European Agency for Safety & Health at Work

Survey Questionnaire

Data Collection and Impact Analysis – Certain Aspects of a Possible Revision of Council Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (‘Brussels I’)

P O Box 159

Sevenoaks

Kent TN14 5WT

United Kingdom

Introduction

CSES (Centre for Strategy and Evaluation Services) has been tasked by the European Commission (DG Justice, Freedom & Security - DG JLS) to carry out an impact assessment with view to possible revisions of the Brussels I Regulation.

This survey is a key part of the impact assessment. As a member of one of the stakeholder groups affected/potentially affected by Brussels I, we would like to ask for your input to the research. You may provide your answers in any official European language.

Questionnaire

The questionnaire is divided into five sections. You are welcome to answer some or all of the sections. Each section is subdivided into two parts, firstly asking for your views and secondly asking for factual information on the current situation. The four sections are:

Background Information (Pages 3 to 4): we ask for some basic information about your organisation to help with the analysis of survey responses.
Section 1 - Consumer Disputes (Pages 5 to 8): Brussels I regulates jurisdiction over transnational consumer disputes where the defendant is domiciled in the EU. The Commission requires an analysis of the current situation in the area of cross-border trade, with particular view to consumer interest on the one hand and business interest on the other hand. (In other words, to what extent is either party’s willingness to engage in cross border trade affected by the possibility of having to solve a commercial dispute in a foreign jurisdiction?)
Section 2 - Exequatur (Pages 9 to 1 ): Regulations 805/2004 (European Enforcement Order for Uncontested Claims), 1896/2006 (European Order for Payment Procedure), and 861/2007 (European Small Claims Procedure) make provisions for recognising and enforcing judgments that were given in another EU Member State, without having to go through the intermediate procedures (i.e. exequatur).The special review proceedings, existing under Article 19 of Regulation 805/2004, on the basis of Article 20 of Regulation 1896/2006 and Article 18 of Regulation 861/2007, come into effect, for instance, when the defendant in such case objects to the enforcement stating that he/she had not been served with the document introducing the court proceedings which led to the judgment/court order in the first place.
Section 3 - Brussels 1 and the International Legal Order (Pages 14 to 7): At the moment, when the defendant in a dispute is domiciled outside of the EU, the national law of the respective EU Member State is applied to determine whether the courts of that State have jurisdiction – not Brussels I. Differing national rules may leave EU citizens/businesses with different rights with regards to judgments given by courts in third countries. In contemplating a possible revision of Brussels I in this area, the Commission considers a number of policy options.
Section 4 - Brussels 1 and Arbitration (Pages 18 to 26): Currently, international commercial arbitration is excluded from the remit of Brussels I. Difficulties can arise from trying to coordinate arbitration and court proceedings, potentially leading to parallel proceedings and diminishing the effectiveness of arbitration agreements in Europe. In contemplating a possible revision of Brussels I in this area, there are a number of possible policy options.

Before answering any section, we ask for some basic information about your organisation. This information will remain confidential. An on-line version of the questionnaire can be found by going to the following link:

If you would like to discuss the study in more detail, please provide your contact details below and a memberof our team will be in touch.

Name:
Organisation:
Country:
Email:
Phone:

Background Information

1. What type of organisation do you represent?

Organisation
National Ministry responsible for the administration of justice
Judiciary (please specify)
Association of Court Bailiffs/Huissiers
Law firm
Law firm's National Professional Association
Bar Association/International Bar Association
Association/organisations of arbitration practitioners
Arbitration Institutes
Chamber of Commerce
Trade Association
Consumer Association/Citizen Advice Bureau
Legal Aid Agency
Debt Collection Agency
Credit Insurer
Legal Translation Agency
Business/Individual Company
Other (please specify)

2. Which industry is your organisation part of?

Industry
Agriculture, forestry and fishing
Mining and quarrying
Manufacturing
Electricity, gas, steam and air conditioning supply
Water supply, sewerage, waste management and remediation activities
Construction
Wholesale and retail trade, repair of motor vehicles and motorcycles
Accommodation and food service activities
Transportation and storage
Information and communication
Financial and insurance activities
Real estate activities
Professional, scientific and technical activities
Administrative and support service activities
Public administration and defence; compulsory social security
Education
Human health and social work activities
Arts, entertainment and recreation
Other service activities
Activities of households as employers; undifferentiated goods- and services-producing activities of households for own use
Activities of extraterritorial organisations and bodies
Other (please specify)

3. How many employees does your organisation have in Europe?

Size
1-9 employees
10-49 employees
50-249 employees
250 or more employees

4. From which MemberState(s) does your organisation operate? Multiple answers are possible.

Country
Austria / Latvia
Belgium / Lithuania
Bulgaria / Luxemburg
Cyprus / Malta
CzechRepublic / Netherlands
Denmark / Poland
Estonia / Portugal
Finland / Romania
France / Slovakia
Germany / Slovenia
Greece / Spain
Hungary / Sweden
Ireland / UK
Italy / Country outside the EU (please specify)

Consumer Disputes

1. Brussels 1 and Consumer Disputes

Brussels I regulates jurisdiction over transnational consumer disputes where the defendant is domiciled in the EU.The Commission requires an analysis of the current situation in the area of cross-border trade, with particular view to consumer interest on the one hand and business interest on the other hand. (In other words, to what extent is either party’s willingness to engage in cross border trade affected by the possibility of having to solve a commercial dispute in a foreign jurisdiction?)

Section 1.1 -Views on Existing Situation - Brussels 1 and Consumer Disputes

1: In your experience, how important are the following considerations for a company in deciding whether or not to pursue cross-border consumer disputes in court?

(1=very important and 5=not important at all)

Options / 1 / 2 / 3 / 4 / 5 / Don’t know
Company size
Type of business
Value of the claim
Financial costs associated with solving the dispute in court
Proceedings in a foreign language
Unfamiliarity with foreign legal system
Availability of alternative means of dispute resolution (e.g. mediation)

Other considerations:

2: In your experience, how do the costs of litigating in a MemberState where the party is not based compare to the costs of litigating in a MemberState where the party is based in?

Options
Much more expensive to litigate in another MemberState
A little more expensive to litigate in another MemberState
Same
A little less expensive to litigate in another MemberState
Much less expensive to litigate in another MemberState
Don't know
Difficult to say - depends which countries are involved (please explain below)

3: For companies only: What effect (if any) does the risk of litigation in another Member State in the case of a cross-border consumer dispute have on your company's attitude to cross-border trade?

Options
No effect
Some effect
A major effect
Don't know
Not applicable

4: For consumers/consumer organisations only: To what extent does the risk of litigating in another Member State in the case of a cross-border consumer dispute discourage the consumers your organisation deals with from engaging in cross-border trade (considering that a particular product or service might be cheaper or indeed only available for purchase in another Member State)?

Options
Not at all discouraged
Discouraged a bit
Entirely discouraged
Don't know
Not applicable

5: To what extent would you be inclined to engage in (more) cross-border commercial activity if, in the event of a dispute:-

(1=a lot more inclined and 5=a lot less inclined)

Options / 1 / 2 / 3 / 4 / 5 / Don’t know / Not applicable
A judgment obtained in one MemberState would be enforcable in another MemberState without additional procedures?
Instead of going to court abroad, you could make use of written/online procedures for dispute resolution?

6: In your opinion, what approach should be adopted to the question of jurisdiction for consumer disputes resulting from cross-border trade?

Section 1.2 – Data on Consumer Disputes

In this section, we ask for information related specifically to consumer contracts - the volume of (cross-border) consumer contracts, advertising budgets and practices. We appreciate you may not have precise data available but emphasise that broad estimates are just as helpful.

While anybody is welcome to answer questions in this section, it is designed primarily for companies.

Is your organisation involved in business/trade with individual consumers in another country?

Yes No

1: What type of goods/services does your company provide?

2: Can you estimate the number of consumer contracts your company has concluded in 2009? If necessary, please just provide a broad estimate. (If 2009 data are not yet available, please provide data for the most recent time period available and indicate time period.)

No / Don’t know Yes – please estimate

3: Of those consumer contracts, approximately what was the proportion of cross-border consumer contracts?

Options
None
1% - 24%
25% - 49%
50% - 74%
75% - 99%
All
Don't know

4: Approximately, what was the breakdown of cross-border consumer contracts by sales method?

Options / None / 1%-24% / 25%-49% / 50%-74% / 75%-99% / All / Don’t know
By internet
By telephone, email or fax
Via a retail outlet
If other, please specify

5: In which Member States are significant numbers of your customers based?

6: Does your company have an advertising budget?

Yes No / Don’t know

7: If yes, approximately what is the breakdown of your company's advertisement budget by media type?

Options / None / 1%-24% / 25%-49% / 50%-74% / 75%-99% / All / Don’t know
Internet
Printed press
Television
If other, please specify

8: Is your company's advertising aimed at specific consumer groups?

Yes No / Don’t know

9: Assuming your company advertises online and targets certain consumer groups online, how does your company define these consumer groups? Please rank the following factors:

(1=very important and 5=not important at all)

Options / 1 / 2 / 3 / 4 / 5 / Don’t know
Gender
Age
Nationality
Country
Language
Activity
If other, please specify

10: Assuming your company advertises online and targets specific consumer groups, what is the approximate breakdown by consumer location? (If your company does not advertise online/target specific consumer groups, please click not applicable.)

Options / None / 1%-24% / 25%-49% / 50%-74% / 75%-99% / All / Don’t know
Consumers in own EU member state
Consumers in other EU Member States
Consumers outside the EU

11: Does your company buy advertising space on internet search engines (e.g. Google) in countries other than it is based in?

No Yes – please specify

Exequatur

2. Brussels Iand Exequatur

Under Brussels I, court judgments given in one EU Member State must go through an intermediate procedure (i.e. 'exequatur') in the MemberState where recognition and enforcement is sought.In contemplating a possible revision of Brussels I in this area, the Commission considers a number of policy options. These are:

a)Maintain the exequatur procedure and take no action (status quo);

b)Maintain the exequatur procedure but reduce the grounds for refusal;

c)Maintain the exequatur procedure, reduce grounds for refusal and remove main obstacles for claimants seeking recognition and enforcement abroad;

d)Abolish exequatur procedure with necessary safeguards;

e)Abolish exequatur procedure without necessary safeguards.

2.1Views on Existing Situation - Exequatur

1: In your experience, what are some of the most common reasons for refusing an application for exequatur?

2: In your experience, are there noticable differences in granting/refusing an application for exequatur depending in which MemberState the judgment was given or in which MemberState enforcement is sought?

Options
Yes
No
Don’t know

Please explain:

3: Do you think that the defendants/debtors rights of appeal are adequately protected by the current exequatur procedures?

Options
Yes
No
Don’t know

Please explain:

4: Consistent with the objective of streamlining current exequatur procedures to reduce time and cost, what changes do you think would be helpful and/or which of the current requirements could be abolished or simplified?

2.2Data on Exequatur

Under Brussels I, with a few exceptions (e.g. Small Claims Procedure), court judgments given in one EU Member State must go through an intermediate procedure (i.e. 'exequatur') in the MemberState where recognition and enforcement is sought.

In this section, we ask for information relating specifically to exequatur proceedings, in particular, the volume and cost of exequatur proceedings. Again, we stress that if precise data cannot be provided, broad estimates are nevertheless very helpful.

Everyone is welcome to answer questions in this section, but they are most suitable for organisations with experience of seeking the enforcement of judgments abroad/granting the enforcement of foreign court judgments (exequatur proceedings).

Does your organisation have experience of seeking the enforcement of judgments abroad/granting the enforcement of foreign court judgments (exequatur proceedings)?

Yes No

1: Can you estimate the number of exequatur proceedings (commencing, ongoing and completed) your organisation has been involved in during 2009? If necessary, please just provide a rough estimate.(If 2009 data are not yet available, please provide data for the most recent time period available and indicate time period).

No / Don’t know Yes – please estimate

2: Referring to the exequatur proceedings in the above question, in which of the Member States did judgments originate most often?

2.3 Related Types of Enforcement

Regulations 805/2004 (European Enforcement Order for Uncontested Claims), 1896/2006 (European Order for Payment Procedure), and 861/2007 (European Small Claims Procedure) make provisions for recognising and enforcing judgments that were given in another EU Member State, without having to go through the intermediate procedures (i.e. exequatur).

The special review proceedings, existing under Article 19 of Regulation 805/2004, on the basis of Article 20 of Regulation 1896/2006 and Article 18 of Regulation 861/2007, come into effect, for instance, when the defendant in such case objects to the enforcement stating that he/she had not been served with the document introducing the court proceedings which led to the judgment/court order in the first place.

In this section we would like to collect information on the volume and costs of these special review proceedings.Everyone is welcome to answer questions in this section, but they are most suitable for organisations that have experience with or are aware of at least one of the three abovementioned regulations.

Does your organisation have experience with/is aware of at least one of the following regulations:

(1)Regulation 805/2004 (European Enforcement Order for Uncontested Claims)

(2)Regulation 1896/2006 (European Order for Payment Procedure)

(3)Regulation 861/2007 (European Small Claims Procedure)

Yes No

1: Has your organisation ever been involved in the cross-border enforcement of a judicial decision/court order without having to go through intermediate proceedings (exequatur)on the basis of Regulations 805/2004, 1896/2006, or 861/2007?

No / Don’t know Yes

2: If yes, has a defendant ever objected to the enforcement stating that he/she had not been served with the document introducing the court proceedings which led to the judgment/court order (see Article 19 of Regulation 805/2004 etc. - hereafter referred to as the 'special review proceedings')?

Yes No Don’t know

3: In comparison to an application for exequatur, on average how expensive and time-consuming is the special review procedure?

(1=much more and 5=much less)

Options / 1 / 2 / 3 / 4 / 5 / Don’t know
Expensive
Time-consuming

4: In percentage terms, can you provide a breakdown of the costs associated with a typical case involving the special review procedure?

The costs of the special proceedings are limited to the extra-ordinary remedy launched by the defendant and that it does not include any new proceedings on the merits of the case whenever the case is re-opened on the merits.

Options
(1) Producing the required documentation
(2) Making the application in the court of the MemberState concerned
(3) Serving the documents
(4) Translations
(5) Other costs (please specify)
Total / 100%

3: Referring to the exequatur proceedings mentioned above, in which of the Member States was recognition and enforcement sought most often?

4: Approximately what proportion of exequatur applications that your organisation has been involved with during 2009 were granted? If necessary, please just provide a rough estimate.(If 2009 data are not yet available, please provide data for the most recent time period available and indicate time period.)

Options
None
1% - 24%
25% - 49%
50% - 74%
75% - 99%
All
Don't know

Can you name some reasons for refusal of exequatur application?

5: In your experience, how long does it usually take to obtain an order for exequator (from initiating the procedure until the decision is made)?

Options
Up to a week
1 - 2 weeks
2 - 3 weeks
3 - 4 weeks
1 - 2 months
2 - 3 months
3 - 4 months
Over 4 months
Don't know

6: Are there significant differences between Member States in terms of how long it takes from initiating the exequatur procedure until the decision is made?