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.