Recently, information has appeared in the mass media regarding the possibility of asserting one’s claim in European small claims proceedings, which are conducted predominantly by electronic or written communication. This issue is thus addressed in the December legal circular, for the reason that these proceedings are not intended solely for consumers, but also for other entities – creditors within the Member States of the European Union.

The legal regulation of this institute has been in force for almost three years; however, it is not yet widely known to the public and therefore is not extensively applied in practice. It is governed by Regulation of the European Parliament and of the Council No. 861/2007 establishing a European Small Claims Procedure (hereinafter “the Small Claims Regulation”), which entered into force on 1 January 2009. The intention of this regulation was to achieve greater confidence in the system of enforcing one’s rights, not only in one’s home state but throughout Europe, thereby strengthening the functioning of the internal market of the European Union.

The European small claims procedure is an institute enabling entities from the Member States of the European Union to obtain their claim relatively quickly and cheaply compared to ordinary court proceedings. It is therefore an alternative to traditional court proceedings. However, there are several limitations on the use of this institute. A foreign element must be present in the dispute. This means that at least one of the parties must have its domicile (in the case of a natural person) or registered office, headquarters or place of principal business activity (in the case of a legal person) in a Member State other than the Member State of the court in which the claim is filed. A further limitation concerns the subject matter of the proceedings. It must be a commercial or civil law claim, whereby family law, succession, labour law matters and matters concerning personal status or protection of personality are excluded. Furthermore, it does not cover claims from insolvency or arbitration proceedings. The final condition is that it must concern a “small claim”; the Small Claims Regulation limits the amount to a value of EUR 2,000, excluding accessories (interest, costs of proceedings, etc.). However, this limitation is likely to undergo a change in the future consisting of an increase in this limit.

The proceedings themselves are highly formal. Essentially all acts of the parties and the court are carried out on forms prescribed by the Regulation. These are available at all relevant courts or on the European e-Justice website. The claim is filed with the competent court by sending by post, fax, data box or electronic mail on Form A. The competent court is determined according to Council Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the so-called “Brussels I”). Generally, the competent court is the court according to the defendant’s place of domicile. However, different cases also exist in the Regulation. For example, in consumer contracts, the consumer may bring an action against the contractual partner before the court where the contractual partner has its domicile or registered office, or where the consumer himself has his domicile. This may therefore result in a trader being sued in the Member State to which he sent his goods to the buyer, who is a consumer. It must be recalled that this construction does not function in reverse and a trader may sue “his” consumer only before the competent court according to the consumer’s domicile.

As regards the course of the proceedings themselves after receipt of the claim, the court assesses the applicability of the Small Claims Regulation. If it finds non-applicability, in such a case normal adversarial proceedings are conducted according to the national law of the Member State. In the opposite case, the court assesses whether there is ground for rejection of the claim for an inadmissible or manifestly unfounded claim. If there is not, but the form contains errors, the court again invites rectification by means of a form. If the filing is in order, then the court sends a copy thereof to the defendant, who has a thirty-day time limit from service to respond; otherwise a judgment on the claim asserted will be issued. The entire proceedings should be very swift, as the court is bound by short time limits. In the ideal case, if it is not necessary to order an oral hearing or conduct extensive taking of evidence, it is therefore possible to have an enforceable judgment “on the table” within three months of filing the claim.

An undisputed advantage of a judgment issued in this way is its provisional enforceability. This means that the judgment is an enforcement title and performance may be sought on the basis thereof by enforcement of the judgment, even in the event of a remedy being lodged. Remedies are permitted under the regime according to national law. A further advantage of a judgment issued in this way is its enforceability in all Member States of the European Union. The condition is merely fulfilment of certain requirements, which are rather of a formal nature, and therefore not the so-called declaration of enforceability issued by the relevant national court in special proceedings, as is the case with other judgments. The enforcement of the judgment is then governed by the law of the state in which enforcement takes place.

The European small claims procedure should therefore bring a faster and more efficient way of obtaining payment of a claim from “foreign” debtors. The proceedings are highly formal, written and conducted by means of forms; they may therefore be conducted purely by electronic means. The greatest disadvantage is the performance limit set at EUR 2,000.

Mgr. Lukáš Barnet

Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal consultancy

This text was originally prepared by the law office Mašek, Kočí, Aujezdský in cooperation with the civic association Association for Electronic Commerce (APEK) as legal circular No. 12/2012 intended for members of this association.

This text was translated from Czech to English using an AI translator.