Article 4, paragraph 1 of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (ESCP regulation) establishes that the claimant shall commence the European Small Claims Procedure by filling in standard claim Form A, as set out in Annex I, and lodging it with the court or tribunal with jurisdiction directly:
- by post or
- by any other means of communication (such as fax or e-mail),
acceptable to the Member State in which the procedure is commenced. The claim form shall include a description of evidence supporting the claim and be accompanied, where appropriate, by any relevant supporting documents.
According to Article 5, paragraph 2 of ESCP regulation after receiving the properly filled in claim form, a copy of the claim form, and, where applicable, of the supporting documents, together with the answer form thus filled in, shall be dispatched within 14 days of receiving the properly filled in claim form.
Article 5, paragraph 3 of ESCP regulation states that the defendant shall submit his response within 30 days of service of the claim form and answer form, accompanied, where appropriate, by any relevant supporting documents, and returning it to the court or tribunal, or in any other appropriate way not using the answer form.
Although, the idea of creating the European Small Claim Procedure was to harmonize, simplify and accelerate civil legal procedures in European Union, however, after 16 years after the adoption of ESCP, it seems that this ESCP is still highly ineffective and not properly implemented by the judiciary institutions. We will provide the examples below, about the problems EuroClaim faced by representing the clients in German and Spanish courts under ESCP, particularly the difficulties related to the means of communication.
EuroClaim was representing the client and lodged the claim to Amtsgericht Jena (Jena District Court) by registered mail on 20th January 2023. On the 30th of January, the ESCP claim was submitted to Amtsgericht Jena. At the beginning of April, EuroClaim contacted the court by phone and to our surprise the court employee informed us that no ESCP claim was received by the court via post. Although EuroClaim has proof from German post that the documents were delivered, the court missed the document and did not start ESCP the procedure. On the 10th of May EuroClaim sent the fax to the court, however, 4 months passed from the moment ESCP claim was delivered to Amtsgericht Jena, but no court proceeding was opened.
EuroClaim initiated ESCP procedure and submitted the claim on behalf of the client to Oficina de Registro y Reparto de Primera Instancia de Madrid (Office of Registration and Distribution of First Instance of Madrid) on 18th of April 2022. Several months passed and no response from the Oficina de Registro y Reparto de Primera Instancia de Madrid was received. EuroClaim tried to contact the court by phone a number of times, but nobody dared to pick up the phone. Finally, we hired a local lawyer and obliged him to reach the court and find out the situation about our ESCP claim status. After several days of trying, a local lawyer managed to reach the Oficina de Registro y Reparto de Primera Instancia de Madrid. What was found out quite shocked us in the first place, it appeared that judiciary employees are on strike and nobody knows when our submitted ESCP claim will be processed. Additionally, it was told by the court that the former employee who was responsible for ESCP claims left, therefore, the court is not expecting to hire a new employee until September 2023. At the moment of writing this article, 1 year passed from the moment of ESCP submission to Oficina de Registro y Reparto de Primera Instancia de Madrid, no response was received from it and no procedural actions were taken by the court.
To sum up, what was discussed in this article, we can conclude that until ESCP procedure will be fully digitalized and procedural documents will be easily exchanged with different European courts, ESCP procedure will stay just a disabled legal tool without letting to initiate fast and effective legal procedures against the infringers who are residing abroad.