Toolkit on the European Small Claims Procedure

Toolkit on Small Claims European Procedure – Presentation of EU Regulation 861-2007

Toolkit on the European Small Claims Procedure – Competence

In addition, are excluded from its scope:

• the status or legal capacity of natural persons;
• rights in property arising out of a matrimonial relationship, maintenance obligations, wills and succession;
• bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;
• social security;
• arbitration;
• employment law;
• tenancies of immovable property, with the exception of actions on monetary claims; or;
• violations of privacy and of rights relating to personality, including defamation.

 We can also specify that the use of this regulation is optional and in no way prevents the use of a national procedure if this one could be more effective for the Member State.

To know which jurisdiction is materially competent, reference must be made to the communications made by the Member States to the European Commission.

The domicile must be determined in accordance with articles 62 and 63 of Regulation (EU) n° 1215/2012 of the European Parliament and of the Council, known as ‘Brussel I a’.

2.2. Relevant moment for determining whether a case is a cross-border case

The relevant moment for determining whether a case is a cross-border case is the date on which the claim form is received by the court or tribunal with jurisdiction.

Toolkit on the European Small Claims Procedure – Obtaining the title

1. Form A : claim form

Article 4, 1 of the Regulation states that the claimant shall commence the European Small Claims Procedure by filling in standard claim Form A, as set out in Annex I, containing :

• Rubric 1 – Jurisdiction: name and address of the court
• Rubric 2 – Claimant and/of reprensentative
• Rubric 3 – Defendant and/of representative
• Rubric 4 – Competence : This is the basis of the jurisdiction of the court. If there is no foundation, you have the option of ticking the box 4.8, stating the basis.
• Rubric 5 – Cross-border nature of the case : One of the three countries filled must be a different country. If this is not the case, we are not in a cross-border dispute.
• Rubric 6 – Bank details (optional) : These are different payment methods accepted by the European Union. All payment methods should be available at the court where an applicant wishes to initiate the procedure. It is therefore strongly advised to contact the court in advance on the payment of the fees
• Rubric 7 – Claim : It is necessary to indicate the essential elements of the claim (amount, currency, procedural fees, interest).
• Rubric 8 – Details of claim : It is appropriate here to indicate all the elements which may support the claim: reasons, evidence, wish for a hearing.
• Rubric 9 – Certificate : If the claimant wishes to pursue the enforcement of the decision in the EU Member States it must obligatorily check this box in order to be issued the certificate allowing this execution
• Rubric 10 – Date and signature
• Appendix – Bank information useful for the payment of court fees.

Article 4, 1° of the Regulation states that the claim Form A is directly send to the court by post or by any other means of communication, such as fax or e-mail, acceptable to the Member State in which the procedure is commenced. The European e-justice portal can be checked to find out what means of communication are accepted by each member state.

Article 4, 5° of the Regulation states that Member States shall ensure that the standard claim Form A is available at all courts and tribunals before which the European Small Claims Procedure can be commenced, and that it is accessible through relevant national websites.

2. Form B – Request by the court or tribunal to complete and/or rectify the claim form

Article 4, 4° of the Regulation states Where the court or tribunal considers the information provided by the claimant to be inadequate or insufficiently clear or if the claim form is not filled in properly, it shall, unless the claim appears to be clearly unfounded or the application inadmissible, give the claimant the opportunity to complete or rectify the claim form or to supply supplementary information or documents or to withdraw the claim, within such period as it specifies. The court or tribunal shall use standard Form B, as set out in Annex II, for this purpose.

However, as in Regulation (EC) No 1896/2006 on the European order for payment, this form B is used by the courts:

• to inform the claimant that they do not accept that Form A is signed and filed through the judicial officer;
• to request supporting documents;
• to request a detailed statement of interest;
• to inform the applicant that certain costs such as the minimum procedural allowance are not granted.

If the claimant does not complete or correct the form within the time-limit indicated by the court, the claim shall reject it purely and simply by informing the claimant of the rejection and indicating, if necessary, whether the applicant is subject to appeal.

Toolkit on the European Small Claims Procedure – Delivery of the title

The court or tribunal shall hold an oral hearing only if it considers that it is not possible to give the judgment on the basis of the written evidence or if a party so requests. The court or tribunal may refuse such a request if it considers that, with regard to the circumstances of the case, an oral hearing is not necessary for the fair conduct of the proceedings. The reasons for refusal shall be given in writing. The refusal may not be contested separately from a challenge to the judgment itself.

After receiving the properly filled in claim form, the court or tribunal shall fill in Part I of the standard answer form C, as set out in Annex III.

A copy of the claim form (form A), and, where applicable, of the supporting documents, together with the answer form C thus filled in, shall be served on the defendant in accordance with Article 13:

• by postal service, or
• by electronic means.

In the two cases the service shall be attested by an acknowledgment of receipt including the date of receipt.

If service in accordance with paragraph 1 is not possible, service may be effected by any of the methods provided for in Article 13 or 14 of Regulation (EC) No 1896/2006.

Even if this is not clearly indicated, such service shall be done by the court of its own motion if it is to be served within 14 days of receipt of the duly completed Form A.

2. Form C : Opposition of the Defendant

The defendant shall submit his response within 30 days of service of the claim form and answer form, by filling in Part II of standard answer Form C, accompanied, where appropriate, by any relevant supporting documents, and returning it to the court or tribunal, or in any other appropriate way not using the answer form.

A new substantive and adversarial procedure begins before the court which issued the form C.

Toolkit on the European Small Claims Procedure – Service of Documents

Article 13 provides that the acts shall be served:

• by postal service, or
• by electronic means where such means are technically available and admissible in accordance with the procedural rules of the Member State in which the European Small Claims Procedure is conducted and, if the party to be served is domiciled or habitually resident in another Member State, in accordance with the procedural rules of that Member State; and where the party to be served has expressly accepted in advance that documents may be served on him by electronic means or is, in accordance with the procedural rules of the Member State in which that party is domiciled or habitually resident, under a legal obligation to accept that specific method of service.

 In the two cases the service shall be attested by an acknowledgment of receipt including the date of receipt.

If service in accordance with paragraph 1 is not possible, service may be effected by any of the methods provided for in Article 13 or 14 of Regulation (EC) n° 1896/2006.

2.  Content of service of documents

Article 5, 2 of the Regulation states that must be served to the defendant : 

• A copy of the claim form (Form A) ;
• Where applicable the supporting documents;
• The answer form (Form C) thus filled in

Toolkit on the European Small Claims Procedure – Enforcement

 When the defendant does not exercise his right to contest by not returning Form C, The judgment shall be enforceable notwithstanding any possible appeal in accordance to article 15 of the Regulation

However, in order to enforce this decision in all Member States of the European Union, the applicant is entitled to request, at no extra cost, in accordance with Article 20 for a certificate European Small Claims Procedure, using Form D. 

The court or tribunal shall issue a certificate concerning a judgment in the European Small Claims Procedure using standard Form D, as set out in Annex IV, at no extra cost.

This form D, containing the amounts of the claim, corresponds to the enforcement formula and is therefore sufficient for itself to be able to enforce it in all the Member States of the European Union.

Indeed article 20 of the Regulation states that “a judgment given in a Member State in the European Small Claims Procedure shall be recognised and enforced in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition”.

2. Enforcement of the judgment 

By this regulation the European Union creates an autonomous procedure only to obtain a decision which can be executed in all member countries (except Denmark).

However, a decision given in the European Small Claims Procedure shall be carried out under the same conditions as a decision given in the Member State of enforcement.

The right of enforcement therefore remains the prerogative of individual Member States.

Article 21 of the Regulation specifies the conditions to be met by an claimant who wishes to proceed, through a judicial officer, to enforce his decision in another Member State of the European Union.

The party seeking enforcement shall produce:

• a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
• a copy of the certificate referred to in Article 20(2) and, where necessary, the translation thereof into the official language of the Member State of enforcement or, if there are several official languages in that Member State, the official language or one of the official languages of court or tribunal proceedings of the place where enforcement is sought in conformity with the law of that Member State, or into another language that the Member State of enforcement has indicated it can accept. Each Member State may indicate the official language or languages of the institutions of the European Union other than its own which it can accept for the European Small Claims Procedure. The content of Form D shall be translated by a person qualified to make translations in one of the Member States.

 Once the enforcement agent in the executing Member State has these elements, it may, without further formality, proceed to enforcement against the sentenced party:

3. Translation issue

Article 21, 2 (b) provides that the content of Form D in Annex IV must be translated into the official language of the Member State of enforcement or, if there are several official languages in that Member State, the official language or one of the official languages of court or tribunal proceedings of the place where enforcement is sought in conformity with the law of that Member State, or into another language that the Member State of enforcement has indicated it can accept.

This is the content that needs to be translated and not the container (the form itself) which is in all languages ​​on the European e-justice portal.

Translation costs are therefore limited to the maximum through the use of standard forms.