REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Regulation (EC) No 861/2007 of the European Parliament and of the Council establishing a European Small Claims Procedure
Date: 2013-11-19
Institutions: European Commission
Subjects: civil procedure, civil proceedings, form, judicial cooperation in civil matters in the EU













EUR-Lex - 52013DC0795 - EN











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52013DC0795

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Regulation (EC) No 861/2007 of the European Parliament and of the Council establishing a European Small Claims Procedure /* COM/2013/0795 final */









REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE
on the application
of Regulation (EC) No 861/2007 of the European Parliament and of the Council
establishing a European Small Claims Procedure
1.           Introduction
Regulation (EC) No 861/2007 establishing a
European Small Claims Procedure (hereafter "the Regulation") has been
applied since January 2009 in all
Member States except Denmark. Its main features are its
written character, strict time limits for the conduct of the proceedings, the
absence of a requirement of legal representation, the use of electronic
communication, the use of standardized forms for procedural acts, and the abolition
of the intermediary procedure for declaration of enforceability of the judgment
("exequatur").
Article 28 requires the Commission to present
by the 1 January 2014 a report reviewing the operation of the Regulation. This
report is based on an external study,[1]
an on-line public consultation, replies to a questionnaire addressed to Member
States, discussions in the European Judicial Network in Civil and Commercial
Matters ("EJN") in 2011 and 2013, and input from consumers[2] and the general public[3]. 
2.           The
application of the Regulation in general
In general, the procedure is considered to have
facilitated cross-border litigation for small claims in the EU. It has reduced the
costs of litigating cross-border small claims up to 40% and the duration of
litigation from up to 2 years and 5 months to an average duration of 5 months.
In comparison to national simplified
procedures, the European Procedure has been found to be less costly as it is
simpler than national procedures. Most national procedures only remove the need
for legal representation in small value disputes before lower courts. 
However, the use of the European Small
Claims Procedure is still rather limited compared to the number of potential
cases. In this respect, the number of applications differs greatly between the
Member States, ranging between only 3 applications in Bulgaria and 1047 applications in Spain for 2012.[4]
Apart from factors like shopping habits of the population and the availability or
costs of alternative national procedures, this difference in the up-take of the
European Procedure seems to be linked in particular with the awareness of its
existence and operation.[5]
This conclusion is supported by the fact that the number of applications under
the Regulation has constantly increased since its entry into application in
2009.[6]
Eurobarometer 395 shows that two-thirds of
those who used the procedure are overall satisfied with it. 13% of respondents
was dissatisfied,17 % reported that the court was not knowledgeable of the
procedure, 16 % had difficulties in filling in the forms and 10 % sought assistance
in filling in the application form but did not receive it.
In addition, certain shortcomings are
reported as set out below. 
3.           Scope
of the Regulation
3.1.        Threshold
of €2,000 
The Regulation applies in cases where the
value of the claim does not exceed €2,000. 
The majority of the Member States have now national
simplified procedures in place.[7]
The thresholds of those procedures vary greatly, from €600 in Germany to €25,000 in the Netherlands. There has been a trend to increase the level of national
thresholds for simplified court procedures since the introduction of the
Regulation.[8]
In some Member States such increase has been significant.[9] 
Eurobarometer 347[10] shows that the threshold of
€2,000 severely limits the availability of the procedure for SMEs in particular,
whose cross-border legal disputes with another business amount on average to €39,700.
For these claims businesses have to revert to national small claims procedures
where they exist, or to ordinary civil proceedings. This may lead to disproportionate
litigation costs and lengthy proceedings. Indeed, 45% of companies which
experience a cross-border dispute do not go to court because the costs for procedure
are disproportionate to the value of the claim, while 27% do not go to court because
the court procedure would take too long. 
3.2.        The
territorial scope 
The Regulation currently applies 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 seised. This limit results in
depriving the parties who exercise their right to choose the jurisdiction of
their common domicile under Regulation (EC) No 44/2001 (the Brussels I
Regulation)[11]
over another competent jurisdiction of the use of the European Procedure. For example:
- where the contract is performed in another Member State, for example where it concerns the lease of a holiday house in another Member State;
- where the event giving rise to a tort claim
took place in another Member State, for example a car accident which took place
in a border region;
- where the judgment needs to be enforced in
another Member State, for example where the defendant has a bank account in
another Member State.
Furthermore, the limitation excludes
applications under the Regulation lodged before courts of EU Member States by
or against nationals of third countries, for example complaints of EU consumers against businesses located in a third country.
In addition, this limitation engenders
legal uncertainty. Citizens may have the expectation that more of their cross-border
cases would be covered by the Regulation and may also artificially create a
cross-border scenario as provided for in the Regulation in order to benefit
from its advantages, for example by assigning their claim to a foreign company.[12] 
4.           The
Procedure set up by the Regulation
4.1.        Jurisdiction
The jurisdiction of the courts in the
European Small Claims Procedure is governed by the Brussels I Regulation. 
Some Member States have established one or
a few specialised courts to deal with the European Small Claims Procedure (e.g.
 Finland, Malta and the Land Hessen in Germany). Such concentration has certain
advantages such as concentrating specialised knowledge of courts, language
skills and the availability of equipment with distance means of communication
which allows to save costs. Potential disadvantages for claimants who would wish
to lodge a cross-border small claim at their local court may be offset by the
increased use of electronic processing of cases and distance means of
communication.
4.2.        Written
procedure and the use of distance means of communication 
The European Procedure is in principle a
written procedure. This avoids the need to travel for the parties and saves costs and time. However, the
court or tribunal may hold an oral hearing if it considers this to be necessary
or if a party so requests. Courts are encouraged to hold oral hearings through video
conference or other communication technology if the technical means are available. 
The study shows that seven Member States/jurisdictions[13]
offer limited (less than 10% of courts) or no possibilities for the use of ICT in
court, while ten Member States/ jurisdictions[14]
offer the possibility to communicate through ICT in all courts. Even in those Member States where the
relevant equipment is available it cannot be guaranteed that the facilities are
actually used for oral hearings in the European Small
Claims Procedure due to the fact that their use is left to the discretion of
the judge. Parties at present face unnecessarily high costs when they are
requested to be physically present in court in another Member State for oral hearings. 
In Special Eurobarometer 395 one third of the
respondents indicated that they would be more inclined to file a claim if the
procedures could be carried out only in writing, without need to physically go
to court. Technology today permits the installation of distance means of communication
at quite low costs (Skype-like equipment or teleconference).
4.3.        Application,
means of service and the use of electronic procedure
The claimant can
lodge the claim with the court or tribunal directly, by post or by any other
means of communication, such as fax or e-mail, acceptable to the Member State of the court seized.
10 Member States[15] and 5 Länder in Germany[16] may allow for the electronic
submission of applications in cross-border cases (online or via e-mail). This development
is likely to increase in the future[17]
and is reflected in the context of the pilot project
e-Codex on European e-justice[18] assessing the feasibility of a centralised European e-application system
for the European Small Claims Procedure.
With respect to service, postal service
with acknowledgment of receipt is the primary method of service. Service by
electronic means can thus 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 formalities relating to service. Meanwhile, some Member States
have put in place electronic communication means for domestic procedures. Parties
to the European Small Claims Procedure cannot benefit from those modernisations
due to the rule establishing the priority of postal service over all other
means of communication. Also, it can be expected that in the coming years the
use of ICT in judicial systems will increase. 
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 Procedure indicated that they would
be more inclined to use the procedure if all the proceedings could be carried
out online.
4.4.        The
duration of litigation
The Regulation prescribes time limits in
order to speed up the litigation for small claims. Even though no sanctions are
foreseen in case of non-respect of those time limits, data show that the
duration for litigating cross-border small claims has drastically reduced
litigation since the time of adoption of the Regulation. The duration of the European
Procedure in a sample of Member States[19] show that litigation takes about 3 to 8 months with an average of approximately 5 months, compared to up to 2 years and 5 months before the adoption
of the Regulation. 
4.5.        The
removal of the obligation to be represented by a lawyer
Eurobarometer 395 found that one third of respondents who had used the European Small Claims
Procedure used a legal representative through the procedure, while slightly
more respondents used the procedure without legal assistance. In some
instances, it appears that citizens made recourse to a lawyer because they did
not benefit from free assistance or because court fees can only be paid through
a lawyer (see below sections 6 and 8.2). Even if,
therefore, the right to legal representation is a
fundamental right of all citizens, citizens should not be compelled to have
recourse to a lawyer because the rules of the Regulation are not complied with
or because of purely practical obstacles.
4.6.        The
multilingual standard forms
The Regulation provides for four
multilingual standard forms. These
forms have been available on the European Judicial Atlas together with a translation tool into all official
languages since 2008 and in the European e-Justice portal as dynamic forms with
a wizard helping to fill them in since 2011.[20]
Citizens generally think that the
application form is easy to fill in (62%), while some report difficulties
(16%). Some consumers have found the standard forms to complex on some points
such as jurisdiction, cross-border definition, calculation of interest and the
documents which need to be attached.[21] 
4.7.        The minimum standards for review of the
judgment
The exceptional remedy in Article 18 aims
at redressing the situation where the defendant was not aware of the
proceedings in the Member State of origin and was not able to properly defend
himself. While the Regulation
prescribes the conditions for opening the right for a review, the procedure
itself is governed by national law.
Review procedures similar to the one of
Article 18 of the Regulation also exist in other civil justice instruments, in
particular the European Order for Payment[22],
European Enforcement Order[23]
and Maintenance Regulation[24].
Implementation of the review procedure under the European instruments has given
rise to questions and uncertainties. In order to address such questions and
uncertainties, it is appropriate to clarify the provision in Article 18 by
taking inspiration from the
more recent provision in the Maintenance Regulation. 
5.           Recognition
and enforcement in another Member State
No problems have been reported concerning
the abolition of exequatur in the Regulation. However, some problems on the
actual enforcement have been reported to the European Consumer Centres, for
example concerning the need for translation and the lack of information
regarding enforcement procedures or contact details of enforcement agents in
different countries.[25]
Only a few Member States accept Form D of the Regulation in English and a few
other languages.[26]
This implies additional costs for the party seeking enforcement. Translation
costs are usually charged per page, despite the fact that most information is
already available in all official languages and only Section 4.3 containing the
substance of the judgment needs to be translated. 
6.           Assistance
for parties
Few specific arrangements have been put in
place in the Member States to ensure that the parties can receive practical
assistance in filling in the forms. According to
ECC-Net Report, 41 % of the Member States have reported that such assistance is
not available to citizens and Eurobarometer 395 show that 10% of respondents sought
assistance but did not receive it.
In conclusion, it appears that Member
States do not consistently provide free of charge assistance. This may play a
role in the limited use of the European Procedure. 
7.           Information
obligations for the Member States
Under Articles 24 and 25, Member States
must provide certain information necessary for the operation of the procedure. However, information on several issues which vary greatly among
Member States is currently not available: information on court fees and the
methods of payment of the latter, on national
procedures for review under Article 18 as well as on the availability of free
assistance to citizens.
Due to this lack of transparency, consumers and businesses lose
time by searching for information on costs and cannot make a fully informed decision
whether to use the procedure or not. 
8.           Other
obstacles to the application of the Regulation
8.1.        Disproportionate
court fees to the value of the claim
The evaluation shows that disproportionate
court fees is an important obstacle to the use of the procedure in some Member
States. Court fees may have to be paid up-front and may have a deterrent effect
on claimants considering court action.[27].
Eurobarometer 347 shows that 45 % of businesses do not go to court because the
cost of court proceedings would be disproportionate to the claim.[28] BEUC's position paper[29] confirms that disproportionate
court fees are a factor which discourages consumers from using the Procedure.
Court fees vary among the Member States
depending on the calculation methods in place (fixed or as a proportion of the
value of the claim or a combination of these two). Court fees of more than 10 %
of the value of the claim can be considered as disproportionate. This is
particularly valid in cross-border cases where additional costs such as
translation costs must be expected. For claims above €2,000, court fees were
found to be largely proportionate to the value of claims.
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.
8.2.        Practical
obstacles to the payment of court fees
Some practical difficulties have been
reported to the Commission regarding the payment of court fees in other Member
States. 
Payment methods differ greatly across
Member States. Most Member States allow for the possibility of at least one
form of electronic payment (debit/credit card on-line payment or bank
transfer). Wire transfer is allowed in some Member States. In a few Member
States however payment of court fees requires 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. In those countries parties need to incur
travel costs or hire a lawyer in the Member State concerned in order to be able
to pay the court fees. 
9.           Lack
of awareness of the existence and operation of the procedure
For a successful application of the European
Small Claims Procedure, 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:
Eurobarometer 395 shows that 86% of citizens
have never heard about procedure. As a result, potential claimants, in
particular consumers, either do not pursue their claims or pursue their claims
using national procedures. 
As for the courts and judges, a
survey carried out by the ECC-Net in all Member States showed that almost half
of the courts have never heard about the procedure, while the other half was
not fully informed of its details. As a consequence, a high number of courts or
tribunals are not in a position to ensure efficient assistance to
citizens as requested in Article 11 of the Regulation.
The data indicate that, despite the Member
States' attempts to increase the knowledge of courts, the dissemination of
information has not been effective. Where training was offered not only to courts but also to bailiffs and
enforcement agents, the use of the procedure increases. Also, a specialisation
of jurisdiction may in certain Member States be a means to address the problem
of low awareness among legal professionals. In conclusion, the success of the
procedure would benefit from Member States dedicating more resources and means to
improve their awareness raising measures.
The Commission on its part has tried to
address the problem of lack of awareness by a range of actions like the
publication of information together with interactive forms on several EU
websites (EJN website, European Judicial Atlas, and e-Justice Portal);
specialised training modules for judges and legal practitioners and workshops
for trainers under the Civil Justice Programme; a Practice Guide for legal
practitioners and a User Guide for citizens have been prepared together with the
EJN in civil and commercial matters and will be published in 2013.
The Commission has also promoted the
application of the procedure through financial means under the Civil Justice Programme.
Also the European Consumers Centres (ECC) provide some assistance to consumers
using the European Small Claims Procedure. 
Relevant actors also seem to have
difficulties in distinguishing between the various instruments to pursue
their claims and enforce them abroad. In particular, they are uncertain when to
use the Small Claims or the European Order for Payment Procedures and in which
cases the use of the European Enforcement Order could be beneficial. A
horizontal practice guide on how to distinguish and when to use the one or the
other instrument may be helpful for citizens and practitioners. 
10.         Conclusion
This report shows that the application of
the Regulation has generally improved, simplified and accelerated the handling
of small claims in cross-border disputes. Nevertheless, there are some
shortcomings.
The Regulation suffers from a lack of
awareness. This issue is addressed by a number of measures undertaken by the
Commission as described above. 
In some instances the Regulation was not properly
implemented. This may be remedied by clarifying some of its provisions which
have given rise to difficulties. This is the case, for example, with the lack
of transparency on certain information regarding court fees, methods of payment
and the availability of assistance in filling in the forms. 
The remaining problems are mainly due to
deficiencies of the current Regulation, for example the limited scope in terms
of the threshold and the limited definition of cross-border cases; the procedural
shortcomings relating to the priority given to postal service; the low use of
video- distance means of communication; the disproportionality of court fees in
some instances; the lack of on-line methods of payment in some Member States,
and; the unnecessary translation costs at the stage of enforcement. 
This Report is therefore accompanied by a
proposal for revision of the current Regulation and an impact assessment addressing
the problems identified above. 
[1]               Deloitte, Assessment of the socio-economic impacts of
the policy options for the future of the European Small Claims Regulation, July
2013 (hereafter: Deloitte-Study); available at:
http://ec.europa.eu/justice/civil/document/index_en.htm.
[2]               Based on individual complaints and on the following reports: Centre
européen de la Consommation/Europäischen Verbraucherschutz e.V, Procédure de
règlement des petits litiges et injunction de payer européenne: des procedures
simplifiées pas si simple dans la pratique, July 2011, available at: http://www.europe-consommateurs.eu/uploads/media/4.4.3_procedure_de_reglement_des_petits_litiges.pdf
(hereafter: CEC, Procédure de règlement des petits litiges); ECC-Net, European
Small Claims Procedure Report, September 2012, available at:
http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf (hereafter:
ECC-Net-Report). Moreover, the Study "Implementation of optional
instruments within European civil law” made to the EP by Ms B. Fauvarque-Cosson
and Ms M. Behar-Touchais in 2011 was taken into account. (available at: http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=72928).
[3]               Special Eurobarometer 395, European Small Claims
Procedure, April 2013 (hereafter: Special EB 395), available at:
http://ec.europa.eu/public_opinion/archives/ebs/ebs_395_en.pdf.
[4]               There is no data available in regard to the type and
characteristics of the cases, but in regard to the threshold of €2.000, it can
be assumed that the Regulation was predominantly used by consumers. Also
Special EB 395 focused on its perception by EU-citizens.
[5]               According to the Spain answer of the questionnaire
trainings have not only been addressed to courts and judges like in most of the
other Member States – if at all – but also to bailiffs and enforcement agents. See
also: Deloitte-Study, Part I, section 3.3.2.1, pp. 73-74. 
[6]               See: Deloitte-Study, Part I,
3.3.2.1, pp. 66-67 (table 19) providing an overview over the responses of the
Member States to the number of applications and judgments of the ESCP. 
[7]               Only Austria, Bulgaria, Cyprus, Czech Republic and Finland do not have such a procedure. See: Deloitte-Study, Part I, section
3.3.1.1, p. 53.
[8]               For example, in Estonia, France, Hungary, Ireland, Italy, Lithuania, Slovenia, Spain, the Netherlands and UK.
[9]               In the UK, from £5,000 to £10,000, in the Netherland
from €5,000 to €25,000; see: Deloitte-Study, Part I, section 3.3.1.1, pp. 52-53.
[10]             Flash Eurobarometer 347,
Businesses-to-Businesses, Alternative Dispute resolution in the EU (hereafter:
Flash EB 347), pp. 40-42, available at: http://ec.europa.eu/public_opinion/flash/fl_347_en.pdf.
[11]             Council Regulation (EC) No 44/2001 on jurisdiction and
the recognition and enforcement of judgements in civil and commercial matters,
OJ L 12, 16.1.2001, p.1.
[12]             Such cases have been signalled during the discussions
in the EJN.
[13]             Belgium,
 Bulgaria, Greece, Hungary, Latvia, Slovakia, UK – Northern Ireland.
[14]             Austria, Cyprus, Estonia, Finland, Luxembourg, Malta, the Netherlands, Portugal,
 Sweden and UK – Scotland.
[15]             See: Deloitte-Study, Part I,
section 3.3.2.2, pp. 76-77: Austria, Estonia, Cyprus, Czech Republic (although when submitted by e-mail or fax, original must be submitted subsequently), Finland, France, the  Netherlands (though not used in practice), Portugal, Slovenia, UK (England and Wales).
[16]             Berlin, Brandenburg, Bremen, Sachsen, Hessen. 
[17]             In Germany, for example, the possibility
of an electronic submission of a claim in all courts is envisaged for 2018. 
[18]             http://www.e-codex.eu/index.php/legal-community-benefits;
see also for the European Small Claims Procedure:
http://www.e-codex.eu/pilots/small-claims.html.
[19]             10 Member States responded to
this question; Bulgaria: 6 months; Estonia: 4 months; Finland: 3 months; France:
4,6 months; Malta: 6 months; Poland:6,3 months; Slovakia: 3 months; Slovenia:
4,3 months; Spain: 8,2 months; Germany: 3,4 - 5,3 months.
[20]             See: https://e-justice.europa.eu/content_small_claims_forms-177-en.do.
[21]             See: CEC, Procédure de règlement des petits litiges; ECC-Net-Report.
[22]             Regulation 1896/2006/EC of the European Parliament and
the Council of 12 December 2006 creating a European order for payment procedure,
OJ L 399, 30.12.2006, p. 1 et seq.
[23]             Regulation 805/2004/EC of the European Parliament and
the Council of 21 April 2004 creating a European Enforcement Order for
uncontested claims, OJ L 143, 30.4.2004, p. 15 et seq.
[24]             Council Regulation 4/2009/EC on jurisdiction,
applicable law, recognition and enforcement of decisions and cooperation in
matters relating to maintenance obligations, OJ L 7, 10.1.2009, p. 1 et seq.
[25]             ECC-Net, European Small Claims
Procedure Report, September 2012, p. 28 available at: http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf.
[26]             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, p. 130.
[27]             The fact that court fees fall under the “loser pays”
principle does not reassure the claimant as the outcome of the case is
uncertain and the claimant would first have to "freeze" his own money
until effective enforcement.
[28]             Flash EB 347, p. 31. Even though this survey is general
for all types of B-2-B claims, it highlights that the proportionality of costs -
and therefore also of court fees - is the main criteria for businesses in
regard to the decision whether to litigate a case.
[29]             Ref.-Nr. X/2013/040; available at: http://www.beuc.org/Content/Default.asp?PageID=606.