Tool for cross-border buyers
Every year, on March 15, the international consumer movement unites to commemorate World Consumer Rights Day. This year’s theme – Consumer Justice Now – chosen by Consumers International has led me to focus on the European Small Claims Procedure, or ESCP.
One practical issue that has always been of concern in the context of cross-border consumer claims, especially in an island State like Malta, where cross-border transactions are continuously on the increase, is the lack of effective redress for consumers in Malta when purchasing goods or services from another country.
This, especially, when the values involved are too low to justify the cost and time involved in pursuing a claim in another country.
In recent years, with the advent of novel means of distance selling, such as online shopping through the internet, this situation has become more pressing. To take an example, until some years ago, the number of online transactions, whereby consumers made their travel arrangements, including accommodation bookings, via the internet was minimal. Conversely, today, it has become the norm for many consumers travelling abroad to make their bookings online.
Malta’s membership of the European Union in 2004 meant consumers had access to a larger market where they could, in theory, buy goods and services from other EU member states at a par with other consumers in the EU.
One stumbling block, however, which, in many instances, has served to deter some consumers from cross-border purchases, is the lack of cost-effective redress mechanisms when things go wrong.
Few consumers are prepared to pursue perfectly legitimate claims before adjudicative fora in other EU member states where the claim involves a few hundred euros. This in practice meant that the scope of having an internal market where consumers from one EU state could shop in another member country seeking the best deal was not always being achieved.
In practice, consumers would, in many cases, at most complain with the business involved but ultimately if the business failed to provide redress, the consumer would stop there.
Faced with this reality, the EU decided to address matters with the objective of facilitating access to justice. The response was the making of Regulation (EC) 861/2007 establishing the ESCP.
This procedure has been in force since January 1, 2009 and applies to EU cross-border claims provided the amount in dispute does not exceed €2,000.
The rationale behind ESCP is to have a procedure that is relatively simple to use, quick and cost-effective. One of the more notable key features of ESCP is the use of written procedure whereby the application for redress and the response thereto are done in writing and an oral hearing is held only if the Court considers it necessary or else if a party makes a request for such a hearing and the court considers that there are valid grounds in acceding to the request. Furthermore, in order to facilitate the use of ESCP, the regulations include standard claim and answers forms to be used by the parties to the dispute.
Other key features include clear time frames relating to the various procedural stages of the whole process including set periods for the delivery of the judgment and a simplified process relating to the enforcement of the ruling.
One of main practical problems encountered in the use of ESCP is the matter of language whereby proceedings generally have to be made in the language of the member state where the consumer is suing. The other main issue is that few consumers seem to be aware of the existence of ESCP. This, in part, may explain why ESCP has not really taken off in many member states.
Though ESCP is not without its shortcomings, it is certainly an important step in the right direction that does offer, in many instances, a means of redress where, until some time ago, none in practice existed.
Paul Edgar Micallef is a member of the Consumers’ Association.