European Procedures on Debt Collection: Nothing or Noting? Experiences and Future Prospects

Abstract

This working paper emanates from a conference on European civil procedure (Uppsala, September 2013), and was published in: B. Hess & E. Storskrubb (eds.), Oxford: Hart Publishing 2016, p. 97-121.

The paper evaluates the experiences with the European order for payment procedure and the European small claims procedure, 5 years after their introduction. It discusses general impressions regarding the application of these procedures in the Member States and extent of their potential. The discussion is illustrated by drawing on the implementation of and practical experiences with these procedures in the Netherlands based on case law and empirical research. It reviews the Commission proposal to amend the Small Claims Regulation and the potential impact on the use and functioning of this procedure.

It concludes that though experiences during the past five years have not all been positive, one should realise that any change and innovation in procedural law takes a long time to calibrate. Skepticism in relation to the European procedures, and particularly the ESCP, is understandable. However, it is a fact that the number of cross-border transactions is increasing and so are the disputes resulting from these. Most of the amendments that the Commission has proposed in relation to the ESCP − and that might be followed in the EOP revision − are realistic as to what the bottlenecks are. Nevertheless, one may argue as to how they may and can best be tackled, particularly in times of financial distress.

As regards the European debt-collection procedures, there is still a great deal to do to raise awareness. For the European policy maker and legislature, along with the individual Member States, the time has come to invest in the further consolidation, implementation, and evaluation of the instruments. Empirical evidence concerning what works and what does not is of utmost importance, especially where European idealism and economic rhetoric no longer suffice as driving forces. Member States’ judges have to adopt a reactive approach in the application of the European civil procedures to fill in the gaps between European and domestic procedure in daily practice. Further, academics have a role to play and should contribute to shape the new architecture and to connect the dots of European civil procedure.

Keywords: European civil procedure, small claims procedure, order for payment, debt collection, cross-boder litigation

JEL Classification: K33, K40, K41