43 European Small Claims Procedure |
|Committee's decision||Cleared from scrutiny; drawn to the attention of the Business, Innovation and Skills Committee
|Document details||Proposal for a 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
|Legal base||Article 81 TFEU; ordinary legislative procedure; QMV
|Department||Ministry of Justice
|Document Numbers||(35576), 16749/13 + ADDs 1-2, COM(13) 794
Summary and Committee's conclusions
43.1 This is a proposal to revise the current Regulation establishing
a European Small Claims Procedure (ESCP) which can be used for
making small court claims where there is a cross-border dimension,
and facilitating the enforcement of judgments obtained by this
procedure. Our first report sets out the background in more detail.
The essence of the Commission's proposal is: to increase the availability
of the procedure; to promote electronic service of documents and
other communications; to increase the use of distance communications
for oral proceedings; to limit court fees and facilitate electronic
payment; and to limit translation requirements.
43.2 The Government has been generally supportive of the intentions
of the proposals but had concerns about extending the availability
of the procedure including to third country residents, the level
of the financial upper limit of claims, the possibility that Courts
would have to provide legal advice, and the use of the delegated
legislation procedure[ 223]
for EU subordinate legislation to amend standard forms. Our predecessor
Committee raised no separate concerns with the proposal.
43.3 The UK opted into this measure at the negotiation stage.
In November 2014 our predecessor Committee granted a scrutiny
waiver to enable the UK to support a general approach in the Council.
The Parliamentary Under-Secretary of State for Justice (Dominic
Raab) now reports on the outcome of the trilogue negotiations
with the European Parliament and seeks scrutiny clearance in advance
of a formal first reading adoption of the proposal.
43.4 We are grateful to the Minister for the full update which
has continued the admirable practice set by his predecessors in
this matter. It is particularly useful that he has provided a
text which is in the public domain.
43.5 Whist the trilogue resulted in compromises, these are
acceptable to the Government and appear to be of minor significance.
The scope for dispute and compromise on the use of the delegated
legislation procedure could be limited in future by suitable drafting
of the guidelines on the use of this procedure in the proposed
Common Understanding on Delegated Legislation annexed to a proposed
Interinstitutional Agreement on Better Regulation. However, as
we Report at Chapter 1 the Government wishes to retain flexibility.
43.6 We now clear this matter from scrutiny and draw it to
the attention of the Business, Innovation and Skills Committee
in view of its imminent adoption.
details of the documents:
Proposal for a Regulation
amending Regulation (EC) No. 861/2007 of 11 July 2007 establishing
a European Small Claims Procedure and Regulation (EC) No. 1896/2006
of 12 December 2006 creating a European Order for Payment Procedure:
(35576), 16749/13 + ADDs 1-2, COM(13) 794.
The Minister's letter of 16 July 2015
43.7 In his letter the Minister explains the main
changes to the Commission's proposal and the Government's approach
and provides the latest text.[ 224]
The financial upper limit for using the ESCP
43.8 Although the Commission originally proposed,
and the Government and the European Parliament supported, a maximum
threshold for a claim to qualify for the procedure of 10,000
(£7,190), the Council general approach fixed this threshold
at 4,000 (£2,876). This has been increased to 5,000
(£3,595) with a commitment to review this level after five
The definition of cross-border cases
43.9 The Commission originally proposed to broaden
the scope of proceedings qualifying for the ESCP by including
cases where just one of the following elements was not in the
Member State of the court having jurisdiction: (a) the domicile
or habitual residence of a party, (b) the performance of the contract,
(c) the facts giving rise to the dispute, (d) the enforcement
of any judgement or (e) another court with jurisdiction. The trilogue
outcome is that the existing position remains, namely that the
procedure is only available where at least one of the parties
is domiciled or has their habitual residence in a different Member
States to the court with jurisdiction.
43.10 The Commission originally proposed that a party
should have the right to appear in person and made the use of
distance communication technology obligatory. The trilogue outcome
is that the court retains discretion whether to have an oral hearing
and there is a new recital saying that Member States should promote
the use of distance communication technology, that courts should
have access to it and that regard should be had to the recently
adopted Council Recommendation on the use of videoconferencing.
Court fees and payment
43.11 The Commission originally proposed a limit
on court fees of 10% of the value of the claim, which the European
Parliament was inclined to reduce to 5%. The outcome of the trilogue
is a new Article requiring fees to be proportionate and set at
the same level as equivalent domestic claims, plus a recital that
legal aid should be provided in accordance with the Legal Aid
Directive. The Minister indicates that this legal aid requirement
would not place an additional burden on Member States.
Amendment of standard forms
43.12 The Minister indicates that as part of the
overall compromise it was conceded to the European Parliament
that amendment of standard forms should be achieved using the
delegated legislation procedure[ 225]
for EU subordinate legislation rather than the implementing legislation
procedure,[ 226] despite
the fact that the former gives the European Parliament a greater
input and Member States less influence. This is balanced by a
recital stressing the importance of appropriate consultation on
the content of the changes.
Previous Committee Reports
Twentieth Report HC 219-xix (2014-15), chapter 7
(19 November 2014); Thirty-third Report HC 83-xxx (2013-14), chapter
11 (29 January 2014).
223 Article 290 TFEU. Back
224 See item 5 in the list of documents for this matter provided by
the Cabinet Office. Back
225 Article 290 TFEU. Back
226 Article 291 TFEU. Back