The Dutch Perspective on Cross-Border Small Claims Litigation: Guarded Optimism and Pragmatism. A Normative and Empirical Approach

Abstract

This paper evaluates the implementation and application of the European Small Claims Procedure in the Netherlands, from both a normative and an empirical perspective. The central question is to what extent does the Regulation meet the objective of providing an EU-wide instrument that enhances access to justice and procedural justice in cross-border small claims litigation. The empirical research shows that the procedure is not used to its full potential, though there has been a slight increase in its application due to litigation in aviation cases. Dutch courts generally take a pragmatic approach, which contributes to access to justice and procedural justice. However, relatively high court fees, defects in the postal service, and the language requirements continue to be obstacles. The paper concludes with recommendations for the European legislator. Summary: As an adversarial European procedure with low thresholds, the European Small Claims Procedure (ESCP) has the potential to significantly improve access to justice in small claims litigation while preserving procedural rights. However, four years after its enactment in 2009, it is clear that in most Member States little use is made of this procedure. This paper evaluates its implementation and application in the Netherlands, both from a normative and an empirical perspective. The central question is to what extent does the Regulation meet the objective of providing an EU-wide instrument that enhances access to justice and procedural justice in cross-border small claims litigation. The Netherlands does not have a genuine national small claims procedure, but has a simplified procedure for cases that fall within the competence of the sub-district court (cantonal division of the District Court). In 2011, the threshold for these cases was raised substantially from €5,000 to €25,000. In the Netherlands, the idea of introducing an ESCP was generally welcomed, though doubt was raised as to its actual impact, among others in view of the low monetary threshold. The ESCP is, where necessary, implemented through a separate Implementation Act. The empirical research, consisting of data collection and interviews at the ECC-NL and at eight of the nineteen competent courts in the Netherlands (the four big courts and four courts in border regions), shows that the ESCP is seldom used. The number of cases in these courts has varied from only four to approximately thirty cases between 2009 and mid-2012. With few exceptions, they concern consumer cases. In the majority of these, the consumer is the claimant, particularly in instances involving long-distance sales contracts and aviation cases. The average time to conclude the procedure is four to five months, which is largely in compliance with the time limits set by the Regulation. In line with the Regulation, only in a few cases were oral hearings requested by the parties or ordered by the court. The interviews made clear that the parties and courts generally do not encounter serious problems in the application of the rules of the Regulation, or in the use of the standard forms. However, the question on international jurisdiction in the claim form is troublesome, the language requirements sometimes pose difficulties, and the postal service is perceived by some courts to be problematic because the courts often do not receive an acknowledgment of receipt. Another problem some courts have encountered is that the ESCP does not provide for an extra round of arguments, which is needed when a serious defence is submitted. Certain courts in these cases allow for a further written joinder and rejoinder outside the scope of the forms. Since oral hearings are generally regarded as not in compliance with the Regulation, and video conferencing is not yet used in the Netherlands, there is little chance of reaching a settlement.It is submitted that the overall design of the procedure and the standard forms are an asset to procedural justice. Generally, the way the Dutch courts handle the ESCP adds to the efficiency of the procedure. The courts take a pragmatic approach, for example, in accepting forms in languages that they understand (mostly English, German, and French). A threat to procedural justice lies in the fact that in practice the forms dispatched to the defendant are often not translated into the language of the defendant or into one that he understands. This practice contradicts the Service Regulation and jeopardises the right to be heard. Another issue concerns problems encountered in the service of documents by post; these difficulties are a general impediment to both the effectiveness and fairness of the procedure. The relatively high court fees in the Netherlands (for natural persons this is €75 for claims up to €500, and €213 for claims above this amount) are an obstacle to small claims litigation. Little is known about the actual enforcement of judgments in the ESCP, but indications are that enforcement abroad is still problematic, which makes starting a small claims procedure a risk. In order to increase and improve the use of the ESCP, the EU legislator should continue to raise awareness, raise the monetary threshold, improve the consumer jurisdiction provisions, clarify language and service requirements, regulate costs and transparency, and consider measures to improve the actual enforcement at the national level.