European Small Claims Procedure (ESCP)
When all attempts to solve a claim against a foreign trader with an out of court dispute resolution method have failed, a further option to the consumer is the European Small Claims Procedure, established by Regulation No. 861/2007. The scope of this procedure is to simplify; reduce lengthy and expensive judicial proceedings where there is a cross-border element.
Note: When filing an ESCP, you do not need legal representation to proceed with the claim against the foreign trader.
A judgement for this procedure is recognised and enforceable in the other EU country, and the judgement cannot be opposed except for inconsistencies with an existing decision in the other EU country between the same parties.
There are 4 forms in total; Form A is available from the Civil Registry of the Small Claims Tribunal or may be downloaded from the link below:
Form A: The Claim Form
Form B: Request by the Court or Tribunal to complete or rectify Form A
Form C: The answer form, in other words, the reply from the trader.
Form D: Certificate concerning a judgement in the ESCP
The ESCP is a written procedure. However, exceptionally the Court may request an oral hearing; you must fill in Form A in the language of the Court and another language which the Court is prepared to accept. In our scenario, the Maltese language and another one written in a language that the trader understands.
The procedure applies in cross-border litigation to civil and commercial matters for claims up to €5000 (excluding expenses) in any EU country except Denmark.
Some examples of claims you can make through the ESCP:
- The payment of money
- Delivery of goods or other moveable property
- Requesting the performance of a contract
However, some civil claims are excluded from the ESCP, such as maintenance claims, claims arising from employment contracts, revenue, customs, and other administrative matters.
You will have to pay a small amount for court fees. Such fees shall be reimbursed if you are successful in your case.
The relevant fees are:
- €40.00 Registry Fee for Form A (Claims Form) and an additional €7.20 for the notification of the defendants.
- €25.00 Registry Fee for Form C (Reply Form) and an additional €7.20 for notification
- €20.00 Registry Fee for Form D (the certificate of a judgement in the European Small Claims Procedure)
- Fill in Form A (Claims Form) and send it to the Court, which has jurisdiction over the claim. Once the Court receives the Form, it will check if the information is filled correctly.
- If the Court deems that you failed to complete Form A correctly, it may request that you fill in some additional information through Form B.
- Once the Court receives the form/s, within 14 days, it shall forward the form/s to the defendant together with Form C (The Answer Form). The defendant has 20 days to fill in the Form, accompanied, where appropriate, by any relevant supporting documents.
- The Court then has 14 days to forward you a copy of the defendant’s reply, including any supporting documents.
- Within 30 days from when the Court receives Form C, it shall proceed to:
- Give judgement on the claim;
- Request additional information in writing from either of the parties;
- Summon the parties for an oral hearing.
- At the request of one of the parties, the Court will issue a certificate concerning the judgements given using Form D.
A judgment given through the ESCP in a Member State will be recognised and enforced in another Member State. You should always keep in mind that the enforcement procedure is regulated by the procedural laws of the Member State where enforcement is sought.
For example, you opened an ESCP against an Italian trader and won the case; however, if the trader is not ready to honour the sentence, you have to contact an Italian lawyer to enforce the ESCP sentence in the Italian courts per Italian procedural laws. Details of enforcement agents in the various Member States and information about execution of judgments can be found on internal national websites as well as on the European Judicial Atlas, EJN and e-Justice Portal sites.
The judgement is valid for all EU countries, except for Denmark.
A court can only refuse to enforce the judgement if it is incompatible with a previous judgement stemming from your country of residence and the defendant on the same issue.
This procedure cannot be used where the claim relates to:
- The status or legal capacity of natural persons
- Property rights arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage
- Maintenance obligations arising from a family relationship, parentage, marriage, or affinity
- Wills and succession, including maintenance obligations arising because of death
- Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, and analogous proceedings
- Social Security
- Employment law
- Tenancies of immovable property, except for actions on monetary claims, or
- Violations of privacy and rights related to personality, including defamation