The EU Justice and Home Affairs Council of Ministers agreed the
changes in Brussels. They have since been welcomed by the UK’s
Department of Constitutional Affairs (DCA).
"Today there is more travel and business across international
borders than ever,” said the Secretary of State for Constitutional
Affairs and Lord Chancellor, Lord Falconer. “The growth of internet
shopping is likely to continue to grow at a significant rate.
Inevitably, disputes will arise in a small number of cases however
we shop. The agreements reached today are a significant step closer
towards enabling citizens of all EU countries to resolve such
disputes more effectively. “
The agreed measures relate to a simpler small claims procedure,
a uniform procedure for obtaining judgments on uncontested claims,
and the encouragement of mediation processes.
Small Claims
At present small claims can only be dealt with under national
civil procedures, with EU regulation covering which courts have
jurisdiction. This can be slow and expensive, often requiring legal
representation by both parties in their own countries: a
significant disincentive to seeking redress in many cases.
The new European Small Claims Procedure (ESCP) will provide a
simpler, faster and more cost-effective common procedure to get a
judgment and to enforce it, says the DCA. It will cover both
defended and undefended claims and will also apply to small-claims
in personal injury cases for minor injuries sustained while
travelling abroad.
The ESCP will allow, for example, a UK shopper who ordered and
paid for a cooker in France that was subsequently not delivered or
does not work properly, to make a claim against the supplier
through his local county court in the UK.
The county court will forward the claim to the defendant
directly for response, decide the claim and notify the parties of
the outcome.
If it becomes necessary to enforce the judgment, the ESCP will
allow this to be done without the present need to go through a
formal mutual recognition procedure first.
According to the DCA, the ESCP will be carried out in written
form, unless the court considers an oral hearing is necessary in a
particular case. Parties will be able to draw up their claim in
their home language, with a simplified standard form using a
multi-lingual, tick-box approach as far as possible.
The ESCP will include time limits on appropriate stages of the
process and will be developed so as to enable maximum use of new
technologies in transferring information and evidence between
courts in different countries.
Together, says the DCA, these measures will make it easier for
parties to present their case, and they will be able to represent
themselves rather than requiring legal representation. It will also
ensure that the parties are not exposed to the risk of
disproportionate costs and reduce disincentives to pursuing
rights.
The DCA hopes that consumer confidence in buying goods over the
internet, or when on holiday or travelling abroad, will increase
when workable remedies become more readily available. This
confidence, will in turn, increase cross border trade involving
both UK consumers buying goods and services in EU countries and UK
companies looking to increase their business in those countries. It
will also improve the effectiveness of the internal market.
European Order for Payment
Presently, debt claims can only be pursued using national legal
systems, with the claim dealt with in the jurisdiction of the
defendant debtor.
According to the DCA, the European Order for Payment (EOP) will
make it easier and simpler to obtain a judgment on an uncontested
claim where obtaining payment is the issue. If the debt itself is
contested, it will still need to be adjudicated by civil court
processes, but the ESCP will make this process simpler in small
claims cases.
The EOP is intended to provide a uniform procedure of obtaining
a judgment that will be automatically recognised in all EU
countries. It complements the European Enforcement Order (EEO),
which came into effect on 21st October 2005.
By providing a uniform procedure the EOP will be particularly
useful for creditors who carry out business in more than one other
EU country as they will not have to understand the procedures in a
range of jurisdictions, says the DCA. The procedure will be
available to all citizens and businesses involved in cross-border
civil disputes.
Mediation
Mediation is a means of seeking resolution of disputes by mutual
agreement without taking the dispute through a civil court process.
However, there is some current uncertainty about how the courts of
Member States will deal with issues arising out of mediation where
this fails to achieve resolution, or one of the parties
subsequently fails to abide by the mediated agreement.
The agreement reached by the Council of Ministers hopes to
increase this certainty and to ensure a balanced relationship
between mediation and judicial proceedings.
The Council has approved the creation of minimum common rules
and means by which the courts of EU countries can promote the use
of mediation by positive incentives - without making it compulsory
or subject to specific sanctions. It will apply to civil and
commercial matters, including family cases, says the DCA.
