Regulation (EU) 2015/2421 of 16 December 2015 (the “Regulation”) amending Regulation (EC) No. 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No.1896/2006 creating a European order for payment procedure entered into force on July 14th 2017.
A draft law (No. 7121) aiming at introducing into the Luxembourg Procedure Code the changes brought by the Regulation is currently pending.
Regulation (EC) No. 861/2007 established the European Small Claims Procedure which aims at improving access to justice for both consumers and businesses by reducing costs and accelerating civil procedures with regard to claims within its scope. In general, the European Small Claims Procedure is considered to have facilitated cross-border litigation for small claims in the European Union. However, the low ceiling set out in Regulation (EC) No. 861/2007 as regards the value of the claim deprives many potential claimants in cross-border disputes of the use of a simplified procedure. Furthermore, several elements of the procedure could be further simplified in order to reduce the costs and the duration of litigation. These are the reasons why the Regulation has been adopted.
The Regulation introduces the following amendments:
- Expansion of the definition of Small Claims with regard to the value of a claim from EUR 2,000 to EUR 5,000.
- Extension of the list of matters which are excluded from the scope of application of Regulation (EC) No. 861/2007.
The European Small Claims Procedure applies to both contested and uncontested cross-border civil and commercial claims with the exception of a limitative list of matters such as employment law, arbitration, etc.
The Regulation extends this limitative list to exclude matters concerning maintenance obligations arising from a family relationship, parentage, marriage or affinity, and wills and succession, including maintenance obligations arising by reason of death, from the Small Claims procedure.
- Expansion of the scope of application to court settlements.
The Regulation shall be applied not only to decisions of the court but also to court settlements approved by or concluded before a court or tribunal. As such, court settlements shall be recognised and enforced in all other Member States under the same conditions as a judgment given in the European Small Claims Procedure.
- Indication of appeal information.
Where the claim is dismissed on the basis that it is clearly unfounded or if the application is ruled as being inadmissible or where the claimant fails to complete or rectify the claim form within the time specified, the court or tribunal shall inform the claimant of such dismissal and whether an appeal is available against such dismissal.
- Use of modern communication technology.
The European Small Claims Procedure is essentially a written procedure. To further reduce the costs of litigation and the length of proceedings, the Regulation provides that the service of documents and other written communications can be done via electronic means and sets out the circumstances where modern communication technology could be used.
- Limitation of the cases where a judgement can be reviewed.
Only defendants who did not enter an appearance are allowed to apply for a review of the judgment within 30 days.
- Measures to reduce costs.
The court shall use the simplest and least burdensome method to determine the means of taking evidence, and the extent of the evidence necessary for its judgment. The court fees charged in a Member State for the European Small Claims Procedure shall not be disproportionate and shall not be higher than the court fees charged for national simplified court procedures in that Member State. The parties can pay the court fees by means of distance payment methods.
The court or tribunal, at the request of one of the parties, shall issue a certificate concerning a judgment given in the European Small Claims Procedure using the standard Form D, as set out in Annex IV, at no extra cost.
- Amendment of Regulation (EC) No. 1896/2006 creating a European order for payment procedure to clarify that, where a dispute falls within the scope of the European Small Claims Procedure, that procedure should also be available to a claimant in a European order for payment procedure in the event that the defendant has lodged a statement of opposition against the European order for payment.
