·       
Introduce a requirement on the Member States
to make the information on the availability of practical assistance in filling
in the forms transparent. 
To address concerns about the possible
adverse impact on fundamental rights, a number of safeguards will be
proposed:
·
courts will not be able to refuse an oral
hearing carried out by ICT for claims between €2,000 and €5,000 if at least one
party requests it;
·
electronic services with an acknowledgement of
receipt will be used only when parties so agree;
·
an exception to compulsory videoconference or
teleconference hearing will always be made for the party who wishes to appear
in court. 
The impacts of the comprehensive policy options (Status Quo and
Policy Option 3) were assessed in terms of their expected achievement of the
specific objectives and towards meta-criteria such as social impacts, wider
economic impacts, feasibility, etc. 
 Assessment criteria || Rating Status Quo || Rating Preferred option || Explanation 
 Effectiveness of the policy options in reaching the objectives || 0 || 2 || Provide better access to justice: the revision is expected to result in a significant increase in the number of ESCP applications. First, by increasing the threshold to €10,000, up to 217 500 new cases are expected to benefit from this procedure.  Second, the procedural improvements of the procedure for claims up to €2,000 is also likely to result in new ESCP applications, estimated in the long run to amount to  414 060 potential cases (from 3 500 in 2012).  Simplify the court procedure: the ESCP procedure will be further simplified by the use of technology which makes geographical distance – a feature of cross-border disputes – almost irrelevant. Thus, such technology will be better used in terms of speeding up communication, including service of documents, between the parties and the courts, and organizing oral hearings and making payment of court fees without the need to travel.  Reduce costs and length of litigation:  the use of modern technology will also lead to a reduction of the costs and length of the procedure. Together with the reduction of search costs for improving transparency (see below), this option would lead to a reduction of average costs per case of approximately between EUR 231 and EUR 491[68]. Improve transparency of the procedure: Member States will be required to provide the Commission with information on the court fees applicable to ESCP cases, accepted methods of payment of court fees and the authorities or institutions competent to provide practical assistance. The Commission will make such information publicly available on the Internet (on the e-Justice portal).  
 Implementation costs || 0 || 1 || Implementation costs amount to between €500 and €10,000 for distance means of holding oral hearings, depending on whether the courts which do not yet have such technologies in place invest in videoconference equipment, teleconference equipment or Internet connection. The costs of introduction of bank transfer methods of payment are negligible. Cost of introducing on-line credit card payment methods may differ depending on the administrative organisation of the court systems in each Member State. It is estimated that a fixed cost of € 14,400 is necessary. 
 Social impact || 0 || 1 || The proposed changes to the Regulation are expected to have a positive impact especially for economically disadvantaged persons, since the existence of disproportionate costs particularly affects this social group: their claims are likely to be very small, and the fear of incurring disproportionate costs will prevent them from lodging a claim. The benefits related to the distance payment and electronic communications may benefit elderly less than younger groups of consumers, since they use Internet and electronic communication means less. At the same time, due to reduced mobility, this group is also potentially the most likely to benefit from these measures. 
 Wider economic impact || 0 || 2 || By reducing the disproportionate costs and time of litigation concerning small claims in cases with a cross-border element, the proposed changes to the Regulation will improve the functioning of the ESCP and consequently improve access to justice for citizens and businesses. The likely result is increased access to justice, leading to an increase in confidence in cross-border trade and consequently an improvement of the functioning of the Internal Market. 
 Feasibility || 0 || 3 || As the ESCR is directly applicable in the Member States, most of them have not enacted supplementary national legislation in order to facilitate the application of the Regulation by their courts, and will therefore not have to adapt their national legislation as a result of the revision of the Regulation. However, some Member States, such as Germany, have integrated special provisions into their national procedural laws to adapt them to the requirements of the ESCR. Such provisions would need to be adapted if the Regulation is revised. However, this is not expected to cause specific problems. However, the following issues have been identified as potentially being sensitive or practically challenging to implement in practice in relation to the different elements: ·         Increasing the threshold to €10,000: some may question whether the ESCP procedure is appropriate for such higher value claims. This concern will be address by the additional procedural guarantees for claims between €2,000 and €10,000. ·         The mandatory provision of a possibility to pay via distance means: not all courts have such means in place: implementation costs are however minimal. ·         The introduction of a maximum 5% court fee with a maximum minimum fee if Member States wish to have such minimum fee. 
 Fundamental rights || 0 || 1 || Procedural safeguards become more important as the value of the claim increases. This is why Policy Option 3 complements the introduction of a higher threshold with a limitation of the judges’ discretion to refuse an oral hearing via ICT under the ESCP, and the use of distance means of communication with the possibility for citizens to use traditional means of communication. 
To date, only limited use has been made of
the ESCP, for the reasons set out in Section 3. However, the potential benefits
from more widespread and systematic recourse to such simplified procedures is
substantial. Every year, several hundred thousand consumers and businesses go
to court to pursue the recovery of claims for amounts of up to €10,000. To
illustrate the scale of the benefits that could be achieved by making full use
of the potential of the ESCP that would result from implementation of the
preferred option, it has been assumed that in those Member States that have a
national simplified procedure in place, 50% of these claims would take place
under the national procedure (taking into account the thresholds in the
national procedures), while the other half would be pursued using the ESCP. In
the other Member States, it is assumed that all claims would make use of the
ESCP, given the sizeable difference in the costs of pursuing a claim under the
ESCP and under a national ordinary procedure. The combined time and cost
savings of the individual elements of the preferred option account for a
potential reduction of costs of about €325 – 418 million[69]. The results of these
calculations are shown in the table below: 
 Problems || Long-term costs savings for claims below €2,000, in €millions || Long-term costs savings for claims between €2,000 and €10,000 , in €millions || Total long-term costs savings, in €millions || 
   || 414,060 || 217,500 || 631,560 ||
 Raising the threshold to €10,000 || NA || 233 || 233 ||
 Electronic service and  postal service on the same footing || 0.5 – 1.9 || 0.3 - 1 || 0.8 – 2.9 ||
 Oral hearings organized by distance means of communication || 30.6 – 71.3 || 16 – 37.5 || 46.6 – 108.8 ||
 Distance means of payment of court fees || 6.2 – 12.4 || 3.3 – 6.7 || 9.5 – 19.1 ||
 Limitation of level of court fees || 3.6[70] || - || 3.6 ||
 Removal of translation obligation of parts of Form D || 8.3 || 4.3 || 12.6 || 
 Increased transparency regarding the costs of litigation and methods of payment of court fees under the ESCP || 6.2 – 12.4 || 3.3 – 6.5 || 9.5 – 18.9 ||
 Increased transparency of actors offering assistance with filling in the forms || 6.2 – 12.4 || 3.3 – 6.5 || 9.5 – 18.9 || 
A summary of the aggregate costs of
implementing the revision by a sample of Member States for which the relevant
data was available is given in the table below:
   || Competent courts for hearing ESCP cases[71] || Population, in millions || Installing distance means of communication for oral hearings[72] || Installing distance means of payment methods[73] || Possible reduction in the revenue obtained from high court fees[74] 
 AT || 134 courts || 8.5 || - (distance communication equipment for oral hearing in place) || - (distance mean of payment in place) || €3,520[75] (court fees slightly disproportionate for €200 and €500 claims) 
 BG || 113 courts  || 7.3 || €56,500 (for all courts) || €14,400   || - (court fees are currently under the proposed cap) 
 FI || 1 court || 5 || - || - || €105,570 (court fees disproportionate for claims of €200, €500 and €1,000) 
 FR || 442 || 65 || €110,500 (for at least 50% of courts) || -   || -   
 IT || 846 || 61 || €211,500 (for at least 50% of courts) || €14,400 || - 
 LT || 49 || 3 || €12,250 (about 50% of courts) || - || - 
 PL || 287 || 39 || €3,063 (for at least 50% of courts) || - || - 
 SK || 54 || 5.4 || €27,000 (for all courts) || €14,400 || - 
 UK || 181 || 63 || €90,500 (about 50% of courts) || €14,400 || €136,640 (court fees disproportionate for €200 and €500 claims) 
It should be noted that the Member States
decide exclusively on the number of courts competent for ESCP applications.
This decision also influences the aggregate costs of implementation. 
8.           Monitoring
and evaluation
In order to monitor the
effective application of the amended Regulation, regular evaluation and
reporting by the Commission will take place. To fulfil these tasks, the
Commission will prepare regular evaluation reports on the application of the
Regulation, based on consultations with Member States, stakeholders and
external experts. Regular expert meetings will also take place to discuss
application problems and exchange best practices between Member States in the
framework of the European Judicial Network in civil and commercial matters.
In most Member States,
there is no systematic collection of statistical data on the application of the
European Small Claims Procedure, which makes it very difficult to measure how
the Regulation improves access to justice in respect of small claims in
cross-border situations. The Commission will therefore include in the revision
of the Regulation a requirement on Member States to provide information on how
the Regulation is applied in practice, notably on the number of proceedings
brought under the ESCP. 
The indicators to screen efficiency and
effectiveness are as follows:
- increase in the number of ESCP applications,
both of claims under EUR 2 000 and between EUR 2 000 and EUR 10 000 –
information from EJN, Eurobarometers, ECC-Net;
- reducing the overall costs and time of
the procedure per case, including translation costs of Form D – Eurobarometers,
ECC-Net;
- improve the transparency of the
information on court fees and methods of payment as well as on practical
assistance – Eurobarometers, ECC-Net;
- reduction of the workload of the courts
per case by using the procedure as opposed to using national ordinary or
simplified procedures – EJN, interviews with judges in several Member States.
9.           Annexes
Annex 1
Table
of abbreviations
 ADR || Alternative Dispute Resolution || DG MARKT || Directorate General Internal Market (European Commission) 
 EB || Eurobarometer || DG SANCO || Directorate General Health and Consumer Protection (European Commission) 
 ECC-Net || European Consumer Centres Network || EU || European Union 
 EJN || European Judicial Network || IAB || Impact Assessment Board 
 ESCP || European Small Claims Procedure || SMEs || Small and medium enterprises 
 DG ENLARG || Directorate General Enlargement (European Commission) || TEC || Treaty on the European Community 
 DG ENTR || Directorate General Enterprise (European Commission) || TFEU || Treaty of the Functioning of the European Union 
 DG JUST || Directorate General Justice (European Commission) ||   ||   
 AT || Austria || IE || Ireland 
 BE || Belgium || IT || Italy 
 BG || Bulgaria || LT || Lithuania 
 CZ || Czech Republic || LU || Luxembourg 
 CY || Cyprus || LV || Latvia 
 DE || Germany || MT || Malta 
 DK || Denmark || NL || The Netherlands 
 EE || Estonia || PL || Poland 
 EL || Greece || PT || Portugal 
 ES || Spain || RO || Romania 
 FI || Finland || SE || Sweden 
 FR || France || SI || Slovenia 
 HR || Croatia || SK || Slovakia 
 HU || Hungary || UK || United Kingdom of Great Briton and Northern Ireland 
Annex 2 Form D Certificate of
enforcement
[ANNEX IV]
EUROPEAN SMALL
CLAIMS PROCEDURE 
FORM D
CERTIFICATE CONCERNING
A JUDGMENT IN THE EUROPEAN SMALL CLAIMS PROCEDURE
(Article 20(2) of
Regulation (EC) No. 861/2007 of the European Parliament and of the Council establishing a European Small Claims Procedure)
To be filled in by
the court/tribunal
1. Court/tribunal
1.1. Name:
1.2. Street
and number/PO box:
1.3. City and
postal code:
1.4. Country:
2. Claimant
2.1. Surname,
first name/name of company or organisation:
2.2. Street
and number/PO box:
2.3. City and
postal code:
2.4. Country:
2.5. Telephone*:
2.6. E-mail*:
2.7. Claimant's
representative, if any, and contact details*:
2.8. Other
details*:
3. Defendant
3.1. Surname,
first name/name of company or organisation:
3.2. Street
and number/PO box:
3.3. City and
postal code:
3.4. Country:
3.5. Telephone*:
3.6. E-mail*:
3.7.
Defendant's representative, if any, and contact details*:
3.8. Other
details*:
4. Judgment
4.1. Date: 
4.2. Case
number:
4.3. The
substance of the judgment:

4.3.1. The
court/tribunal has ordered _________________________ to pay to ____________________

(1) Principal:
(2) Interest:
(3) Costs:

4.3.2. The
court/tribunal has made an order against _________________________ to
____________________ 
(If the
judgment was given by an appeal court or in the case of
a review of a judgment.)
This judgment supersedes
the judgment given on_____/_____/_____, case number ________, and any
certificate relative thereto.
The judgment will be recognised and enforced
in another Member State without the need for a declaration of enforceability
and without any possibility of opposing its recognition.
Done at:
Date:    ___/___/_____
Signature
and/or stamp
Annex 3 Deloitte Study
[1] EU Justice Scoreboard, available at http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm.
[2] Other simplifying elements of the Regulation are the specific time
limits for procedural acts for the parties and for the court and the loser-pays
principle limited to reasonable costs.    
[3] European Parliament Resolution of 25 October 2011 on alternative
dispute resolution in civil, commercial and family matters (2011/2117(INI)).
[4] Commission Communication to the European Parliament, the Council,
the Economic and Social Committee and the Committee of the Regions on a EU
Citizenship Report, "EU Citizens: Your Rights, Your Future", COM(2013)
269 final, pp. 15-16.
[5] COM(2012) 225 final.
[6] Deloitte, "Assessment of the
socio-economic impacts of the policy options for the future of the European
Small Claims Regulation", 19 July 2013, Part II: Assessment of the
socio-economic impacts of the policy options for the future of the European
Small Claims Regulation (hereafter: Deloitte Study, Part II), available at http://ec.europa.eu/justice/civil/document/index_en.htm.
[7] Deloitte, "Assessment of the
socio-economic impacts of the policy options for the future of the European
Small Claims Regulation", 19 July 2013, Part I: Evaluation of the European
Small Claims Regulation (hereafter: Deloitte Study, Part I).
[8] Special Eurobarometer 395 on European Small Claims Procedure,
available at http://ec.europa.eu/public_opinion/archives/ebs/ebs_395_sum_en.pdf.

[9] Several responses were received by the Commission as separate,
stand-alone documents. The results presented here in percentages reflect only
those responses encoded in the on-line consultation. However, all responses
were considered in this Impact Assessment.  
[10] AT, BG, CY, CZ, DE, EE, EL, ES, FI, FR, IT, LT, MT, NL, PL, PT, SE,
SI, SK and the UK. 
[11] In practice, other procedural acts may occur, such as the
submission of a counterclaim by the defendant, appeals or requests for review.
[12] Deloitte Study, Part I, pp. iii and section
3.3.1.1.
[13] Deloitte Study, Part I, p., iii.
[14] Eurobarometer 395. Base: All respondents
that have already used the European Small Claims Procedure (213)
[15] See Deloitte Study, Part I, p. 72 .
[16] Flash Eurobarometer 347, Business-to-Business Alternative Dispute
resolution in the EU, http://ec.europa.eu/public_opinion/flash/fl_347_en.pdf,
p. 40-42
[17] Flash Eurobarometer 347; see also Deloitte Study, Part II, p. 9.
[19] In order to estimate the costs of litigation in accordance with
national procedural law, the costs of litigating cross-border claims of €5000
and €10 000 euro in five Member States (UK, LU, ES, PL, BE) have been analysed
as illustrative examples. The estimates of the costs and time for proceedings
in these five Member States were used to extrapolate the costs of litigating
cross-border small claims of €5000 and €10 000 euro at the EU level, see
Deloitte Study, Part II, pp. 31-33. 
[20] Claims of €5000 and €10 000  have been used as examples because in
most Member States the threshold of the national simplified procedures for
small claims is either around €2000, around €5000 or around €10 000. 
[21] ES, IT, NL, LU, UK
[22] For example in ES, with minimum costs of around € 640 for a
procedure without lawyer (See: Deloitte Study, Part I, p. 28.
[23] For example in UK when looking at a procedure without lawyer (See:
Deloitte Study, Part II, pp. 23-24).
[24] Deloitte Study, Part II, p. 103.
[25]             LU, NL and UK.
[26]             Again it can be noted that this is a very conservative
assumption since – when taking into account a procedure without lawyer -  the
costs in the UK seem to be lower while the costs in LU seem to be higher than
those of the current ESCP  (See: Deloitte Study, Part II, pp. 23-27)
[27]             NL has a simplified procedure for claims of a value up
to €25.000
[28] Flash Eurobarometer 347, Business-to-Business Alternative Dispute
Resolution in the EU, (hereinafter Eurobarometer 347).
[29] Eurobarometer 347.
[30] Available at http://www.businesseurope.eu/Content/Default.asp?PageID=666.
[31] BEUC is in favour of raising the threshold
up to €10,000, which will make
the procedure more used and will therefore implicitly lead to more wide-spread
awareness of the existence and operation of the procedure. BEUC's Position
Paper is available at http://www.beuc.org/BEUCNoFrame/Docs/1/CBMADHHDIJOFOKOONLEGCFJFPDW69DBKWY9DW3571KM/BEUC/docs/DLS/2013-00412-01-E.pdf.
[32] Data collected from the Member States responses to the Commission's
Questionnaire and the EJN discussions of 30-31 May 2013. 
[33] Such a problem was reported by a Member State in the EJN
discussions on 29-30 May 2013.
[34] These are: AT, BG, CY, CZ and FI.
[35] The rules on jurisdiction for example contained in the Brussels I
Regulation do not contain such a limitation and apply to all cross-border
cases. 
[36] Such a problem was reported by a number of Member States in the EJN
discussions on 29-30 May 2013, in respect of the application of the European
Order for Payment which contains a similar limitation. 
[37] Available at http://www.ueapme.com/IMG/pdf/UEAPME_Position_Paper_on_the_Public_Consultation_on_a_European_Small_Claims_Procedure_-_201206.pdf.
[38] EE, FR AT, NL, CY, CZ, FI, PT, SI and the
UK.(England and Wales). 
[39] Berlin, Brandenburg, Bremen, Sachsen,
Hessen 
[40] On the basis of available data, it cannot be established whether in
practice all these systems are open to ESCP applications.
[41] In Germany, for example, the possibility of
an electronic submission of a claim in all courts is envisaged for 2018. 
[42] http://www.e-codex.eu/index.php/legal-community-benefits
[43] EE, MT, AT and PT seem to allow for full electronic communication
between the courts and the parties, but all Member States seem to have the technology
in place at least in some courts. In respect of small claims, CZ, EE, LV, LT,
MT, AT, PT, SI, FI, UK (England and Wales) seem to allow for the full
electronic processing of small claims, see Deloitte Study, Part II, pp. 75-76. 
[44] Oral hearings or taking of evidence will be done in accordance with
Regulation (EC) No 1206/2001 on cooperation between the courts of the Member
States in the taking of evidence in civil or commercial matters, OJ L 174/1,
27.6.2001.
[45] http://ec.europa.eu/public_opinion/archives/ebs/ebs_395_sum_en.pdf
[46] These are: BE, BG, EL, HU, LV, SK and UK-Northern Ireland, see
Deloitte Study, Part II, p. 48.
[47] CZ, FR, DE, IE, IT, PL and ES.
[48] AT, CY, EE, FI, LU, MT, NL, PT, SE and UK (Scotland).
[49] Deloitte Study, Part II, p. 62.
[50] Deloitte Study, Part II, table on p. 60.
[51] See Annex 2.
[52] Estonia (English), Cyprus (English), Malta (English), Finland
(Swedish and English), Sweden (English), France (English, German, Italian,
Spanish) – Source: X.E. Kramer, Small claim, simple
recovery? The European small claims procedure and its implementation in the
member states, ERA Forum (2011) 12: 130.
[53] https://e-justice.europa.eu/content_costs_of_proceedings-37-be-en.do?member=1
[54] http://ec.europa.eu/consumers/ecc/contact_en.htm
[55] https://e-justice.europa.eu/content_small_claims_forms-177-en.do

[56] ECC-Net Survey on the European Small Claims Procedure, available at
http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf,
, p.20.
[57] http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf
[58] Deloitte Study, Part II, p. 159, footnote 684. 
[59] See Eurobarometer 395.
[60] LU has not replied to the questionnaire send to the Member States.
[61] EJN meeting of
29/30 May 2013.
[62] Deloitte, Assessment of the socio-economic impacts of the policy
options for the future of the European Small Claims Regulation, section 4.2.1
(conclusion)
[63] Deloitte, Assessment of the socio-economic impacts of the policy
options for the future of the European Small Claims Regulation, section 4.2.1
(conclusion)
[64] 113 courts which need to be equipped x €500.
[65] (414,060 ESCP claims under €2,000 x 1.5% BG population out of the
EU total population) x 40% number of oral hearings for which at least one party
needs to travel x travel costs of between €300 – €700.
[66] Assuming that the total of 414,060 cases under €2 000 are
distributed among the Member States in proportion to their population. 
[67] Calculated as an average for a selection of claims of €200, €500,
€1,000 and €2,000.
[68] Deloitte Study, Part II, p. 66.
[69] Deloitte Study, Part II, pp. 167-169, with the exception of the
reduction of court fees which has been calculated in the Deloitte Study on the
basis of a policy option capping court fees at 5% with a minimum fee of no more
than €45, while the preferred policy option retained is a cap of 10% with a
minimum fee of no more than €35.  
[70] Obtained by adding the reduction in court fees in AT (€3,520), CZ
(€4,140), DE (€2,981,230), EE (€59,000), FI (€105,570), LV (€57,970), NL
(€65,227), PT (€124,220), SE (€14,080), UK (136,640), calculated according to
the following assumptions: the total of 414,600 potential cases under €2,000
are distributed among the Member States proportionately according to their
population; claims are distributed uniformly according to their value between €1
and €2,000 (e.g. claims below €500 represent 25% of 414,060, while claims below
€1,000 represent 50% of 414,060). Calculations are done for a selection of
claims for which court fees are disproportionate (e.g. €200, €500, €1,000 and
€2,000) for which an average court fee reduction is calculated.. 
[71] Data collected from the Responses of the Member States to the
Commission Questionnaire.
[72] Assuming the most cost-friendly solution is adopted, i.e.
Skype-like equipment or teleconference.
[73] Assuming only one central authority collects the fees.
[74] Assuming that the total of 414,600 potential cases under €2,000 are
distributed among the Member States proportionately according to their
population. Calculations are done for a selection of claims for which court fees
are disproportionate. 
[75] [(414,060 cases under €2,000 x 1,7% population of AT) / 25% number
of claims for which court fees are disproportionate] x [(€37court fee for
claims of €200 – €35 maximum cap for the minimum fee + €52court fee for claims
of €500 – €50 representing 10% of a €500 claim) / 2]
*               optional