The European Small Claims Procedure

In a bid to further facilitate the free movement of people, goods, services and capital in the single market, the EU has adopted various measures in the field of judicial cooperation in civil and commercial matters that have cross-border implications, whi

One such measure is the establishment of the European Small Claims Procedure. The legal basis for this procedure arises from Regulation (EC) No 861/2007. Being a Regulation and not a Directive, this legal instrument is applied word-forword in all EU member states as it does not need to be transposed into national law therefore ensuring cross-border consistency and hence more certainty.

The procedure envisaged in this regulation aims at addressing cross-border claims below €5,000 by allowing the claimant to seek redress in a simple, swift and cost efficient manner. The claim needs to be of a civil or commercial nature, predominantly those arising from contracts and from claims for damages for loss or injury and for delivery of goods. Through the application of a uniform approach to litigation with costs that are proportionate to the claim, this litigious procedure has the objective of facilitating access to justice. It is interesting to observe that the European Small Claims Procedure exists as an alternative to other domestic judicial remedies available in each member state, all of which remain unaffected.

Recourse to this procedure can only be made if it involves a cross-border case within the European Union, with the exclusion of Denmark. It is not mandatory for the parties to be represented by a lawyer. The European Small Claims Procedure does not apply to matters pertaining to family law, bankruptcy proceedings, employment law, actions directed against a State and matters relating to immovable property. The claimant can invoke the European Small Claims Procedure by filing the standard claim form, which is easily obtained online, together with the supporting documents in the Court or Tribunal that has jurisdiction to determine the case. Filing can also be done by electronic means if acceptable to the Member State in which the procedure is commenced. Before proceeding, it is necessary to de- termine which member state Court or Tribunal has competence to determine the claim. Here matters may get complicated as one would need to look into EU jurisdiction rules and see how they apply to his/her particular case. The general principle is that the proceedings are to be brought in the Court/Tribunal where the defendant is based. However, there are various exceptions to this general rule. One of the most important concerns consumer related affairs. When the subject matter of the dispute involves a consumer, that is a person acting outside his trade or business, then proceedings would need to be instituted in the country where the consumer lives.

The European Small Claims Procedure is mainly intended as a written procedure whereby the Court or Tribunal is meant to arrive to a decision based on the documents submitted to it. An oral hearing is not required: nonetheless, the Court/Tribunal itself may hold one if it deems it necessary. It is also possible for the parties to request a hearing, which request needs to be upheld or otherwise rejected if considered unnecessary by the Court/Tribunal. Once the matter is decided on by the Court/Tribunal, such decision can be enforced in any other Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition making this procedure more practical and efficient. The costs of the proceedings are borne by the unsuccessful party. Enforcement of judgements takes place in accordance to the respective formalities of the Member State where enforcement is sought.

Despite the fact that well documented research findings show that the Maltese population is increasingly making online purchases, the European Small Claims Procedure is not so often resorted to in Malta. In 2017 only six judgements were delivered by the Maltese Tribunal and this year, to date, seven judgments were delivered. Noteworthy, are a few decisions taken by the Maltese Tribunal. In the case “Al- 2017. The claimant requested the Tribunal to condemn the Spanish airline Vueling S.A. to pay damages for a flight from Malta to Barcelona that was delayed by more than six hours. Because of this delay, the claimant lost a connection flight and had to spend a night in a hotel in Spain. The Tribunal before entering into the merits of the case first considered whether it had jurisdiction. The claimant was a German national making a claim in Malta against an airline company with headquarters in Spain. The Tribunal observed that since both the places of departure and arrival are considered as being the place of performance of the obligation, the Maltese tribunal had jurisdiction to determine the matter. After considering the documentation submitted, the Tribunal was satisfied that in terms of the “Flight Compensation Regulation (EC) no. 261/2004” the claim put forward was merited and worthy of being acceded to. As such, the airline was condemned to pay the claimant damages with interest and the expenses of the proceedings.

In my humble opinion, while the European Small Claims Procedure is rather easily accessible, it is not as simple to successfully pursue and obtain a favourable decision. This I believe is mostly due to the complexity of the rules of jurisdiction and procedural technicalities that are applicable across the various member states which often necessitate some legal knowledge. Hence, in a bid to make this procedure more accessible, better guidance and education in this respect is called for.