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I. FACILITATING CROSS-BORDER DEBT RECOVERY—THE EUROPEAN PAYMENT ORDER AND SMALL CLAIMS REGULATIONS

Published online by Cambridge University Press:  09 May 2008

Aude Fiorini
Aude Fiorini
Affiliation:
University of Dundee.
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Abstract

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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 57 , Issue 2 , April 2008 , pp. 449 - 465
Copyright
Copyright © 2008 British Institute of International and Comparative Law

A. Introduction

The Brussels I Regulation,Footnote 1 and its predecessor the Brussels Convention of 1968,Footnote 2 have without doubt brought substantial progress in the ease of enforcement of foreign judgments handed down in other Member States. Yet facilitating the free movement of judgments is deemed to be ‘not enough to enable the citizens and firms to take full advantage of the rights conferred on them in the Union area’.Footnote 3 Through a series of recent multifaceted initiatives the European legislator is now striving to erase the impact of internal borders on creditors.

1. Limitations of the current system

Various practical considerations may be viewed as impeding cross-border consumer transactionsFootnote 4 and international commercial activity. Aside from important uncertainties concerning the practicalities of intra-European payments (in terms of costs, possible delays, transactions security) that Brussels is keen to tackle through the establishment of a Single European Payment Area,Footnote 5 it has notably been established that the ‘differences between the payment rules and practices in the Member States constitute an obstacle to the proper functioning of the internal market’.Footnote 6 Given that late payments, which are ‘in effect greater with cross-border transactions than with domestic transactions’Footnote 7 have an effect on European businesses, particularly on SMEs,Footnote 8 in that they create risks and market distortions which jeopardize the ability of businesses to take advantage of the Single Market,Footnote 9 work has been undertaken with a view to reducing the current gap between the free circulation of goods and services on the one hand, and the timely receipt of payments on the other.Footnote 10

Any positive impact such measures may have on intra-European commercial activity could nevertheless be defeated if judicial or legal borders at the stage of the recovery of overdue payments are maintained to the extent that swift, efficient and inexpensiveFootnote 11 access to justice is not in fine guaranteed. In this regard, the advancement marked by the Brussels Convention and the Brussels I Regulation appears inherently limited from two main perspectives.

First of all, the Brussels I regime continuesFootnote 12 to presuppose that a judgment given in another Member State will first need to be declared enforceable in the Member State of enforcement by a special declaratory decision: the instrument maintains an exequatur procedure, albeit in a simplified form.Footnote 13 Because the continued existence of an intermediary procedureFootnote 14 was perceived as not only unnecessary with regard to judgments on claims uncontested by their debtor but very much as a incentive for recalcitrant or fraudulent debtors to (further) delay in making payment, Regulation (EC) No 805/2004 complemented the Brussels regime and created a European Enforcement Order for uncontested claims.Footnote 15 This instrument, which entered into force in January 2005, provides for the suppression of the exequatur procedure for uncontested claims judgments for the payment of sums of money which are due, provided these judgments are certified in the country of origin and meet a number of conditions.Footnote 16 Such abolition of any intermediate measure required to enable the enforcement of a foreign judgment was one of the first concretizations of the principle of mutual recognition,Footnote 17 which has been the ‘cornerstone of judicial cooperation in civil matters’ since the Tampere European Council of 1999.Footnote 18 The logic of mutual trust is pushed to its maximum in that a decision ‘that has been certified as a European Enforcement Order (EEO) by the court of origin should, for enforcement purposes, be treated as if it had been delivered in the Member State in which enforcement is sought’.Footnote 19 The transfer (and drastic reductionFootnote 20) of the control of the decision of which enforcement is sought from the requested State back to the State of origin of the decision is achieved via an indirect harmonization of fundamental procedural rules: decisions may only be certified if they meet detailed minimum standards of service to, and information of, the judgment debtor.Footnote 21 States are free not to follow these standards but their decisions will be excluded from this system of automatic enforceability while they will have to recognize and enforce EEOs from States which comply with the minimum standards.

Improving the conditions of enforceability of foreign judgments, however, only solves part of the problem: the free movement of judgments is not an end in itself but only another step towards execution. Yet under both the Brussels schemeFootnote 22 and the EEO regimeFootnote 23 (and the new European payment procedureFootnote 24 and small claimsFootnote 25 instruments), the actual execution remains governed by the domestic law of the Member State in which enforcement is sought. Current national approaches to enforcement vary substantially from one Member State to the next. This great diversity in national enforcement rules is said to be ‘severely hampering cross-border debt collection’Footnote 26 and the first steps towards a legislative proposal concerning enforcement have now been taken in the form of a Green Paper on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.Footnote 27 This document already announces the forthcoming publication of a further Green Paper on measures enhancing the transparency of the debtor's assets.Footnote 28 Other measures may also be considered as suggested by the 2003 study on making more efficient the enforcement of judicial decisions within the EU.Footnote 29 Given any work in this area should not lead to the infringement of the traditionally strictly territorial jurisdiction to enforce (an aspect of State sovereignty), it is interesting to note that the recommendationsFootnote 30 made in the 2003 study all related to the creation of instruments which would only ‘supplement the existing remedies in the national enforcement systems’Footnote 31 rather than harmonize national laws. In addition, the creation of such instruments was to be made possible by the imposition of minimum standards of substantive and procedural law.

2. The move into procedural harmonization—background to the new instrument

The intrinsic limits of the Brussels regime are dictated primarily by the fact that it does not entail any approximation or harmonization of procedural law. This has been understood by the Commission which, at the end of the 1990s, stressed the necessity that further steps be taken, notably ‘to accelerate and simplify the procedure so as to mould it more to the needs of the citizens and the firms by providing an even quicker system of exchange’.Footnote 32 The attraction of a general move into the area of procedural law is not recent. The Community institutions have long expressed a desire to simplify civil procedures with a view to ensuring a more effective implementation of justice.Footnote 33 Yet it was not until the Vienna Action Plan of 1998Footnote 34 and then the Tampere European Council of 1999Footnote 35 that a political will to go beyond the acquis of the Brussels Convention and into the approximation of procedural law was clearly affirmed.Footnote 36 In particular, the European Council invited the Council ‘on the basis of proposals by the Commission, to establish … special common procedural rules for simplified and accelerated cross-border litigation on small consumer and commercial claims … and on uncontested claims’.Footnote 37 In September 2000, the Commission transmitted to the then 15 Member States a questionnaire on their ‘small claims court procedures’. As shown in the analysis of the responses thereto, the aim was to find out if recourse was made in Member States to specific procedures (and/or specialized courts) in order to accelerate the treatment of some applications and facilitate their execution.Footnote 38 Such a study was necessary to assess the extent to which Member States responded to the situation of litigants who may have to start proceedings in order to get payment but may be dissuaded to sue either because of the disproportionately high costs of the proceedings compared to the value of the claim, or because, independently of the amount of the claim, the claim is uncontested but the procedure available is exceedingly complex. The responses to the questionnaire brought to light that Member States resorted to three main types of procedures (or a combination thereof) enabling the simplified treatment of certain disputes: ‘ex parte mechanisms’ (whereby a decision may be rendered very rapidly if the defendant, who has been duly served, is in default); ‘small claims procedures’; or ‘payment order procedures’.Footnote 39 Meanwhile, the Council's draft programme of measures for the implementation of the principle of mutual recognition of decisions in civil and commercial matters emphasized the link between the harmonization of procedural law and the abolition of exequatur.Footnote 40 However, the Commission's 2002 Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation stressed that, whilst related these aspects, had to be dealt with separately as

the abolition of exequatur is of no relevance to a creditor, who, in a cross-border case, has to sue a defendant in another Member State where an efficient procedure for the collection of uncontested claims is not available. Vice versa, the use of such a procedure leading to a decision issued in the State in which the defendant is domiciled will, in the vast majority of cases, remove the need to enforce this decision in a third Member State.Footnote 41

This led the Commission to opt for a ‘two-tiered strategy’: the ‘abolition of exequatur’ for all enforceable titles on uncontested claims, ‘regardless of the nature of the proceedings’ (through the EEO RegulationFootnote 42) and the creation, in a separate instrument, of a ‘specific harmonised procedure for the recovery of debts that are presumed to remain uncontested, namely the European order for payment’.Footnote 43 In fact this strategy became three-fold: the 2002 Green Paper resulted in two separate initiatives, which led to the adoption in December 2006Footnote 44 of a Regulation creating a European order for payment procedure and in July 2007 of another Regulation establishing a European small claims procedure.Footnote 45

B. Regulation (EC) No 1896/2006 of the European Parliament and the Council of 12 December 2006 Creating a European Order for Payment ProcedureFootnote 46

The Regulation, which will apply from 12 December 2008 in all Member States except Denmark,Footnote 47 aims to ensure rapid debt recovery by creating a specific, inexpensive, fast-track, optional procedure for settling claims which, it is assumed, will not be contested, as well as permitting the free circulation of these European orders for payment (EOP).Footnote 48 According to the recital, this initiative is ‘of paramount importance for economic operators in the European Union, as late payments constitute a major reason for insolvency threatening the survival of businesses … and resulting in numerous job losses’.Footnote 49 Community legislation is said to be rendered necessary by the fact that the existence in a majority of States of domestic simplified procedures, the content of which varies considerably and some of which are inadmissible or impracticable in cross-border cases, results in an uneven access to justice and a distortion of competition within the internal market.Footnote 50

1. Scope

The Regulation applies to civil and commercial matters in cross-border cases.Footnote 51 Although Article 2 negatively defines this material scope in a similar way to Article 1 of the Brussels I Regulation,Footnote 52 one major difference is that the EOP Regulation will not apply to claims arising from non-contractual obligations unless their amount can be determined with a sufficient degree of certainty.Footnote 53 The EOP procedure is only available for pecuniary claims for specific (but unlimited) amounts that have fallen due at the time of the application.

2. Application for an EOP

The claimant in principle applies for an EOP before a competent court, notably under the Brussels I Regulation; in case of a claim based on a consumer contract and made against a consumer, the only competent court will be the court of the consumer's State of domicile.Footnote 54 The application is made using a standard formFootnote 55 which requires a number of details (names and addresses of the parties, amount of the claim, cause of action, description of evidence supporting the claim, grounds of jurisdiction, cross-border nature of the case).Footnote 56 In order to facilitate the use of this procedure, it is to be noted that legal representation is not mandatoryFootnote 57 and that the application may also be submitted electronically.Footnote 58 As Article 7, recital 14 and form A show, Regulation 1896/2006 has here tried to find a compromise between the two European models:Footnote 59 the evidence model,Footnote 60 where the claimant must produce a piece of evidence of the claim; and the no-evidence model, where no evidence is required.Footnote 61 An EOP application requires a description of the available evidence.Footnote 62

3. Order of the court

After examinationFootnote 63 of the application (possibly as rectifiedFootnote 64 or modifiedFootnote 65), the court will either issue the EOP or reject the application. An application may only be rejected on the basis of the grounds enumerated in Articles 11(1)(a)–(d);Footnote 66 the claimant will have no right to appeal the decision.Footnote 67 If Article 8 requirements are met, the EOP will be granted and served on the defendant by one of the methods specified in the Regulation.Footnote 68 The EOP will contain all the information the defendant will need to make an informed choice,Footnote 69 ie to decide whether to pay the amount indicated or oppose the order within 30 days.Footnote 70 To this end, another standard form will be used,Footnote 71 which does not specify the reasons for the opposition. If the defendant has opposed, the proceedings will continueFootnote 72 in accordance with the rules of ordinary civil procedure.

4. Enforcement of an EOPFootnote 73

If the debtor has neither opposed within the time limit nor paid, the EOP will become enforceable in accordance with Article 18. The enforcement provisions are broadly similar to the rules set out in the EEO Regulation: the EOP will be automaticallyFootnote 74 recognized and enforced in the other Member States,Footnote 75 the enforcement procedures being governed by the law of the State of enforcement.Footnote 76 As in the EEO Regulation, a defendant who has failed to oppose in time will, at this stage, be able to apply for review of the EOP in the Member State of originFootnote 77 (which, upon application of the defendant, can lead to a stay or limitation of the enforcement in the State of enforcementFootnote 78). In addition, the defendant may, in specific cases of irreconcilability of the EOP with an earlier decision, apply for refusal of enforcement in the Member State of enforcement.Footnote 79

5. Costs

In line with the Regulation's objectives, Article 25 provides that the combined court fees of an EOP and the ordinary proceedingsFootnote 80 should not exceed the court fees of ordinary proceedings.

C. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 Establishing a European Small Claims Procedure

The Regulation, which will apply from 1 January 2009 in all Member States except Denmark,Footnote 81 aims to establish an optional procedure with a view to simplifying, speeding up and reducing costs of litigation concerning small claims and eliminating exequatur of judgments given in that procedure.Footnote 82 Although many Member States have introduced civil procedures for small claims, these largely vary and the obstacles for obtaining a fast and inexpensive judgment are exacerbated in cross-border cases. The objective of the establishment of a European procedure for small claims is therefore to

facilitate access to justice for the distortion of competition within the internal market due to imbalances with regard to the functioning of the procedural means afforded to creditors in different Member States entails the need for Community legislation that guarantees a level-playing field for creditors and debtors throughout the European Union.Footnote 83

1. Scope

The Regulation applies to cross-border casesFootnote 84 in civil and commercial mattersFootnote 85 where the value of the claim does not exceed €2,000Footnote 86 at the time the claim form is received by the court.Footnote 87

2. Procedure

The European Small Claims (ESC) procedure commences with the claimant filling in a standard formFootnote 88 and lodgingFootnote 89 it with the competentFootnote 90 court together with a description of the evidence supporting the claim and possibly any relevant documents. Unless the claim (possibly as amendedFootnote 91) is unfounded or inadmissible,Footnote 92 the court will proceed under the Regulation:Footnote 93 within 14 days, a copy of the claim form, a form filled in by the court and possibly supporting documents will be servedFootnote 94 on the defendant, who will have 30 days to submit a responseFootnote 95 on a standard form accompanied, where appropriate, by supporting documents.Footnote 96 The procedure shall conclude within 30 days of receipt of this response. Either a judgment will be delivered immediately, or the court may demand further detail, take evidence or summon the parties to an oral hearing.Footnote 97 Very specific time limits are foreseen by the Regulation, which nevertheless provides that these may be extended in exceptional cases. However, as a rule, courts should act as soon as possible, even where the Regulation is silent.Footnote 98 The issue of possible appeals against a judgment given in the ESC procedure is left to Member States.Footnote 99 The Regulation imposes that the unsuccessful party shall bear the costs of the proceedings (bearing in mind that costs should not be judicially awarded to the successful party to the extent that they are unnecessarily incurred or disproportionate to the claim).Footnote 100

3. Recognition and enforcement

ESC judgments are enforceable notwithstanding an appeal.Footnote 101 With respect to enforcement, the Regulation again uses the same formula as in the EEO Regulation. Judgments are recognized and enforced in other Member States under the same conditions as domestic judgments, provided they are certified and a copy of the judgment and the certificate are provided,Footnote 102 the enforcement procedures being governed by the law of the State of enforcement.Footnote 103 If the ESC judgment has been challenged, can still be challenged, or if an application for review has been lodged under Article 18, enforcement may (upon application) be stayed or limited.Footnote 104 In addition, the judgment debtors may, in specific cases of irreconcilability of the ESC judgment with an earlier decision, apply for refusal of enforcement in the Member State of enforcement.Footnote 105

4. Simplicity and swiftness of the ESC procedure

The whole ESC procedure relies on the use of standard forms.Footnote 106 Member States shall, in particular, ensure that the claim form is available at all courts where an ESC procedure can be commenced.Footnote 107 The procedure should in principle be written;Footnote 108 courts are directed to use the simplest methods of taking evidence;Footnote 109 legal representation is not mandatory;Footnote 110 parties shall, where appropriate, be given assistance,Footnote 111 shall not be required to make any ‘legal assessment’Footnote 112 and shall be informed by courts about procedural questions;Footnote 113 postal service should be used.Footnote 114 While the claim form, response, counterclaim and description of evidence must be submitted in the language of the court, the translation of any other document may only be requested if necessary for giving the judgment.Footnote 115

D. Concluding Remarks

With Regulations (EC) No 1896/2006 and 861/2007, the Community has signalled the beginning of the creation of a European, uniform, civil procedure.Footnote 116 Only time will tell if this move into procedural law has been successful from a practical, legal and commercial point of view. Meanwhile, it is interesting, by way of conclusion, to concentrate on two important common features of the new instruments.

1. Definition of cross-border cases

One of the most noteworthy elements of the Regulations is that they contain a definition of cross-border cases.Footnote 117 The inclusion of a provision to this effect was the result of a long battle between the Commission and the Council (and the Parliament). The initial Commission proposals provided that the procedures should apply to both cross-border and national cases. The Commission was indeed of the view that ‘it would not only be inappropriate but counterproductive to constrain the scope of application of th[ese] procedure[s] to cross-border cases only’.Footnote 118 The Commission called for a flexible interpretation of the notion of ‘cross-border implications’ (that Article 65 ECT imposes as a prerequisite for Community competence): according to this liberal construction, Article 65 permits legislation which is not confined to cross-border lawsuitsFootnote 119 but extends to purely internal situations where a common tool embracing both types of cases plays an instrumental role in the working of the internal market. Relying on the fact that most linguistic versions of the Treaty use the term ‘matter’ and not ‘measure’, the Commission also stressed that procedural law is a matter which ‘may by its nature have cross-border implications’.Footnote 120 The Commission referred to two main arguments to justify its inventive interpretation: the undesirability, from a political and economic point of view, of a limitation to cross-frontier situations; and a definitional difficulty. In essence the Commission felt that a limitation to cross-border cases would distort competition in the internal market and that it would be politically difficult to explain why a more efficient mechanism should be available in cross-border than in domestic situations.Footnote 121 In addition it was claimed that every judgment may potentially ‘take on a cross-border nature if it needs to be enforced in another Member State’; and that the ‘distinction between cross-border and internal scenarios is much more difficult than it might appear to be at first sight and would inevitably contain an element of arbitrariness’.Footnote 122

While aspects of these arguments may prima facie appear valid, the justification given fails to convince. However politically and economically desirable it may be for the Commission to provide a regime applicable to both internal and international cases, it does not justify an ultra vires action on the part of the Community. The legal basis for the actions of the Community lies in two reasonably clear provisions.Footnote 123 Article 61(c) of the EC Treaty enables the Council to adopt ‘measures in the field of judicial cooperation in civil matters as provided for in Article 65’. The latter provision refers to ‘measures in the field of judicial cooperation in civil matters having cross-border implications … and insofar as is necessary for the proper functioning of the internal market’. The reading of the Commission would have consisted in essence in ignoringFootnote 124 that there are two conditions in Article 65. To be within Community competence, measures do not merely need to appear necessary for the functioning of the internal market, they also need to have cross-border implications. In this context, the difficulty that there may be in practice in drawing the line between cross-border and internal situations can be easily overcome if a clear, precise and easy-to-apply definition of cross-border cases is implemented.Footnote 125 Interestingly, such a definition was not without precedent as evidenced by Article 2 of Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes.Footnote 126

Unsurprisingly, the broad interpretation proposed by the Commission was rejected during the Informal JHA Council of September 2005 in Newcastle, where a ‘very large majority of Member States’Footnote 127 took the view that the new procedures should be confined solely to cross-border disputes.Footnote 128 Both the Council and the European Parliament proposed to restrict the scope of the EOP and the Small Claims Regulations to cross-border cases, and suggested the inclusion of a definition of cross-border cases very similar to that used in the Legal Aid Directive: a cross-border case being one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised.Footnote 129 It is to be noted that, in the context of the EOP negotiations,Footnote 130 such amendments were only accepted in part by the Commission, which attempted to widen the definition further by deleting the reference to ‘Member’ State with respect to the domicile or habitual residence of the parties.Footnote 131 The Common Position adopted by the Council on 30 June 2006, however, maintained the reference to ‘Member States’ and the Commission, whilst ‘regretting’ this limitation, eventually submitted.Footnote 132 Anxious, nevertheless, to avoid that such repeated definitions of cross-border cases might be interpreted as an interpretation of the obligation foreseen in Article 65 ECT, the Commission made a declaration stressing that the definition was only ‘one among other possibilities to limit the scope of application of this Regulation in the context of Art 65’ and that ‘it is not necessary to limit the scope of application by reference to a general definition of “cross-border” in the instruments relating to private international law’.Footnote 133 Given the legislative history of the Regulations and the motivation of the Commission, such a declaration is not entirely surprising (although it was not reiterated with regard to the Small Claims Regulation). The insertion of an identical definition of the geographical scope of these instrumentsFootnote 134 can, however, only be welcome, not least as a way of promoting the all-important principle of legal certainty: not only does it exclude all doubts as to the competence of the Community but it will equally facilitate the practical application of these measures.Footnote 135 It should also assist creditors in their quest for the best procedural devices.

2. Number of alternative routes available to creditors

Both Regulation No 861/2007Footnote 136 and Regulation No 1896/2006Footnote 137 provide that the procedure they establish should serve as an additional, alternative means for applicants, who remain free to rely on domestic procedures (or other procedures available under Community law according to Regulation No 1896/2006). This latter instrument additionally stresses that it neither replaces nor harmonizes the existing domestic mechanisms.Footnote 138 The decision to give an optional character to these new procedures was in part explained in terms of proportionality, as a way of ensuring that the proposals were limited to what was strictly necessary in order to attain their objectives.Footnote 139 The technique used (a Regulation creating a new, uniform but optional mechanism) was presented as better than a Directive (that would have required an adaptation of national legislation to the standards set) in that it would assure a minimum level of efficiency for the recovery of uncontested claims while permitting Member States to continue to rely on even better-functioning domestic systems where available.Footnote 140 It is important to stress that this policy choice also made sense initially in view of the rather weak legal basis of the proposed instrument: the Commission had opted for an optional mechanism also because it wanted to establish a procedure that would apply to both cross-border and internal cases. Such a step was easier to justify in the context of a non-exclusive mechanism. It is not apparent why this was not called into question once the scope of the Regulations was eventually restricted to cross-border cases; after all the objective of simplification could have been said to require that the new procedures replace their national equivalent in cross-border cases.

In practical terms the optional character of the new European procedures means that a creditor will be able to pursue his claim by resorting to any available national procedure,Footnote 141 possibly in conjunction with the Brussels I Regulation alone, or, as complemented by the EEO Regulation. Alternatively, a creditor could prefer to rely on the EPP Regulation or perhaps the Small Claims Regulation, where the claim is less than €2,000. The multiplication of possible avenues might appear advantageous; after all these routes aim at a unique goal—the swift satisfaction of a creditor who will be best placed to decide what best suits his particular needs. Yet this is bound to lead to great complexities: is a creditor always equipped to decide which avenue will be most cost-effective, which procedure would lead to the quickest debt recovery, or, in view of the numerous residual procedural differences, and of the availability of different fora, where would it be best to take advantage of a specific European procedure?Footnote 142 Of course comparable difficulties exist even at a domestic level in a number of States, but the international dimension will render the identification of the best approach even more difficult,Footnote 143 which is paradoxical in view of the publicized aim of all these instruments: simplifying, speeding up litigation and reducing the costs thereof.

The consequences of the incremental approach to law-making which so characterizes the Community may eventually be remedied, albeit by further legislation, for in September 2006, at the informal JHA Ministerial Meeting in Tampere, EU Justice Ministers supported the call made by the Finnish Presidency to consider streamlining existing instruments in the field of procedural law, the ‘goal’ being ‘one single coherent legal act to be applied to cross-border trials’.Footnote 144 It is hoped that the Commission will make use of its right of initiative to this end,Footnote 145 such a consolidation exercise being in line with the Hague ProgrammeFootnote 146 and the Civil Justice Programme established for 2007–2013.Footnote 147

References

1 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12.

2 Brussels Convention on jurisdiction, recognition and enforcement of judgments in civil and commercial matters, Convention adopted on 27 September 1968 ([1972] OJ L 299, 32), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland ([1978] OJ L 304, 1, and—amended text—77) and by the Convention of 25 October 1982 on the accession of the Hellenic Republic ([1982] OJ 388, 1), and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic ([1989] OJ L 285, 1), and by the Convention on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Brussels Convention ([1997] OJ C 15, 2).

3 Commission Communication to the Council and the European Parliament ‘towards greater efficiency in obtaining and enforcing judgments in the European Union’ [1998] OJ C33/3, 3, para 2.

4 Consumer protection and access to justice has been on the agenda for over 20 years: see eg Council Resolution of 25 June 1987 on consumer redress [1987] OJ C 176, 2. This early interest in particular led to the Commission's Green Paper of 16 November 1993 on access of consumers to justice and the settlement of consumer disputes in the single market COM(93) 576 final. A whole range of activities protecting consumers' economic and legal interests can be referred to. See <http://europa.eu/scadplus/leg/en/s16300.htm>.

5 See the Directive 2007/64 /EC of the European Parliament and the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC and 2006/48/EC and repealing 97/5/EC and its institutional dossier 2005/0245(COD) LEX 797. For a brief overview of the establishment of the Single European Payment Area, see A Prüm, ‘Après l'euro, l'espace unique européen des paiements’ [May–June 2007] Revue de droit bancaire et financier, Alertes 5, 1–3. For an analysis of the draft payment services directive of 24 April 2007, see M Van den Bosch & N Mathey, ‘La directive sur les services de paiement’ [July–August 2007] Revue de droit bancaire et financier, Dossier 19, 59–70.

6 98/198/EC: Commission Recommendation of 12 May 1995 on payment periods in commercial transactions, [1995] OJ L 127, 19–22.

7 Resolution on the Commission recommendation on payment periods in commercial transactions (C(95)1075-C4-0198/95) [1996] OJ C 211, 42.

8 For a definition of SMEs, see the Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, [2003] OJ L 124, 6.

9 According to the European Parliament, 50 per cent of all SME basic borrowing is used to fund commercial credit with prompt payers actually ‘subsidising bad payers’ since the cost of commercial credit is not included in the original price. See Resolution on the Commission recommendation on payment periods in commercial transactions (n 7).

10 Directive 2000/35/EC of the European Parliament and of the Council on combating late payment in commercial transactions [2000] OJ L 200, 35. See also J Albert, ‘Review of the effectiveness of European Community legislation in combating late payments for the DG Enterprises of the European Commission’, <http://ec.europa.eu/enterprise/regulation/late_payments/doc/finalreport_en.pdf>.

11 Eurobarometer 43.1 (Summer 1995) questioned what EU consumers saw as the main obstacles to buying or selling with another Member State: a third of respondents identified that it was ‘too difficult to settle disputes’. Eurobarometer 57.2 of 2002 supported again these findings; cf SEC(2005)351, 5. See also Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L 26. Under this instrument Member States shall grant under certain conditions legal aid to EU residents who are economically unable to meet the costs of proceedings.

12 The Commission will present a legislative proposal on the modification of the Brussels I Regulation aiming at the complete abolition of exequatur in 2008–9. See Commission Staff Working Document, Annex to the Communication from the Commission to the Council and the European Parliament, Report on the implementation of the Hague Programme for 2006, (Institutional Scoreboard, table 1), SEC(2007) 896, 43.

13 In this regard, the Regulation goes further than the Convention in that the Regulation has introduced an accelerated exequatur procedure: in the first stage the competent court automatically grants exequatur. The debtor may appeal this decision; only then will the possible defences against the granting of the exequatur be heard, by the appellate court.

14 Although the Brussels Regulation largely guarantees the free movement of judgments in the European Judicial Area, a recent review of its application shows the consequences of the fact that the Regulation does not provide for a uniform procedure but largely refers to the national law of the Member States. While exequatur is granted in the overwhelming majority of cases and the exequatur proceedings are generally efficient, costs (notably the remuneration of lawyers and its possible reimbursement) vary enormously, which may keep creditors from enforcing their title abroad. See B Hess, T Pfeiffer & P Schlosser, ‘Report on the application of Regulation Brussels I in Member States’, Study JLS C4/2005/03 (Heidelberg, September 2007) 219 s, 281 s and 357 s.

15 [2004] OJ L 143, 15–39.

16 It is interesting to note that a limited comparison of the efficiency of Brussels I exequatur proceedings with EEO proceedings revealed that while over 90 per cent of Brussels I exequatur applications are successful, less than 50 per cent of EEO applications are. See Study JLS C4/2005/03 (n 12) 21–22.

17 The very first example of instrument abolishing exequatur in certain cases was found in Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338.

18 Presidency Conclusions, Tampere European Council 15–16 October 1999 (<http://www.europarl.europa.eu/summits/tam_en.htm>) point 33.

19 Regulation No 805/2004, Recital 8.

20 In ‘La coopération dans les procédures d'exécution’ (2004) 131 Droit et Patrimoine, C Nourissat shows the extent of the conceptual revolution implied by the EEO Regulation: the public policy exception (besides the control of the proper service to, and information of, the judgment debtor) has no role left to play so that if the Krombach case had been certified in France as an EEO, nothing would have prevented its enforcement in Germany … Similarly the House of Lords European Union Committee expressed concern (in the context of the small claims regulation) that ‘enforcement may not be resisted on public policy grounds (such as fraud or corruption) in the courts where enforcement is sought and that therefore the scheme for enforcement may not provide sufficient safeguards against abuse of the procedure’: European Small Claims Procedure, 23rd Report of Session 2005–6, HL Paper 118, 45.

21 Regulation No 805/2004, Arts 12–17.

22 Case 148/84, Deutsche Genossenschaftsbank v SA Brasserie du Pêcheur [1985] ECR 1981, para 18; Case 145/86 Horst Ludwig Martin Hoffmann v Adelheid Krieg [1988] ECR 645, paras 27 & 29.

23 Regulation No 805/2004, Art 20.

24 Regulation No 1861/2006, Art 21.

25 Regulation No 861/2007, Art 21.

26 Green Paper on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts, COM(2006)618 final.

27 ibid. See also the Commission Staff Working Document annexed to the Green Paper, SEC(2006)1341.

28 Green Paper (n 26) 3.

29 Study No JAI/A3/2002/02, available at <http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm>.

30 ibid 147–53.

31 ibid 148.

32 Commission Communication to the Council and the European Parliament ‘towards greater efficiency in obtaining and enforcing judgments in the European Union’ [1998] OJ C33/3 (n 3) 3, para 1. It was namely recognized that private law relationships ‘are set in the context of an area where widely divergent procedural systems coexist and render procedures less transparent than they might be, while procedures vary in cost and effectiveness’, ibid 5, para 6.

33 The first resolution of the European Parliament on this matter dates back 20 years: EP Res A2-152/86 of 13 March 1987.

34 The Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice [1999] OJ C 19, 1–15, especially 10–11, cites as measures to be taken within five years: ‘identifying the rules on civil procedure having cross-border implications which are urgent to approximate for the purpose of facilitating access C 19/10 23.1.1999 Official Journal of the European Communities to justice for the citizens of Europe and examine the elaboration of additional measures accordingly to improve compatibility of civil procedures’.

35 Under the heading ‘Greater convergence in civil law’, point 38 of the conclusions of the 1999 Tampere European Council (n 18) provides that: ‘The European Council invites the Council and the Commission to prepare new procedural legislation in cross-border cases, in particular on those elements which are instrumental to smooth judicial co-operation and to enhanced access to law, e.g. provisional measures, taking of evidence, orders for money payment and time limits.’

36 ibid point 34. It was maintained in the Hague Programme: Strengthening Freedom, Security and Justice in the European Union [2005] OJ C 53, 1–14, 13.

37 (n 35) point 30.

38 E Serverin, CNRS ENS-Cachan, ‘Des procédures de traitement judiciaire des demandes de faible importance ou non contestées dans les droits des Etats-Membres de l'Union européenne’ (9 July 2001) 6.

39 ibid 66 s.

40 [2001] OJ C 12, 4. On the initially blurred frontier between the creation of a European enforcement order and a European order for payment procedure, see JP Correa Dalcasso, ‘La proposition de Règlement instituant une procédure européenne d'injonction de payer’ [2005] Revue internationale de droit comparé 143–70, 146 s.

41 COM (2002) 746 final, 15.

42 (n 15).

43 COM (2002) 746 final, 15.

44 Regulation (EC) No 1896/2006 of the European Parliament and the Council of 12 December 2006 creating a European order for payment procedure [2006] OJ L 399, 1–10.

45 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L 199, 1–9.

46 See F Ferrand, ‘L'injonction de payer européenne est arrivée!’ (2007) 60 Droit et Procédures 66–70; C Nourissat, ‘Le Règlement (CE) n°1896/2006 du 12 décembre 2006 instituant une procédure européenne d'injonction de payer’ [2007] Europe, Etude 5; K Vandekerckove, ‘La procédure européenne d'injonction de payer’ [2007] IPR Tijdschrift 104–7.

47 Art 33 & Recital 32.

48 Art 1.

49 Recital, para 6. Interestingly, this justification had already been used in the context of the late payment directive but the 2006 review of the effectiveness of the European legislation on combating late payments (n 10) concluded that the Directive had not positively impacted on the rate of unemployment and insolvencies.

50 Recital, paras 7 & 8.

51 Art 1 See below, p 460.

52 In addition, it also contains the precision first found in Art 2(1) of the EEO Regulation: the inapplicability in cases of acta jure imperii.

53 Art 2(2)(d).

54 Art 6. This rule mirrors the indirect minimum requirement imposed by Art 6(1)(d) of the EEO Regulation.

55 Standard form A, Annex 1.

56 Art 7.

57 Art 24.

58 Arts 7(5) & (6).

59 For an overview of the different types of orders for payment that exist in Member States, see the Green Paper (n 41) 17 s.

60 As in Belgium, France, Greece, Luxembourg, Italy, Spain.

61 As in Austria, Germany, Finland, Sweden & Portugal.

62 Such a rule should limit the number of manifestly unfounded claims while simplifying the procedure: a no-evidence model removes the issue of translations, enables the electronic treatment of the application and solves the issue of the degree of judicial control that should apply. See Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure, Explanatory memorandum, COM(2004) 173 final/3, 10.

63 This is possibly automated, Art 8.

64 If the claim in not clearly unfounded or inadmissible but the Art 7 requirements are not met, the claimant may be invited to rectify the application, Art 9; standard form B.

65 If the Art 8 requirements are met only for part of the claim, the court invites the applicant to accept or reject an EOP for part of the amount, Art 10; standard form C.

66 The court shall reject the application if: the requirements set out in Arts 2–4, 6 & 7 are not met, the claim is clearly unfounded or the claimant failed to reply within the set time limit in the context of the modification or rectification of his or her application.

67 According to Art 11(3) the claimant will nevertheless be allowed to reapply for an EOP or have recourse to any other national procedure.

68 Arts 13–15. These provisions are largely similar to the provisions of service contained in Arts 13–15 of the EEO Regulation.

69 Art 12 (2)–(4): in particular the defendant will be given a copy of the application form, informed that the EOP was issued solely on the basis of the information provided by the claimant, that, unless opposed, the order will become enforceable within 30 days of service, and that if a statement of opposition is lodged, proceedings will continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure.

70 It is to be noted that although it is largely the no-evidence model that is used in Regulation No 1896/2006, the defendant will only have one shot to object to the claim, as is the case in Austria and Portugal; in the majority of other countries of this ‘family’, the absence of opposition within the time set leads to a decision which is not final but can be challenged by the defendant within yet another time limit.

71 This standard form will be supplied to the defendant with the EOP, Art 16(1).

72 Unless the claimant has explicitly requested that the proceedings shall terminate in the event of an opposition by the defendant, Art 16(1).

73 The initial Commission proposal did not contain any provisions dealing with the enforcement of the EOP, the idea being that the claimant could simply take advantage of Regulation No 805/2004.

74 Without the need for a declaration of enforceability and without any possibility of opposing its recognition.

75 Art 19.

76 Art 21.

77 Art 20. This rule somewhat compensates for the fact that the failure to oppose within the time limit leads to the enforceability of the EOP: application for review will be possible either where the EOP was served without proof of receipt by the defendant and not in sufficient time to enable him to arrange for his defence without fault on his part, or the defendant was prevented from objecting due to extraordinary circumstances without fault on his part.

78 Art 23.

79 Art 22.

80 In the case of a statement of opposition.

81 Art 29 & Recital 38.

82 Art 1; recitals 7 & 8.

83 Recital 7.

84 Art 3. See below, p 460.

85 The definition is very similar to that used in the context of Regulation No 1896/2006, except that more matters are specifically excluded from the scope of Regulation No 861/2007: arbitration, employment law, tenancies of immovable properties with the exception of actions on monetary claims, and violations of privacy and of rights relating to personality, including defamation, and the list of exclusions understandably does not refer to non-contractual obligations as is the case in Regulation No 1896/2006.

86 Art 2(1). This figure appears appropriate given the threshold of the existing domestic small claim procedures (ranging from €600 in Germany to £5,000 in England and Wales); it is high enough to attract a good number of cases and not too high that the simplification of procedural rules could not be justified (see Commission Staff Working Document—Comments on the Specific articles, SEC(2005)352, 2. It is to be noted that, ‘for the purposes of facilitating calculation of the value of a claim, all interest, expenses and disbursements should be disregarded’ (Recital 10 and Art 2(1)); the threshold may in the future be reviewed in accordance with Art 28. The Regulation may apply to non-monetary claims, the quantification being left to Member States. Although higher than the current threshold applicable to small claims procedures in Scotland (£750, unchanged since 1988), the limit imposed by Art 2(1) only seemed acceptable from an English point of view because the ESC procedure is only optional, see HL Paper (n 20) 29.

87 Art 2.

88 Standard claim form A, Annex 1.

89 Member States are invited to declare which means of communication are acceptable to them in this context, Art 4 (2).

90 Unlike Regulation No 1896/2006, Regulation No 861/2007 does not specifically refer to the provisions of the Brussels I Regulation. The Reference to the fact that the court seised must have jurisdiction in accordance with the Brussels I Regulation is, however, expressly made in form A: claim form (Annex I).

91 Art 4(4). The amendments must be made within the time set by the court, otherwise the claim will be dismissed.

92 In which case the application will be dismissed.

93 If the claim falls outside the scope of Regulation No 1896/2006, the court will proceed in accordance with its domestic procedural rules unless the claimant withdraws the claim, Art 4(3).

94 Service is governed by Regulation No 861/2007, Art 13. On language issues related to service, see also Art 6(3) and Recital 19.

95 If the respondent claims that the value of the non-monetary claim exceeds €2000, the court will decide whether the claim is indeed within the scope of the Regulation, Art 5(5). The respondent may also submit a counterclaim. Most provisions set out in the Regulation apply mutatis mutandis to counterclaims. See Arts 5(6) & (7).

96 Art 5. This response will be dispatched to the claimant within 14 days of receipt by the court, Art 5(4).

97 Art 7.

98 Recital 23.

99 Art 17. The re-introduction of domestic variations is problematic in view of the simplification objective. It is to be noted, however, that the practice across the UK is that very few small claims cases are appealed.

100 Art 16. Member States' approaches to costs vary considerably. The provision, which has been significantly amended, follows the position of most Member States, according to which all costs are paid by the losing party. According to the Commission such rule aims at not deterring creditors from taking advantage of the ESC procedure, yet the escape clause of the second sentence stresses the importance of the reduction of costs. On the position of the UK on this issue, see HL Paper 118 (n 20) 35–41.

101 Art 15.

102 Arts 20 & 21.

103 Art 21(1).

104 Art 23.

105 Art 22.

106 These are, as in the case of Regulation No 1896/2006, annexed to the Regulation.

107 Art 4(5).

108 Art 5. In case oral hearings are held, the use of video conference or other communication technology is allowed, Art 8.

109 Art 9(3).

110 Art 10.

111 Art 11 imposes that States ensure that parties are given assistance in filling in the forms. According to Art 14, parties should also be informed of the consequences of not complying with the time limits imposed by courts.

112 With this sibylline expression, the provision aims at ensuring that the parties are not de facto obliged to employ a lawyer (See SEC(2005)352 (n 86) 5): parties are solely required to give factual elements. This was felt to be in line with the practice of Member States having a domestic small claims procedure (Proposal for a Regulation of the European parliament and of the Council establishing a small claims procedure—Explanatory memorandum, COM(2005)87 final, 4). However, the implication of this provision on the position of jurisdictions in which conflict of laws rules are only applied if at least one of the parties has argued that they be applied is unclear, See HL Paper 118 (n 20) 25–28.

113 Art 12.

114 Art 13(1) provides that documents shall be served by postal service attested by an acknowledgment of receipt. Where this is not possible, the minimum standards of service imposed in the EEO Regulation apply.

115 Art 6.

116 For an overview of the European civil justice systems and the broad trends towards reform at European level, see C Hodges, ‘Europeanization of civil justice; trends and issues’ [2007] Civil Justice Quarterly 26, 96–123.

117 Arts 3(1) & (2) of Regulation No 1896/2006 and of Regulation No 861/2007 provide: ‘1. For the purposes of this Regulation, a cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court or tribunal seised. 2. Domicile shall be determined in accordance with Articles 59 and 60 of Regulation (EC) No 44/2001’.

118 COM(2004) 173 final/3 (n 62) 7. Exactly the same expression was used in the context of the Small Claims proposal: Proposal for a regulation of the European Parliament and of the Council establishing a Small Claims Procedure, Explanatory memorandum, COM(2005) 87 final, 6.

119 In which case, according to the Commission, Art 65 ECT would have referred to cross-border litigation.

120 COM(2005) 87 final (n 118) 5: this is because ‘taking account of the development of the internal market, most economic operators and consumers will sooner or later be involved in such litigation abroad’, ibid 6.

121 COM(2004) 173 final/3 (n 62) 8; COM(2005) 87 final (n 118) 6.

122 COM(2004) 173 final/3 (n 62) 7.

123 These provisions have now been amended by the Lisbon Treaty. According to the new Art 61(4), ‘the Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters’. Art 65 provides that ‘the Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.’ To this end, measures shall be adopted ‘particularly when necessary for the proper functioning of the internal market, aimed at ensuring … (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States … ’.

124 Whilst silent in the context of the EPP Regulation, the Commission indicated in its explanatory memorandum to the proposed Small Claims Regulation that in Art 65 the internal market requirement is in fact a restriction of the cross-border requirement; insisting on the ‘cross-border’ element would create new obstacles to access to justice in the European Judicial Area and would therefore be contrary to what had been intended by the drafters of this provision. The Commission further stressed that every instrument would then have to have its own ‘cross-border’ definition which would create significant difficulties in the application of those instruments: COM(2005) 87 final (n 118) 6.

125 Compare the difficulties raised by the absence of definition in the context of the Brussels I Regulation—see Case C–281/02 Andrew Owusu v Nugent B Jackson, trading as ‘Villa Holidays Bal-Inn Villas’, Mammee Bay Resorts Ltd, Mammee Bay Club Ltd, The Enchanted Garden Resorts & Spa Ltd, Consulting Services Ltd, Town & Country Resorts Ltd [2005] ECR I-1383.

126 [2003] OJ L 26, 41–47. Art 2(1) provides: ‘for the purposes of this Directive, a cross-border dispute is one where the party applying for legal aid in the context of this Directive is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced’. As a matter of fact, the Commission had also initially proposed that the legal aid directive should apply to both internal and cross-border cases: See the objectives, title and Art 1 of the Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings (COM(2002)13 final, 1, 3 and 13. The Council decided, however, that the ‘scope of the proposal should be restricted to legal aid for cases with cross-border implications’, C/02/175 (Luxembourg, 13 June 2002) 15.

127 CS/2005/8044, p 3.

128 A6/2005/240, pp 4 & 7. Of course, as had been suggested by the European Parliament in the context of the EPP Regulation, Member States who so wished could apply a similar procedure to internal cases: PRES/2005/296, p 6.

129 See P6_TA(2005) 0499 (EOP) & P6_TA(2006)593 (small claims). Compare the definition suggested in HL Paper 118 (n 20) 21: a cross-border case would be one ‘where the claim in question has arisen directly from the supply of goods or services out of one Member State into another, or supply within one Member State to a person resident in another Member State’. It was nevertheless recognized that it was unlikely that such a test would be acceptable to all Member States.

130 A year later, keen to avoid the lengthy procedure of the EOP Regulation in the context of the Small Claims negotiations, the Commission, the Council and the Parliament met for informal talks with a view to reaching an agreement at first reading; the Regulation proposal was amended by the Parliament at its first reading to reflect the compromise reached by the institutions and was therefore acceptable to the Council and accepted by the Commission. See the note from the General Secretariat of the Council of 31 May 2007, 9818/07, p 2.

131 Amended proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure (presented by the Commission pursuant to Art 250(2) of the EC Treaty), COM(2006) 57 final, 4 & 11.

132 COM(2006)374 final, 4.

133 COM(2006)374 final, 4. This point is difficult to admit when one considers the overall picture: whilst strictly speaking unnecessary, would it not be opportune to make sure that all instruments adopted as part of the mutual recognition programme have the same territorial scope?

134 A very similar definition was also agreed upon in the context of the Mediation Directive: a cross-border dispute is one in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party on the date on which: (a) the parties agree to use mediation after the dispute has arisen, or (b) mediation is ordered by a court, or (c) an obligation to use mediation arises under national law, or (d) an invitation is made to the parties, (common position) PRES/07/253 of 8 November 2007, p 14.

135 The plurality of domiciles, which can be seen as a problem in the context of the Brussels I regime (see for example Study JLS/C4/2005/03 (n 14) 85–89), should not raise any additional difficulty with regard to the application of Regulation Nos 1896/2006 & 861/2007, but will simply lead to a broad scope in relation to legal persons, and potentially to a lack of uniformity in the definition of scope of these instruments when dealing with natural persons as Art 59 of the Brussels I Regulation refers to the domestic law.

136 Art 1(1).

137 Recital 10 and Art 1(2).

138 Recital 10.

139 COM(2004) 173 final/3 (n 62) 8. COM(2005) 87 final (n 118) 6.

140 COM(2004) 173 final/3 (n 62) 8. The European Economic and Social Committee nevertheless expressed its belief that the EPP ‘must be deemed the most appropriate for the situation it covers as otherwise it would lose its legitimacy’. It therefore recommended that, ‘when the Regulation is adopted, the order for payment procedures provided for in the national legislation of some Member States should cease to have effect’. See Opinion of the Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure [2005] OJ 2005 C 221, point 4.9 at p 80. See also COM(2005) 87 final (n 118) 7. Pleading for a different approach—the harmonization of procedural law—see Correa Delcasso (n 40) 169.

141 It is to be noted that some (though not all) Member States consider their domestic order for payment procedure solely applicable in internal cases. The ECJ did not consider in 1999 that Article 34 of the Treaty (now, after amendment, Article 29 EC) precluded national legislation which excludes recourse to the procedure for obtaining summary payment orders where service on the debtor is to be effected in another Member State: Case C412/97 ED Srl v Italo Fenocchio [1999] ECR-I 3845.

142 It is to be noted that both Regulations provide that Member States shall cooperate to provide the general public and professional circles with information on a long list of relevant data (Regulation No 1896/2006, Arts 28–29; Regulation No 861/2007, Arts 24–25). The information is then made available in particular on the European Judicial Atlas.

143 The difficulty from the perspective of the claimant should also be put in the context of the difficulty, on the part of courts, to apply numerous instruments they rarely come across correctly. The Study JLS C4/2005/03 (n 14) concluded in this respect that ‘it seems advisable to provide for clear and well-defined instruments applicable in cross-border cases and not to create too many parallel instruments for international settings, which are only seldom applied.’ Indeed the European procedures are not entirely uniform given the residual application of domestic procedural rules. Variations in terms of efficiency, costs, possibility of appeals may (notably in the context of a small claims procedure) greatly impact on the desirability of such procedures. As a response, the House of Lords recommended that ‘Member States ensure that guidance is available to consumers faced with this choice’, HL Paper 118 (n 20) 23.

144 ‘EU Justice Ministers in favour of harmonisation of civil law provisions’, Press Release JHA (21 September 2006) available at <http://www.eu2006.fi/news_and_documents/press_releases/vko38/en_GB/168735/>.

145 It is unfortunate that whilst the Commission has already announced in its Communication on Implementing the Hague Programme: the way forward that, in the medium term, consideration will be given to a gradual process of consolidation in the criminal law area, no such ambition is mentioned with regard to civil matters, the Commission merely indicating that facilitating access to justice for citizens is a real challenge for the consolidation of the European area of freedom, security and justice, cf COM(2006)331 final, 8. For an overview of the current activities of the European Commission to improve the quality of legislation, see the Legal Services Directorate General, <http://ec.europa.eu/dgs/legal_service/legal_reviser_en.htm>.

146 The Hague Programme (n 36) 13 provides that the implementation of the programme of mutual recognition should be accompanied by a review of the operation of adopted instruments. A consolidation exercise could be launched as a result of such review.

147 Decision No 1149/2007/EC of the European Parliament and of the Council of 25 September 2007 establishing for the period 2007–2013 the Specific Programme ‘Civil Justice’ as part of the General Programme ‘Fundamental Rights and Justice’ [2007] OJ L 257, 16–22, 18. The Civil Justice programme defines as its specific objectives the fostering of judicial cooperation in civil matters aiming at ensuring legal certainty and improving access to justice and the guarantee of the sound implementation … and the evaluation of Community instruments in the area of judicial cooperation in civil and commercial matters.