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The European Small Claims Procedure and other EU Instruments: Why is it useful to choose the European Small Claims Procedure?
Elena D’AlessandroUniversity of Turin
EU Instruments European Enforcement order
ESCP (Regulation No 861/2007)
EOP (Regulation No 1896/2006)
EEO (Regulation No 805/2004)
Brussels I bis Regulation (Regulation No 1215/2012)
Choosing among the Regulations..
I
What kind of claim will you submit to a Court?
Scope. Differences in excluded Matters
EEO EOP ESCP Brussels I bis
Civil and Commercial Matters
Excluded Matters: 1) Arbitration
2) Claims arising from Non Contractual Obligations
Scope. Differences in excluded Matters
EEO EOP ESCP Brussels I bis
3) Violations of Privacy and of Rights relating to Personality, including Defamation
Court Settlements
II
Do you have
a national dispute
or
a cross border dispute?
National Disputes
Only the Brussels I
(bis) and the EEO
Regulation are
Applicable to National Disputes
Cross Border Disputes
ESCP Regulation can apply solely to
cross border
disputes WITHIN THE EU!
III
What is your purpose?
Different Purposes achieved
1)Purpose of the Brussels I bis Regulation
Making EU Member State judgments, court agreements and authentic instruments immediately enforceable across the European judicial area without the need for an intermediate exequatur proceeding in the enforcing State and without prescription of minimum procedural standards.
1)Purpose of the Brussels I bis Regulation
Therefore, the person against whom enforcement is sought shall apply for refusal of the recognition or enforcement of a judgment in the Member State of enforcement if he considers one of the grounds for refusal of recognition or enforcement to be present according to Article 45 of the Brussels I bis Regulation.
2) Purpose of the EEO Regulation
To create a European Enforcement Order for uncontested pecuniary claims in order to allow, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings to be brought in the Member State of enforcement prior to recognition and enforcement.
3) Purpose of the EOP Regulation
To simplify and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims by creating a European order for payment procedure and permitting the free circulation of European orders for payment throughout the Member States.
4) Purpose of the ESCP Regulation
To simplify and speed up litigation concerning small claims in cross-border cases, in particular cross-border consumer disputes, whilst at the same time reducing costs (for example, no legal or technical assistance is required).
ESCP Regulation:in the case of non pecuniary claims (< 2000 €),
such as delivery of goods, the creditor can apply solely for the European Small Claims Procedure
No considerable differences in recognition
EEO EOP ESCP Brussels I bis
Enforceability conferred by the Member State of origin
YES NO NO YES
No differences in enforcement procedure
Differences in Grounds for Refusal of Enforcement
EEO ESPC EOPIrreconcilability with an earlier decision/order involved the same cause of action and between the same parties
Differences in Grounds for Refusal of Enforcement
Brussels I bis Regulation
Article 45The enforcement of a judgment shall be refused:(a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;(b) where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;(c) if the judgment is irreconcilable with an (earlier or a subsequent) judgment given between the same parties in the Member State addressed;(d) if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.
Conclusions. Strengths & Weaknesses
Main points of attractiveness of the ESCP Regulation:
1) No need to navigate a foreign legal system
2) Convenient and speedy 3)Grounds for refusal of
recognition/enforcement (Irreconcilability with an earlier decision/order)
Weaknesses of the ESCP Regulation
1) Art. 5, par. 7, ESCP: “If the counterclaim exceeds the limit set out in Article 2(1), the claim and counterclaim shall not proceed in the European Small Claims Procedure but shall be dealt with in accordance with the relevant procedural law applicable in the Member State in which the procedure is conducted”
2) Article 26 ESCP Regulation “All procedural issues not specifically dealt with in this Regulation shall be governed by national law”
For example: the possibility of a judicial review
In Italy, the average disposition time for a civil case is:
(data relatingo to 2008)
First instance Appeal Corte di cassazione
0
500
1000
1500
2000
2500
3000
......Bruxelles I bis Regulation
Example 1: cross border consumer dispute concerning pecuniary or non pecuniary claims mediation agreement the interested party, in order to obtain a European Enforcement Order, shall apply pursuant to the Brussels I bis Regulation (from January 10, 2015) .
the case is outside the scope of the ESC Regulation!
......Bruxelles I bis Regulation
Example 2: …..where the national procedural law of the Member State having subject matter of jurisdiction according to the Brussels I bis Regulation Rules contemplates a national small claim procedure, with reasonable costs, rather than applying for a ESC Procedure it will be probably easier for the consumer to act in his own State in order to obtain a judgment, which shall become a European enforcement order pursuant to the Brussels I bis Regulation.
