European small claims procedure - the ultimate guide

The Basics of Small Claims Court in the EU

The European Small Claims Procedure (ESCP) is a mechanism designed to simplify and expedite cross-border claims of up to €5,000. Serving as an alternative to the existing procedures under the laws of Member States, the ESCP is recognised throughout the EU. Remarkably, a judgment given through this process is enforceable in another Member State without requiring a declaration of enforceability or any potential of opposing its recognition.

Introduction to the EU small claims process

The initiation of the ESCP is facilitated by the use of standard forms available in all languages of the EU, offering broad accessibility for claimants across the Member States. The starting point of the procedure is "Form A", which the claimant should complete and attach any relevant supporting documents such as receipts or invoices.

Upon receipt of the completed "Form A", the jurisdictional court completes its part of the "Answer Form". The court then serves a copy of the application form, along with the Answer Form, on the defendant within 14 days of receiving the application. The defendant is granted 30 days to reply by filling in their part of the Answer Form, a copy of which is sent by the court to the plaintiff within 14 days.

The court is obliged to make a judgment on the small claim within 30 days of receiving the defendant's answer, if any. However, the court may request further details in writing from either party, or summon the parties to an oral hearing if necessary. Importantly, legal representation is not a requirement at an oral hearing, and where the court is equipped appropriately, the hearing may be conducted via video or teleconference.

Successful enforcement of a judgment given through the ESCP in all other Member States is guaranteed by a court-issued certificate, which may need translation into the language of the enforcing Member State. The enforcement adheres to the national rules and procedures of the Member State where the judgment is being enforced, thus ensuring smooth cross-border enforcement. The only grounds for refusal of enforcement in another Member State would be if the judgment is irreconcilable with another judgment between the same parties in that Member State.

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When to Utilise the European Small Claims Procedure

The European Small Claims Procedure (ESCP) is a practical tool for resolving cross-border civil and commercial disputes involving claims up to €5,000. This includes claims not only for payment of money, but also for a variety of other issues, whether they are defended or undefended.

The ESCP is designed to be a swift, less expensive procedure. This makes it an excellent option for claimants who prefer to navigate the process without the aid of a lawyer, as legal representation is not obligatory in this procedure.

The scope of the ESCP covers a broad range of cross-border claims, such as those arising from contracts, claims for damages due to loss or injury, and claims for delivery of goods. However, it's important to note that certain types of cases are excluded from the ESCP. These exclusions encompass family law cases and maintenance, employment and social security matters, and cases pertaining to bankruptcy. Therefore, claimants should carefully assess the nature of their claim before choosing the ESCP as their dispute resolution mechanism.

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Other procedures for recovering cross-border claims in the EU

While the European Small Claims Procedure (ESCP) offers a streamlined process for claims up to €5,000, there are several alternative dispute resolution mechanisms available in the EU.

For consumer cases, Alternative Dispute Resolution (ADR) mechanisms can be employed, such as those outlined by the ADR Directive, which ensures the quality of dispute resolution bodies. Specifically, for complaints stemming from online sales and services between consumers and traders, the Online Dispute Resolution (ODR) platform can be utilised.

Before proceeding with the ESCP, it's wise to evaluate if another procedure might be more suitable or even mandatory for the type of claim concerned. Here are some alternatives available for cross-border claim recovery in the EU:

• Cross-border Maintenance Claims: The Maintenance Regulation applies here. More information is available at the e-Justice Portal section on Maintenance obligations.
• Claims related to Wills and Succession: The Succession Regulation is relevant in this case. More details are available at the e-Justice Portal section on Succession.
• Uncontested Claims: For situations where a court order or another confirmation of entitlement to a sum of money has been granted, the European Enforcement Order (EEO) is available. For more details, refer to the Practice Guide for the Application of the Regulation on the European Enforcement Order.
• Monetary claims other than maintenance: If the claimant anticipates no defence, or if they will not be defended, the procedure for the European Order for Payment (EOP) is suitable. This is especially useful for claimants seeking to recover monetary debts from multiple debtors, as it is a swift process. More information can be found in the Practice Guide for the Application of the Regulation on the European Order for Payment.

For civil and commercial claims exceeding €5,000, national procedures can be an option, though special procedures may exist for particular types of claims in some Member States. EU rules dictate which court can hear cases between the Member States. For enforcing a national judgment or order in another Member State, the procedure outlined in the Brussels I (recast) Regulation should be followed. Further information can be found at the e-Justice Portal, under the section on Brussels I (recast).

The European e-Justice Portal provides extensive information on cross-border litigation in the EU on civil and commercial matters.

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The Geographical Reach of the ESCP Regulation

The European Small Claims Procedure (ESCP) Regulation is applicable across all Member States, with Denmark being the sole exception, as per Recital 38. The ESCP is designed for cases classified as 'cross-border', meaning situations where at least one party is domiciled or habitually resident in a Member State other than that of the court handling the claim (Article 3(1)). This definition is further refined in Regulation No 2015/2421's Recital (5), stating a cross-border case exists when at least one of the parties is domiciled or habitually resident in a Member State bound by this Regulation, excluding the Member State of the court or tribunal in question.

It is essential to note that the determining factor for a case being considered 'cross-border' is based on the situation at the date the Claim Form is received by the competent court or tribunal (Article 3(3)). The factual basis of this condition must be stated in Part 5 of Claim Form A.

Limitations of the European Small Claims Procedure 

When considering using the European Small Claims Procedure (ESCP), it's important to understand the various constraints that apply. These limitations encompass monetary caps, types of eligible cases, and timeframes for filing a claim.

Monetary Limitations

The ESCP, as revised by Regulation No 2015/2421, is applicable to claims that do not exceed €5000. This upper limit, while varying among Member States, also applies to national small claims procedures. If a counterclaim exceeds this limit, both the claim and counterclaim will proceed under national procedural law, as per Article 5(7). Article 2(1) outlines how the claim's value should be calculated, basing it on the date the claim is received by the court or tribunal with jurisdiction. The calculated value excludes any interest on the primary claim, expenses, and disbursements, unless the claim solely pertains to interest payments on a previously settled debt.

Types of Cases

The ESCP covers 'civil and commercial' matters, subject to several restrictions and exclusions. Unlike the European Order for Payment, which only handles monetary claims, the ESCP also considers non-monetary claims. Such claims may seek orders to prevent a legal wrong, like trespassing or property damage, or to enforce an obligation, like delivery of goods.

However, the ESCP explicitly excludes certain matters from its purview, such as revenue, customs, administrative matters, and the liability of a state for acts or omissions in exercising state authority (acta iure imperii). The court will typically reject such claims as falling outside the ESCP's scope.

Additionally, the ESCP regulation does not apply to several other specific matters considered under civil and commercial issues. Article 2(2) details these exclusions, which include, but are not limited to: the status or legal capacity of natural persons, rights in property arising from matrimonial relationships or comparable relationships, maintenance obligations from family relationships, wills and succession, bankruptcy, social security, arbitration, employment law, tenancies of immovable property (unless actions on monetary claims), and violations of privacy and rights relating to personality, including defamation.

Statute of Limitations Europe 

When considering litigation in a civil dispute, it's crucial to be aware of the timeframe for taking action. All contemporary legal systems, including those of the 27 Member States, impose temporal limitations on civil claims. Laws governing these limitation or prescription periods vary greatly, both in terms of time limits and the events that suspend or interrupt them. The law applicable to the claim will also determine the limitation period affecting the claim.

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How to file a claim using the European Small Claims Procedure

Navigating the European Small Claims Court procedure can be complex, but with the right knowledge and guidance, you can effectively handle your case. In this section, we will walk you through the step-by-step process, from filing a claim to proceeding to judgment. Whether you're seeking to recover a debt, resolve a dispute, or enforce a judgment, our comprehensive guide will provide you with the essential information and practical tips you need to successfully navigate the European Small Claims Court

Step 1: Filing a Claim at the European Small Claims Court

The first step in utilising the European Small Claims Procedure (ESCP) involves determining the basis of your claim and gathering all necessary written material to support it. Once you have your supporting documents ready, you must initiate the procedure by obtaining the Claim Form, Form A, which marks the beginning of the ESCP process.

Here are detailed steps to help you navigate this process:

1. Obtain the Claim Form, Form A: This form should be available in all EU Member States at each court or tribunal where the ESCP can be commenced. Depending on arrangements in individual Member States, the form may also be available in public places such as libraries, advice centres, and from consumer organisations. Furthermore, electronic versions of the form are available in all the official languages of the EU on the Dynamic Forms section of the e-Justice Portal. Here's a link to the English language version.
2. Understand and Complete the Form: The Claim Form, Form A, comes with detailed instructions on how to fill it out. If you need assistance, EU Member States are obligated to provide practical help in completing the forms. It's important to note, however, that while court staff may assist in completing the form, they are not allowed to provide legal advice. For advice regarding the substance of your claim, consider consulting with advice agencies.
3. Request an Oral Hearing: The ESCP is principally a written procedure, meaning that the court bases its decisions on the written information provided by the claimant and defendant, without the necessity for either party's physical presence. However, both parties have the right to request an oral hearing, and the court may also hold one if it deems it necessary for delivering a fair judgment. If you wish to request an oral hearing, you should complete paragraph 8.3 in the Claim Form, providing reasons for your request. If the defendant wants to request an oral hearing, they should respond to question 3 of Part II, again giving reasons for the request.

By following these steps, you can successfully initiate your claim using the European Small Claims Procedure.

Step 2: Identifying the Correct Court

Once your claim is prepared, the next step in the European Small Claims Procedure is to identify the appropriate court to file your claim. This typically is a court where either the defendant or the claimant resides.

Here is a step-by-step guide to help you navigate this process:

1. Identify the Competent EU Member State: The Brussels I (recast) Regulation provides jurisdiction rules for determining which EU Member State's courts are competent to handle your case. Start by understanding these rules and how they apply to your specific situation.
2. Find the Appropriate Court: Once you've identified the relevant Member State, your next task is to find the specific court in that country that can take your case. You may need to conduct some research or seek advice to determine the most suitable court, depending on the structure of the legal system in the relevant Member State.
3. Consider the Convenience for Consumers: If you're an individual consumer involved in a dispute, you might have the option to make your application in the court in the country where you live. This definition of a consumer refers to someone who is not acting for the purposes of a trade or business related to the subject matter of the dispute. This provision can be particularly beneficial as it might save you from having to navigate a foreign legal system.

More information about jurisdiction rules and the process of identifying the appropriate court can be found on the e-Justice Portal. Remember, the choice of court is an important decision that can impact the course of your case. Take your time to make sure you choose correctly.

Step 3: Sending the Claim Form to the Court

After identifying the correct court and preparing your claim, the next step is to send your claim form to the court. This guide covers what you need to include with your claim form, the language requirements, and how to deal with interest and currency issues.

1. Submitting the Claim Form: The claim form, known as Form A, can be sent to the court by post or any other acceptable means of communication. Depending on the court, it may also be possible to deliver the form in person. You can find information about the acceptable means of transmission on the e-Justice Portal or local websites of the country in question.
2. Include Supporting Documents: Given that the ESCP is a written procedure, you must send all necessary supporting documents along with the claim form. This could include things like orders, receipts, invoices, reports, correspondence between the parties, and even photographic or illustrative materials. The aim is to provide all the necessary information for the court to make a decision.
3. Language Requirements: Both the claim form and supporting documents should be in the language of the court or a language the court accepts. You can find this information on relevant websites. It may not always be necessary to translate supporting documents, so it could be helpful to ask the court directly.
4. Payment of Court Fees: If the court requires a fee for lodging the claim, you may need to provide information about how you'll pay the fee. There's a space on the claim form for this. Some Member States may require the fee before the court procedure can begin.
5. Claims in Different Currencies: The financial value of the claim must be stated in the currency of the court. If the currency of the court differs from the currency in which you've formulated your claim, you'll need to convert the amount into the court's currency. If your claim's value exceeds the €5,000 limit, you'll need to convert the claim into euros to confirm it fits the criteria. Check with the court in advance for any specific procedures for currency conversion.
6. Treatment of Interest: Even though the claim's assessment doesn't consider the claimed interest, the interest figure or rate must still be stated, along with the basis on which interest has accrued. If your claim is based on a requirement to pay interest, this has to be stated and the value of the claim will be assessed based on that principal claim.

By following these steps, you can ensure your claim form is correctly prepared and sent to the appropriate court.

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Step 4: Court Review of the Application Form

Once you've submitted your claim form and accompanying documents, the court will then review these materials. The court's review involves checking that the form has been filled out correctly, whether the claim falls within the scope of the ESCP, and if the claim is well-founded. This step includes several key aspects:

1. Initial Review: The court's initial task upon receiving your claim is to check that the form has been filled out correctly and that all necessary accompanying documents have been provided.
2. Determining Scope: The court will also determine whether your claim falls within the scope of the ESCP. If the court decides that your claim is outside the scope of the ESCP, it will notify you, and you'll have the opportunity to withdraw the claim. If you do not withdraw, the court will proceed with the claim under the appropriate national procedure.
3. Request to Rectify the Claim Form: If there are issues with your Claim Form, the court may send you Form B, requesting that you complete or rectify the form. This could involve changing the language, adding additional information, or correcting obvious mistakes. The court will specify a deadline for you to respond. Failure to do so within the specified time could result in your application being dismissed. In exceptional circumstances, the court may extend this deadline to protect the parties' rights.
4. Claim Assessment: If the court believes your claim isn't well-founded, it will inform you. It's crucial to note that a dismissal at this stage doesn't decide the substance of the claim. You can re-submit the claim under the ESCP, taking into account the reasons the original claim was dismissed, or under a suitable national procedure.

Step 5: Court Notification to the Defendant

After the court reviews the claim, the next step involves notifying the defendant about the claim. Here's how the process typically unfolds:

1. Court Completion of Answer Form: The court completes Part I of the Answer Form, which is referred to as Form C, and sends it to the defendant. This form includes the details of the claim. If applicable, the court also sends copies of the supporting documents you provided. This process is carried out within 14 days from the day the court receives the correctly completed or rectified Claim Form.
2. Defendant's Response and Claimant's Actions: Upon receiving the defendant's response, the court will send you a copy of the response along with any supporting documents provided by the defendant. This also includes any counterclaims made by the defendant. The court has 14 days to send these documents to you.
3. Responding to a Counterclaim: If the defendant has made a counterclaim, you have 30 days to respond. This response can be made using the Answer Form or through another appropriate method. It's important to note that this 30-day period may be extended by the court in certain circumstances.

By closely following these steps, you can ensure the effective progression of your case through the European Small Claims Procedure. Remember that clear communication and prompt responses to any claims or counterclaims are critical to this process.

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Step 6: Proceeding to Judgment

The European Small Claims Procedure (ESCP) is primarily a written procedure, with the court determining what evidence and additional information are necessary to resolve any disputed matters. The court may request more details of the claim or counterclaim, collect evidence, or decide to hold an oral hearing.

Additional Information Request: The court can ask the parties for more details concerning the claim and/or counterclaim. It sets a time limit for the parties to provide this information, usually not more than 30 days from receipt of the defendant's response or claimant's response to a counterclaim. In exceptional circumstances, the court might extend this deadline to safeguard the parties' rights. Parties that do not comply with this request within the given time frame (or any extension) can face consequences, such as dismissal of the claim or counterclaim or a ruling against the non-compliant party.

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Oral Hearings: In some cases, the court may decide to hold an oral hearing, especially if a decision can't be reached based on written evidence alone or if a party requests one. The court would then summon the parties to a hearing scheduled within 30 days of the summons. The court determines the necessary evidence and how it will be obtained, communicating these requirements to the parties. If an oral hearing is held, the parties can propose how to deliver evidence, including the use of Information and Communications Technology (ICT) applications. Note that it's not mandatory to have a lawyer for the hearing.

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The Hearing Process: The court has complete control over the hearing process, deciding what evidence will be collected and how. It may use distance communication technology, such as videoconferencing or teleconferencing. The court is responsible for making legal assessments and always seeks to reach a settlement between the parties.

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Judgment Time: The court generally gives its judgment under these conditions:

• When a party has not performed any required action within the relevant time limit, the court can issue a judgment against that party upon the expiry of the time limit.
• Within 30 days of receiving a response to the claim or counterclaim, if no oral hearing is held, and no further information is required from any party.
• Within 30 days of receiving all the required information from a party.
• Within 30 days of obtaining evidence without holding an oral hearing.
• Within 30 days of the oral hearing.

If the court cannot issue a judgment within the 30-day period, it must do so as soon as possible thereafter.

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Communicating the Judgment: The court serves the judgment to the parties. Usually, this should be done immediately after the judgment is issued and preferably within the previously mentioned time limits. If the parties don't receive the judgment within a few days after these time limits expire, it is recommended they inquire with the court about the status of the judgment.

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Step 7: Follow up after the Judgment

Once the judgment has been granted, the winning party can proceed to enforce it. This can be done in another EU Member State under the following conditions:

• The judgment can be enforced as if it had been given in that State.
• There's no need for a special procedure.
• No declaration of enforceability is required.
• The enforcement can proceed irrespective of any possibility of an appeal.
• There's no need for a postal address or an authorized representative in that State.
• No security deposit or similar financial guarantee is required.

Before proceeding to formal enforcement, it's wise for the judgment creditor (the party in whose favor the judgment has been granted) to consider all factors that indicate whether enforcement of the judgment is worthwhile. It's generally recommended to first formally request payment or performance from the judgment debtor, along with a warning that failure to comply will lead to enforcement proceedings and additional costs.

Information about enforcement systems in the EU Member States can be found on the European e-Justice Portal. This includes details about national procedures for enforcement, as well as the names and addresses of enforcement agents in different States.

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Requirements for Enforcement of the Judgment: The party seeking enforcement must provide a copy of the judgment and a certificate issued by the court. Either party can request the court to issue this certificate, which is done using Form D.

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Language for the Certificate: The party seeking enforcement should inform the court about the Member State where enforcement is being sought and, if applicable, the specific location within that state if it has more than one official language. The certificate must be in, or accompanied by a translation into, the appropriate official language of the state where enforcement is sought. Upon request, the court can provide the certificate in any other official language of the EU institutions using the multilingual dynamic standard form available on the European e-Justice Portal. However, the court isn't required to provide a translation or transliteration of the free-text fields in the certificate; this is the responsibility of the party seeking enforcement.

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Defendant’s Response in Small Claims Court Cases in the EU

The defendant in an ESCP case can choose to respond to the claim after it's been served or opt to do nothing. If the defendant doesn't respond within 30 days of service, or within any extended period allowed by the court, the court will proceed to grant judgment on the claim.

A defendant can respond to the claim using Part II of Form C or another appropriate method. The response should be supported by any relevant documents that underpin the defendant's argument. This response must be submitted within 30 days of service. The court may extend this period in exceptional circumstances, if necessary, to safeguard the rights of the parties. An application would need to be submitted to the court for such an extension, in accordance with the court's procedures.

When responding to the claim, the defendant has several options. These include:

• ‍Settling the case by paying the amount claimed.
• Admitting to the claim in substance and either: A) Agreeing that the sum claimed is payable and making payment, or B) Offering to make payment to settle it in full either by paying a deferred lump sum or by installments.‍
• Disputing the amount claimed by either: A) Disputing the substance of the claim, either in whole or in part, and potentially making a counterclaim using Claim Form A, or B) Challenging the jurisdiction of the court without disputing the substance of the claim.‍
• Challenging the claim on procedural grounds such as: A) The subject matter is outside the scope of the ESCP, B) The value of the claim exceeds the ESCP financial limit or B) It's not a cross-border claim.

The defendant can also request an oral hearing using paragraph 3 of Part II of Form C, indicating which witnesses and other evidence will be submitted. They can also attach any relevant supporting documents, including any in support of a counterclaim.

If the challenge to the jurisdiction is successful (for instance, if the claim is against a consumer and the consumer jurisdiction rules have not been followed), the claim can't continue. In this case, the claimant must withdraw the claim and, if desired, lodge a new claim in a competent court.

If the court determines that the claim is outside the scope of the ESCP due to the claim's value or subject matter, it must inform the parties within 30 days of receiving the defendant’s response. The claim can't proceed under the ESCP in such a scenario. The claimant may withdraw the claim and consider lodging a fresh claim under the appropriate national procedure, or the court can proceed with the claim under the relevant national procedural law.

In the case of a counterclaim exceeding the financial limit of €5,000, both the claim and counterclaim fall outside the scope of the ESCP. As such, they can't proceed under the ESCP. The implications of this are as outlined in paragraph 4.6. The value of the counterclaim and the claim are evaluated separately without aggregation.

Costs and Court Fees for the European Small Claims Procedure

Fees for Lodging the Application

Initiating the European Small Claims Procedure (ESCP) typically requires payment of a fee to the court in most EU Member States. The specifics of this payment, which vary across jurisdictions, are to be detailed by the claimant in box 6 of the Claim Form, Form A. Detailed information about these costs or the procedure for their calculation can be found on the European e-Justice Portal in the section Court fees concerning Small Claims procedure. Additional expenses might be incurred if a lawyer is instructed or certain witnesses, like experts, are involved.

Allocation of Expenses to the Winning Party

Typically, at the conclusion of a case, the court awards expenses to the victorious party. These expenses should be proportional to the claim, and no disproportionate costs, such as lawyers' fees, should be awarded. While the ESCP aims to be a relatively low-cost procedure, expenses are still likely, even if a lawyer isn't instructed. When engaging a lawyer, a party must consider the likelihood of not being awarded the costs of legal advice, even if they emerge victorious.

Costs Associated with a Hearing

In addition to the court fee, parties should be aware of the potential costs if a hearing is requested and approved by the court. These might include expenses related to expert and other witnesses, document translation, and special procedures used for the hearing, such as video-conferencing. The court will consider these additional costs, particularly if oral testimony or expert evidence is required, and will only proceed with these if a judgement can't be reached based on other evidence. As a rule, hearing costs should be minimized by using the simplest and least burdensome methods of gathering evidence.

Responsibility for ESCP Costs

Generally, the party against whom the judgement is delivered will cover the costs of the proceedings. However, the court will ensure these costs are not disproportionate to the value of the claim or incurred unnecessarily. This assessment includes costs incurred by the victorious party, even if they had engaged a lawyer.

Enforcement Costs of the ESCP

Before commencing a claim, claimants should consider all factors to evaluate if pursuing the claim is worthwhile. These include not only the costs of the procedure but also fundamental questions regarding the defendant's ability to meet the claim. It's important to be aware that, in addition to the ESCP procedure costs, enforcement of the judgement will likely incur further expenses, especially in relation to the sum awarded.

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Do I need a small claims lawyer in the EU? 

According to Article 10 and Recital (15), legal representation is not mandatory in the ESCP, and any national laws of a Member State enforcing such a requirement are not applicable. Similarly, Article 21(3)(a) clarifies that, for the enforcement of a judgement under the ESCP, an authorized representative in the Member State of enforcement is not necessary. This rule, however, does not extend to agents carrying out the execution measures in that State.

The rationale behind not requiring legal representation is to minimize litigation costs. Still, if a party is considering hiring a lawyer, they should remember that even if the claim is successful, the court might not permit the costs of instructing the lawyer to be recoverable from the other party. This restriction is based on Article 16, which disallows costs deemed unnecessary or disproportionate to the claim. Recital (29) reinforces this, suggesting that the court, when determining the proportionality of costs, should consider the representation by a lawyer of the party favored by the judgement, keeping in mind the ESCP's overall aim of simplicity and cost-effectiveness.

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Appeals Against the Judgment in the ESCP

The option to appeal against a judgment given under the ESCP is dictated by the laws of each individual EU Member State. Information regarding the possibility of appeal can also be accessed on the European e-Justice Portal.

A defendant can apply for a review of an ESCP judgment at the court with jurisdiction in the EU Member State where the judgment was given under the following circumstances:

• The defendant was not served with the Claim Form, or was not summoned to the oral hearing, in adequate time or in a manner that allowed for the arrangement of a defense.
• The defendant was unable to object to the claim due to circumstances beyond their control or due to extraordinary circumstances, without any fault on their part.

It's worth noting that a review is not possible if the defendant failed to challenge the judgment when it was possible to do so, particularly by lodging an appeal. The request for a review should be made within 30 days from the day the defendant became acquainted with the contents of the judgment and was in a position to react.

It's important to remember that it is not possible to seek a review of the judgment in any state where enforcement of the judgment is sought.