The European Small Claims Procedure and other Eu Instruments

Report
The European Small Claims Procedure and
other EU Instruments: Why is it useful to
choose the European Small Claims
Procedure?
Elena D’Alessandro
University 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
Brussels I bis
Civil and
Commercial
Matters
Excluded
Matters:
1) Arbitration
2) Claims
arising from
Non
Contractual
Obligations
Scope.
Differences in excluded Matters
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 crossborder 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
Brussels I bis
Enforceability
conferred by
the Member
State
of
origin
YES NO NO YES
Differences in Grounds for Refusal of Enforcement
EEO
Irreconcilability with an
earlier
decision/order
involved the same cause
of action and between the
same parties
ESPC
EOP
Differences in Grounds for Refusal of
Enforcement
Brussels I bis Regulation
Article 45
The 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
Regulation:
attractiveness of
the ESCP
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)
3000
2500
2000
1500
1000
500
0
First instance
Appeal
Corte di
cassazione
......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.
Thank you very much for your attention!
[email protected]

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