European Small Claims Procedure – normative and positive dualism in access to justice

In 2009 the European Small Claims procedure was established by Regulation 861/2007. Easier and cheap access to justice for consumers and other parties in civil and commercial trans-border transactions was the main rationale behind the new device. A recently released empirical study (although methodologically not very robust!) illustrates well how intentions to provide more access to justice might be hindered by mundane but tangible barriers.

First, finding of the study is that the procedure is barely known among consumers but also courts and other judicial authorities. There is anecdotal evidence of claims being turned down because courts allegedly did not know about Regulation 861/2007 and the procedure.

Second, there is significant evidence that language, service of judgments and enforcement might rise as serious barriers. Many courts require all foreign documents officially translated. It is the claimant herself who has to manage through the complex rules and procedure of serving documents and enforcing court decisions of foreign courts. The report tells the example of a claimant who has obtained a favorable judgment, contacted a bailiff in the country of execution but never received a response.

Not surprisingly, there is lack of systematically collected data on the application of the procedure. Lastly, the report emphasizes on the fact that often the claimants do not have access to forms and templates as stipulated by Regulation 861/2007.

Several policy changes are recommended as a way to bridge the apparent discrepancy between the goals of the Regulation and its implementation. Common language, appointment of courts which are solely responsible for dealing with the small claims procedure and awareness campaigns are the three most salient options.

Read here the report on the application of the European Small Claims Procedure

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