Service of Documents
| Author | Marie-Odile Baur |
| Profession | Magistrat |
| Pages | 162-189 |
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Marie-Odile Baur1, who is a magistrat, worked for a number of years in the European and International Affairs Department of the French Justice Ministry. While there, she prepared the draft Convention on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil Commercial Matters. She took part in the Council negotiations for the adoption of the convention and subsequently for its conversion into a Community regulation.
- Ms Baur is a national expert currently seconded to the Directorate-General for Justice and Home Affairs of the European Commission, with responsibility for draft Community instruments on civil law matters.
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As a foundational stage in the creation of a European judicial area, the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 2 already required that a court seised of a 'Community' dispute should stay the proceedings so long as it was not shown that the defendant had been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, or that all necessary steps had been taken to this end. It also provided that the recognition and enforcement of a judgment could be refused, where it was given in default of appearance, if the defendant was not fully served with the document which instituted the proceedings in sufficient time for him to arrange for his defence.
The smooth functioning of the convention presupposes due respect for the rights of the defence, which is a fundamental principle of the law of all Member States of the European Community.
In practice, failures regularly occurred in the operation of the arrangements for transmitting judicial documents from one Member State to another for the purposes of service, and preliminary discussions on this matter started in the early 1990s.
At the time, civil judicial documents were transmitted between Member States in accordance with several Hague conventions, particularly the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, to which most of the Member States were party, or under various bilateral agreements.
There was a wide variety of procedures for transmitting documents: in addition to the six methods laid down in the 1965 Hague Convention, there were those in the bilateral agreements.
This inevitably caused uncertainty among practitioners over the choice to be made between the various possibilities open to them.
In addition while some agreements allowed direct transmission between courts in different Member States, it was sometimes found that the competentPage 163 central administrations had not put in place any reliable means whereby those involved locally could be made aware of the contact details of their counterparts abroad.
As to the internal arrangements applied by some Member States for transmitting documents to another Member State, these sometimes involved up to three intermediate steps between the drafter of the document and the office responsible for sending it abroad. This naturally led to considerable delays, so much so that the period elapsing between the date a document was sent and the date on which the same authority received the certificate of service could extend to several years, even though the court seised and the domicile of the addressee of the document were sometimes no more than a few miles apart.
It was sometimes found that documents were being translated, as stipulated by the State addressed, even though the addressee possessed the nationality or had a perfect command of the language of the State of transmission. On the other hand, some documents transmitted without a translation were rejected when the addressee was well able to understand them - all the stages downstream of the sender having been gone through - on the grounds that the requirements of the State addressed had not been fulfilled.
The slightest mistake in the formalities for transmitting a document meant it would be returned to the sending authority, when a simple request for correction or additional information would have enabled the document to be served without delay. But no direct means of communication were made available to the locally competent authorities in the various Member States.
It is not hard to see that such malfunctions were hindering the smooth operation of the procedures and that the numerous problems encountered needed to be addressed.
Having been informed of these problems, the Council of Justice Ministers decided in October 1993 to charge a working party with drawing up an instrument to improve methods of transmitting documents between Member States.
Shortly afterwards, the Netherlands Presidency put forward draft adjustments to Article IV of the protocol to the 1968 Brussels Convention whereby, unless opposed by the State of destination, documents could be transmitted directly between public officers of the States concerned.
The Netherlands draft provided for the drawing-up of a list of public officers or other authorities who were empowered to send each other documents.
Then, at the beginning of 1995, the French Presidency presented a draft convention based on a few fundamental points: direct transmission of documentsPage 164 between Member States' authorities competent for receiving them from applicants and for forwarding them to the addressees; establishment of an overall time limit for completing the process of transmitting and serving documents; introduction of modern methods of transmission; and a flexible and pragmatic solution to the problem of translations.
After two years of negotiations in the Council, the following were adopted on 26 May 1997: the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil or Commercial Matters 3, the protocol on the interpretation of that convention by the Court of Justice of the European Communities 4, and the explanatory reports concerning these two texts 5.
Article 24 of the convention provided for entry into force after ratification by all Member States but allowed Member States to declare the convention applicable among themselves before that time if they so wished.
However, the Amsterdam Treaty (Article 2 of which resulted in Article 65 (a) of the EC Treaty on improving and simplifying the system for cross-border service of judicial and extrajudicial documents) came into force before the convention and its protocol were ratified by the Member States. Shortly afterwards the Commission submitted, pursuant to Article 67 of the Treaty, a draft Council directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which incorporated, with the necessary adjustments, the content of the convention.
Very soon, at the request of a large majority of Member States, the discussions moved towards the preparation of a regulation, and eventually, on 29 May 2000, the Council adopted Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters 6.
Thus, more than six years elapsed between the start of negotiations on the draft convention put forward by France and the entry into force of the new instrument. This is obviously a long time for what was simply a matter of drawing up and implementing practical arrangements for sending documents from one Member State to another. At least the fact that the convention was converted into a regulation meant it could come into force simultaneously in all Member States within a reasonable period of time, allowing for the practical steps that had to be taken to enable the new system to operate.
In fact, the preparation of such an instrument proved to be an especially delicate matter, since the rights of the defence have to be safeguarded in various ways and at different stages in the process of sending documents from one Member State to another, and rules of procedure - like methods of service - differ considerably from one Member State to another.
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The negotiators were therefore at pains to preserve the rights of the parties involved in the service of documents while at the same time ensuring that the instrument was effective.
While it is important that the service and hence the transmission of documents - where the parties reside in the territory of different Member States - should be carried out as swiftly as possible, it is also necessary that the addressees should be able to acquaint themselves without difficulty with the documents that are sent to them. However, the translating of such documents is always an expensive process which is liable to hold up the proceedings and is not necessary in every case.
For example, where the addressee is served, in the country where he is resident, with a document from his State of origin, a translation is obviously superfluous. The same is true in the case of a dispute between two companies that regularly conduct their business in the language of the court applied to.
The 1965 Hague Convention allowed the contracting States to require documents to be translated into the official language or languages of the country concerned where service had to be effected by a method prescribed by the local law. A large number of contracting States made declarations in this connection that were sometimes hard to interpret and were consequently the cause of error.
The regulation provides for a flexible approach that allows the applicant to choose whether or not to have a translation made of the documents to be transmitted. The addressee, however, can refuse to accept them unless they are drawn up or translated in the local official language or a language of the Member State of transmission which he understands.
If the addressee of the document notifies the receiving agency that he refuses to accept the document, it must be immediately returned to the transmitting agency with a request for a translation.
In the event of a dispute on this point, it is for the court hearing the original case to assess whether or not the refusal was justified and to draw any relevant conclusions as to the regularity of the service. This will be an assessment based on the facts, and no longer a formal check carried out pursuant to the law of the State addressed or the transmitting State.
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In case of doubt concerning the addressee's ability to understand a document drawn up in the language of the transmitting State, the applicant, if he wishes to guard against any problems, will, of course, have every interest in ensuring that the documents are translated into the official language of the place of service before they are transmitted.
He must in any case advance the costs of translation.
However, if he is certain that refusal by the addressee of untranslated documents would be unjustified under the regulation, he will be able to avoid, at no risk, the extra costs and delays involved in having a translation made.
In the case of international service of a document, the need to transmit the document from one State to another means there is sometimes a considerable time lag between its being handed in to the competent authority of the transmitting State and actually being delivered to the addressee by the authority of the State addressed.
This raises the problem of determining the date on which the international service produces its effects - as regards, for example, an interruption of the period of limitation or the point at which interest becomes payable.
The law in some Member States stipulates that the operative date is the date on which the document is handed to the addressee. This system is unfavourable to the applicant, who has no control over the process of transmission and service abroad and may suffer significant administrative delays.
Under other States' law, only the date on which the formalities are completed in the State of transmission matters, in which case it is the addressee who might be placed in a difficult position as proceedings may be brought against him abroad, or a time limit within which to appeal may begin to run, when he has not even been informed, or is informed only very late in the day.
The regulation contains a solution to some of the problems resulting from the coexistence of these two systems and endeavours to protect the interests of both parties. Article 9(1) provides that 'the date of service of a document ... shall be the date on which it is served in accordance with the law of the Member State addressed' and Article 9(2) stipulates that 'where a document shall be served within a particular period in the context of proceedings to be brought or pending in the Member State of origin, the date to be taken into account with respect to the applicant shall be that fixed by the law of that Member State'.
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Some Member States opposed this solution, as they considered these provisions inadequate, in particular because they do not ensure that proceedings pending before their courts will proceed normally where service abroad is too slow, despite the entry into force of the regulation.
The convention adopted in 1997 provided that the Member States could simply state that they would not apply these provisions. The regulation is more restrictive: in Article 9(3), a derogation is allowed for a period of five years, which may be renewed. States wishing to avail themselves of that derogation must cite appropriate reasons and, if they want a renewal of the derogation, explain the circumstances justifying their position.
These provisions clearly leave States that do not wish to apply Article 9 some room for manoeuvre, but, in so far as they require them to justify their refusal to apply rules implemented in other Member States, they encourage them to reconsider their position.
Some Member States did, in fact, declare that they would not apply the first two paragraphs of the article and others that they would derogate only from paragraph 2. Some, on the other hand, announced that they intended to apply both paragraphs.
If the procedure put in place by the regulation produces the expected results, international service of documents should be carried out swiftly.
The aim as set out in Article 7(2) is for service to be effected within a maximum of one month of the date of receipt of the act by the receiving agency.
However, delays may occur, not because information regarding the addressee's address is lacking, since Article 1 states that the regulation does not apply in such cases, but, for instance, because the addressee is momentarily absent, or certain documents have been lost.
The regulation therefore contains provisions intended to protect a defendant upon whom it has not been possible to serve a summons to appear in court, or against whom a judgment has been given without his knowledge. These provisions were taken from the 1965 Hague Convention, with the necessary adjustments.
Article 19 of the regulation therefore provides that judgment shall not be given if it has not been established that the summons has been served on the defendant in accordance with the law on service of documents within thePage 168 State addressed or using another method laid down by the regulation. Member States may, however, state that their judges may give judgment upon expiry of a minimum period of six months, if the document was transmitted in accordance with the regulation and if no certificate has been received despite efforts made to obtain it through the competent authorities of the State addressed.
In this context, it should be pointed out that the receiving agency must immediately inform the transmitting agency of the receipt of a document and then of any problems arising with it, or of the fact that it is to be forwarded to another agency, and, lastly, within one month at the latest, of any reasons which prevented it from effecting service. In no circumstances, therefore, should a transmitting agency be left without news of a document sent to a receiving agency. Also, a transmitting agency may always approach the central body provided for in Article 3 of the regulation, which is responsible for seeking solutions to any difficulties which may arise. In theory then, Article 15 of the regulation should be found to apply only in very rare cases.
A large number of Member States declared that their judges could give judgments if the conditions laid down in these provisions were met. Most set the maximum period for a stay of proceedings at six months; some, however, have refused to allow their judges to apply these provisions.
Article 19 also provides that the judge may relieve a defendant acting in good faith, who has disclosed a prima facie defence to the action on the merits, from the effects of the expiry of the time for appeal from the judgment. In the interests of legal certainty, in order to avoid judgments being challenged belatedly, the regulation also provides that Member States may declare the application for relief inadmissible after expiry of a period of not less than one year following the date of the judgment.
Several Member States declared that this period could not exceed one year, while another set it at three years. Some States wished to leave their judges to decide how long it should be.
Lastly, like the 1965 Hague Convention, the regulation states that the provisions on relief from the effects of expiry of the time for appeal do not apply in cases concerning status or capacity of persons. It did not seem reasonable that divorce judgments, which might have been followed by remarriage, for example, could be called into question because of the failure of the defendant to appear.
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One of the main planks of the new act appears in Article 2 of the regulation. This provides that each Member State is to designate the public officers, authorities or other persons competent for the receipt of judicial or extrajudicial documents from another Member State, or for their transmission. However, Member States remain free to entrust the tasks of these transmitting or receiving 'agencies' to central authorities for a period of five years, which may be renewed. Some of them were, in fact, unable to adopt the necessary measures for the intended decentralisation immediately.
The decentralisation advocated by this article is intended to avoid having a succession of steps to be completed within a particular State for documents coming from abroad or to be sent abroad for the purpose of service.
This is already provided for under various bilateral or regional agreements between Member States, and clearly enables documents to be transmitted rapidly. It also eliminates pointless tasks for the authorities, which no longer scrutinise the content of documents, in the past regarded as a possible threat to the sovereignty of the State, and are now reduced to the role of conveyor belt.
Several other means of transmitting documents, taken from the 1965 Hague Convention, were included.
Direct service by post, regularly used by certain Member States, is obviously the swiftest and simplest. However, it is not risk-free, in that it is not certain that the letter sent will actually be received by the addressee, nor that its content will be properly understood by him. Article 14 of the regulation therefore provides that Member States may specify the conditions under which they will accept this method of service. A very large majority of them require that letters be sent by registered post with proof of delivery. Some also require documents to be translated.
Article 15 of the regulation also enables applicants to approach the competent persons directly to effect service of foreign documents. In actual fact, the direct receipt of documents by the persons responsible for serving them is incompatible with the organisation and internal procedures of certain Member States, and they have availed themselves of the option offered by the regulation of opposing this system.
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Lastly, the possibility of transmission of documents or direct service by diplomatic or consular agents already provided for in the 1965 Hague Convention, subject to fulfilment of certain conditions, was retained. However, it will probably be used only very rarely.
When work began on the drafting of the convention, the transmission of judicial documents by fax, let alone e-mail, was unknown or even prohibited in a large number of Member States. However, the negotiators had the foresight to realise that developments in communications technology would, sooner or later, affect the law and they decided to insert flexible provisions on the subject in the text of the future instrument. Article 4 of the regulation thus provides that 'the transmission of documents, requests, confirmations, receipts, certificates and any other papers between transmitting agencies and receiving agencies may be carried out by any appropriate means', thereby ensuring that the most up-to-date means of communication can be used, as well as any subsequent technical innovations.
Article 4(5) anticipates the consequences of recourse to modern methods of communication, as it no longer requires documents to be transmitted in duplicate, but merely makes it optional for the transmitting agency.
None of the regulation's provisions sets the receiving agencies a mandatory deadline for completing the service of documents emanating from another Member State. The negotiators felt that service was subject to too many uncertainties for it to be possible to lay down mandatory rules in that respect: the addressee may have changed address at the time service is attempted, have gone away for a fairly long period or even have tried to avoid being contacted in order to evade the proceedings against him.
Receiving agencies are, however, advised to act swiftly in several of the regulation's provisions. Under Article 6, they have to send the transmitting agencies an acknowledgement of receipt 'as soon as possible and in any event within seven days', contact them if problems arise 'by the swiftest possible means', return the documents transmitted 'on receipt' if service is not feasible, or forward them to the receiving agency having territorial jurisdiction, if they have been misdirected, rather than returning them to the transmitting agency.
Article 7 stipulates that '[a]ll steps required for service of the document shall be effected as soon as possible' and that 'if it has not been possible to effect service within one month of receipt, the receiving agency shall inform the transmitting agency by means of the certificate' annexed to the regulation.
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These recommendations serve to draw the receiving agencies' attention to their responsibilities. If they are not followed, transmitting agencies may be justified in requesting clarification.
A mandatory form is annexed to the regulation, as in the case of the 1965 Hague Convention.This form, however, contains a number of original features. First of all, it includes several sections designed to facilitate the transmission of all necessary information between transmitting agencies and receiving agencies, whatever operation they are performing.
The first section covers, of course, the request for service of documents and provides all the necessary information regarding the agencies concerned, the applicant, the addressee, the requested method of service and the document itself.
Then come forms for acknowledgement of receipt, notice of return of request where service has proved impossible, notice of retransmission of request in the event of an error over the territorial jurisdiction of the receiving agency to which the document was addressed, notice of receipt by the agency having territorial jurisdiction, and, finally, a form for certifying the service or non-service of documents.
Furthermore, Article 2(4) of the regulation stipulates that each Member State must indicate the languages that may be used for completion of the form. Even if they have several official languages, Member States must select at least one foreign language.
In addition, the various items of information required, together, where appropriate, with all the possible options, are set out in the form and numbered so that even if they do not understand a foreign language the transmitting or receiving agencies can in principle comprehend virtually all the information made available to them.
Finally, Articles 17 and 18 of the regulation stipulate inter alia that the European Commission, assisted by a committee, shall update the form or make any technical amendments necessary.
To facilitate communication between transmitting and receiving agencies, the Commission is also required, under the same conditions, to draw up a 'glossary in the official languages of the European Union of documents which mayPage 172 be served' under the regulation, along with a manual 7 containing the information which must be provided by Member States regarding their receiving agencies, the means of receipt at their disposal and the languages which may be used to complete the forms addressed to them.
The glossary and manual drawn up may be consulted at the following address: http://europa.eu.int/comm/justice_home/fsj/civil/documents/fsj_civil_1348_en.htm#version%20fr.
In addition to updates of the practical aspects of operating the document transmission system, the regulation provides for its implementation to be monitored, with particular reference to certain provisions adopted for a specific period.
Under Article 24, starting on 1 June 2004, and every five years thereafter, the Commission must present to the European Parliament, the Council and the European Economic and Social Committee a report on application of the regulation.
The Commission may also make proposals for adaptation of the regulation.
As already stated, special attention must be paid to the effectiveness of the transmitting agencies designated by the Member States and to the rules relating to dates of service. The Commission's findings may lead it to propose application of the general system to all Member States, including those which preferred to waive application of those provisions.
To ensure that it has the information it needs, the Commission has had a study made of the number of dossiers handled by Member States and the operation of the system.
It should thus be in a position to present a full report and make informed proposals if need be.
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Given the regulation's relatively recent entry into force, it is impossible at this stage to assess its real impact.
The subject was raised at the first meeting of 'contact points' of the European Judicial Network in civil and commercial matters 8, held on 13 February 2003, and some speakers mentioned a few problems, mainly teething troubles which should gradually disappear. The European Commission also organised a public hearing on the operation of the system on 17 July 2003, during which similar comments were made.
The report currently being prepared by the European Commission should, of course, help to highlight any malfunctions or imperfections in the system and work out ways of remedying them.
Clearly, however, the introduction of a genuinely effective system for transmitting documents in over 20 Member States whose methods of serving documents vary considerably and whose rules of procedure are very diverse represents a real challenge.
It is obviously essential to improve technology and to simplify structures. But there have also been calls for procedures for the service of documents in the Member States to be harmonised. The first step has already been taken with Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses 9, Article 11(4) of which brings consistency to the different systems in place in terms of the date on which a court is deemed to have been seised.
Article 65 of the Treaty establishing the European Community moreover proposes not only improving and simplifying the system for cross-border service of judicial and extrajudicial documents but also eliminating 'obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States'.
To that end, the programme of measures on mutual recognition 10 stipulates that 'in order to increase the certainty, efficiency and rapidity of service of legal documents, which is clearly one of the foundations of mutual trust between national legal systems, consideration will be given to harmonising the applicable rules or setting minimum standards'.
This is, without question, a huge task for the Community legislator.
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on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters
Having regard to the Treaty establishing the European Community, and in particular Article 61 (c) and Article 67(1) thereof,
Having regard to the proposal from the Commission 11,
Having regard to the opinion of the European Parliament 12,
Having regard to the opinion of the Economic and Social Committee 13,
Whereas:
(1) The Union has set itself the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured. To establish such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market.
(2) The proper functioning of the internal market entails the need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States.
(3) This is a subject now falling within the ambit of Article 6 5 of the Treaty.
(4) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. This Regulation does not go beyond what is necessary to achieve those objectives.
(5) The Council, by an Act dated 26 May 199714, drew up a Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters and recommended it for adoption by the Member States in accordance with their respective constitutional rules. That Convention has not entered into force. Continuity in the results of the negotiations for conclusion of the Convention should be ensured. The main content of this Regulation is substantially taken over from it.
(6) Efficiency and speed in judicial procedures in civil matters means that the transmission of judicial and extrajudicial documents is to be made direct and by rapid means between local bodies designated by the Member States. However, the Member States may indicate their intention of designating only one transmitting or receiving agency or one agency to perform both functions for a period of five years. This designation may, however, be renewed every five years.
(7) Speed in transmission warrants the use of all appropriate means, provided that certain conditions as to the legibility and reliability of the document received are observed. Security in transmission requires that the document to be transmitted be accompanied by a pre-printed form, to be completed in the language of the place where service is to be effected, or in another language accepted by the Member State in question.
(8) To secure the effectiveness of this Regulation, the possibility of refusing service of documents is confined to exceptional situations.
(9) Speed of transmission warrants documents being served within days of reception of the document. However, if service has not been effected after one month has elapsed, the receiving agency should inform the transmitting agency. The expiry of this period should not imply that the request be returned to the transmitting agency where it is clear that service is feasible within a reasonable period.
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(10) For the protection of the addressee's interests, service should be effected in the official language or one of the official languages of the place where it is to be effected or in another language of the originating Member State which the addressee understands.
(11) Given the differences between the Member States as regards their rules of procedure, the material date for the purposes of service varies from one Member State to another. Having regard to such situations and the possible difficulties that may arise, this Regulation should provide for a system where it is the law of the receiving Member State which determines the date of service. However, if the relevant documents in the context of proceedings to be brought or pending in the Member State of origin are to be served within a specified period, the date to be taken into consideration with respect to the applicant shall be that determined according to the law of the Member State of origin. A Member State is, however, authorised to derogate from the aforementioned provisions for a transitional period of five years, for appropriate reasons. Such a derogation may be renewed by a Member State at five-year intervals due to reasons related to its legal system.
(12) This Regulation prevails over the provisions contained in bilateral or multilateral agreements or arrangements having the same scope, concluded by the Member States, and in particular the Protocol annexed to the Brussels Convention of 27 September 196815 and the Hague Convention of 15 November 1965 in relations between the Member States party thereto. This Regulation does not preclude Member States from maintaining or concluding agreements or arrangements to expedite or simplify the transmission of documents, provided that they are compatible with the Regulation.
(13) The information transmitted pursuant to this Regulation should enjoy suitable protection. This matter falls within the scope of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data16, and of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector 17.
(14) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission 18.
(15) These measures also include drawing up and updating the manual using appropriate modern means.
(16) No later than three years after the date of entry into force of this Regulation, the Commission should review its application and propose such amendments as may appear necessary.
(17) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, have given notice of their wish to take part in the adoption and application of this Regulation.
(18) Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, is not participating in the adoption of this Regulation, and is therefore not bound by it nor subject to its application,
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This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there.
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This Regulation shall not apply where the address of the person to be served with the document is not known.
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Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as 'transmitting agencies', competent for the transmission of judicial or extrajudicial documents to be served in another Member State.
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Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as 'receiving agencies', competent for the receipt of judicial or extrajudicial documents from another Member State.
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A Member State may designate one transmitting agency and one receiving agency or one agency to perform both functions. A federal State, a State in which several legal systems apply or a State with autonomous territorial units shall be free to designate more than one such agency. The designation shall have effect for a period of five years and may be renewed at five-year intervals.
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Each Member State shall provide the Commission with the following information:
(a) the names and addresses of the receiving agencies referred to in paragraphs 2 and 3;
(b) the geographical areas in which they have jurisdiction;
(c) the means of receipt of documents available to them; and
(d) the languages that may be used for the completion of the standard form in the Annex.
Member States shall notify the Commission of any subsequent modification of such information.
Each Member State shall designate a central body responsible for:
(a) supplying information to the transmitting agencies;
(b) seeking solutions to any difficulties which may arise during transmission of documents for service;
(c) forwarding, in exceptional cases, at the request of a transmitting agency, a request for service to the competent receiving agency.
A federal State, a State in which several legal systems apply or a State with autonomous territorial units shall be free to designate more than one central body.
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Judicial documents shall be transmitted directly and as soon as possible between the agencies designated on the basis of Article 2.
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The transmission of documents, requests, confirmations, receipts, certificates and any other papers between transmitting agencies and receiving agencies may be carried out by any appropriate means, provided that the content of the document received is true and faithful to that of the document forwarded and that all information in it is easily legible.
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The document to be transmitted shall be accompanied by a request drawn up using the standard form in the Annex. The form shall be completed in the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected, or in another language which that Member State has indicated it can accept. Each Member State shall indicate the official language or languages of the European Union other than its own which is or are acceptable to it for completion of the form.
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The documents and all papers that are transmitted shall be exempted from legalisation or any equivalent formality.
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When the transmitting agency wishes a copy of the document to be returned together with the certificate referred to in Article 10, it shall send the document in duplicate.
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The applicant shall be advised by the transmitting agency to which he or she forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.
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The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs.
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On receipt of a document, a receiving agency shall, as soon as possible and in any event within seven days of receipt, send a receipt to the transmitting agency by the swiftest possible means of transmission using the standard form in the Annex.
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Where the request for service cannot be fulfilled on the basis of the information or documents transmitted, the receiving agency shall contact the transmitting agency by the swiftest possible means in order to secure the missing information or documents.
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If the request for service is manifestly outside the scope of this Regulation or if non-compliance with the formal conditions required makes service impossible, the request and the documents transmitted shall be returned, on receipt, to the transmitting agency, together with the notice of return in the standard form in the Annex.
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A receiving agency receiving a document for service but not having territorial jurisdiction to serve it shall forward it, as well as the request, to the receiving agency having territorial jurisdiction in the same Member State if the request complies with the conditions laid down in Article 4(3) and shall inform the transmitting agency accordingly, using the standard form in the Annex. That receiving agency shall inform the transmitting agency when it receives the document, in the manner provided for in paragraph 1.
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The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular form requested by the transmitting agency, unless such a method is incompatible with the law of that Member State.
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All steps required for service of the document shall be effected as soon as possible. In any event, if it has not been possible to effect service within one month of receipt, the receiving agency shall inform the transmitting agency by means of the certificate in the standard form in the Annex, which shall be drawn up under the conditions referred to in Article 10(2). The period shall be calculated in accordance with the law of the Member State addressed.
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The receiving agency shall inform the addressee that he or she may refuse to accept the document to be served if it is in a language other than either of the following languages:
(a) the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected; or
(b) a language of the Member State of transmission which the addressee understands.
-
Where the receiving agency is informed that the addressee refuses to accept the document in accordance with paragraph 1, it shall immediately inform the transmitting agency by means of the certificate provided for in Article 10 and return the request and the documents of which a translation is requested.
-
Without prejudice to Article 8, the date of service of a document pursuant to Article 7 shall be the date on which it is served in accordance with the law of the Member State addressed.
-
However, where a document shall be served within a particular period in the context of proceedings to be brought or pending in the Member State of origin, the date to be taken into account with respect to the applicant shall be that fixed by the law of that Member State.
-
A Member State shall be authorised to derogate from the provisions of paragraphs 1 and 2 for a transitional period of five years, for appropriate reasons.
This transitional period may be renewed by a Member State at five-yearly intervals due to reasons related to its legal system. That Member State shall inform the Commission of the content of such a derogation and the circumstances of the case.
-
When the formalities concerning the service of the document have been completed, a certificate of completion of those formalities shall be drawn up in the standard form in the Annex and addressed to the transmitting agency, together with, where Article 4(5) applies, a copy of the document served.
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The certificate shall be completed in the official language or one of the official languages of the Member State of origin or in another language which the Member State of origin has indicated that it can accept. Each Member State shall indicate the official language or languages of the European Union other than its own which is or are acceptable to it for completion of the form.
-
The service of judicial documents coming from a Member State shall not give rise to any payment or reimbursement of taxes or costs for services rendered by the Member State addressed.
-
The applicant shall pay or reimburse the costs occasioned by:
(a) the employment of a judicial officer or of a person competent under the law of the Member State addressed;
(b) the use of a particular method of service.
Each Member State shall be free, in exceptional circumstances, to use consular or diplomatic channels to forward judicial documents, for the purpose of service, to those agencies of another Member State which are designated pursuant to Article 2 or 3.
-
Each Member State shall be free to effect service of judicial documents directly by post to persons residing in another Member State.
-
Any Member State may specify, in accordance with Article 23(1), the conditions under which it will accept service of judicial documents by post.
-
Each Member State shall be free to effect service of judicial documents on persons residing in another Member State, without application of any compulsion, directly through its diplomatic or consular agents.
-
Any Member State may make it known, in accordance with Article 23(1), that it is opposed to such service within its territory, unless the documents are to be served on nationals of the Member State in which the documents originate.
-
This Regulation shall not interfere with the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the Member State addressed.
-
Any Member State may make it known, in accordance with Article 23(1), that it is opposed to the service of judicial documents in its territory pursuant to paragraph 1.
Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation.
The measures necessary for the implementation of this Regulation relating to the matters referred to below shall be adopted in accordance with the advisory procedure referred to in Article 18(2):
(a) drawing up and annually updating a manual containing the information provided by Member States in accordance with Article 2(4);
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(b) drawing up a glossary in the official languages of the European Union of documents which may be served under this Regulation;
(c) updating or making technical amendments to the standard form set out in the Annex.
-
The Commission shall be assisted by a committee.
-
Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.
-
The Committee shall adopt its rules of procedure.
-
Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service, under the provisions of this Regulation, and the defendant has not appeared, judgment shall not be given until it is established that:
(a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or
(b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation;
and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.
-
Each Member State shall be free to make it known, in accordance with Article 23(1), that the judge, notwithstanding the provisions of paragraph 1, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled:
(a) the document was transmitted by one of the methods provided for in this Regulation;
(b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document;
(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed.
-
Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures.
-
When a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service, under the provisions of this Regulation, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled:
(a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; and
(b) the defendant has disclosed a prima facie defence to the action on the merits.
An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.
Each Member State may make it known, in accordance with Article 23(1), that such application will not be entertained if it is filed after the expiration of a time to be stated by it in that communication, but which shall in no case be less than one year following the date of the judgment.
-
Paragraph 4 shall not apply to judgments concerning status or capacity of persons.
-
This Regulation shall, in relation to matters to which it applies, prevail over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the Member States, and in particular Article IV of the Protocol to the Brussels Convention of 1968 and the Hague Convention of 15 November 1965.
-
This Regulation shall not preclude individual Member States from maintaining or concluding agreements or arrangements to expedite further or simplify the transmission of documents, provided that they are compatible with this Regulation.
-
Member States shall send to the Commission:
(a) a copy of the agreements or arrangements referred to in paragraph 2 concluded between the Member States as well as drafts of such agreements or arrangements which they intend to adopt;
and
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(b) any denunciation of, or amendments to, these agreements or arrangements.
This Regulation shall not affect the application of Article 23 of the Convention on Civil Procedure of 17 July 1905, Article 24 of the Convention on Civil Procedure of 1 March 19 54 or Article 13 of the Convention on International Access to Justice of 25 October 1980 between the Member States Parties to these Conventions.
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Information, including in particular personal data, transmitted under this Regulation shall be used by the receiving agency only for the purpose for which it was transmitted.
-
Receiving agencies shall ensure the confidentiality of such information, in accordance with their national law.
-
Paragraphs 1 and 2 shall not affect national laws enabling data subjects to be informed of the use made of information transmitted under this Regulation.
-
This Regulation shall be without prejudice to Directives 95/46/EC and 97/66/EC.
-
Member States shall communicate to the Commission the information referred to in Articles 2, 3, 4, 9, 10, 13, 14, 15, 17(a)and 19.
-
The Commission shall publish in the Official Journal of the European Communities the information referred to in paragraph 1.
No later than 1 June 2004, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Regulation, paying special attention to the effectiveness of the bodies designated pursuant to Article 2 and to the practical application of point (c) of Article 3 and Article 9. The report shall be accompanied if need be by proposals for adaptations of this Regulation in line with the evolution of notification systems.
This Regulation shall enter into force on 31 May 2001.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.
Done at Brussels, 29 May 2000.
For the Council
The President
-
COSTA
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REQUEST FOR SERVICE OF DOCUMENTS
(Article 4(3) of Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters 19)
Reference No: ....
-
TRANSMITTING AGENCY
1.1. Identity:
1.2. Address:
1.2.1. Street and number/PO box:
1.2.2. Place and code:
1.2.3. Country:
1.3. Tel:
1.4. Fax*:
1.5. E-mail *
-
RECEIVING AGENCY
2.1. Identity:
2.2. Address:
2.2.1. Street and number/PO box:
2.2.2. Place and code:
2.2.3. Country:
2.3. Tel:
2.4. Fax*:
2.5. E-mail*:
Page 182
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APPLICANT
3.1. Identity:
3.2. Address:
3.2.1. Street and number/PO box:
3.2.2. Place and code:
3.2.3. Country:
3.3. Tel*:
3.4. Fax*:
3.5. E-mail*:
-
ADDRESSEE
4.1. Identity:
4.2. Address:
4.2.1. Street and number/PO box:
4.2.2. Place and code:
4.2.3. Country:
4.3. Tel*:
4.4. Fax*:
4.5. E-mail*:
4.6. Identification number/social security number/organisation number/or equivalent *:
-
METHOD OF SERVICE
5.1. In accordance with the law of the Member State addressed
5.2. By the following particular method:
5.2.1. If this method is incompatible with the law of the Member State addressed, the document(s) should be served in accordance with the law:
5.2.1.1. yes
5.2.1.2. no
Page 183
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DOCUMENT TO BE SERVED
(a) 6.1. Nature of the document
6.1.1. judicial
6.1.1.1. writ of summons
6.1.1.2. judgment
6.1.1.3. appeal
6.1.1.4. other
6.1.2. extrajudicial
(b) 6.2. Date or time limit stated in the document *:
(c) 6.3. Language of document:
6.3.1. original DE, EN, DK, EL, FI, FR, GR, IT, NL, PT, SV, others:
6.3.2. translation * DE, EN, DK, ES, FI, FR, EL, IT, NL, PT, SV, others:
6.4. Number of enclosures:
-
A COPY OF DOCUMENT TO BE RETURNED WITH THE CERTIFICATE OF SERVICE (Article 4(5) of the Regulation)
7.1. Yes (in this case send two copies of the document to be served)
7.2. No
-
You are required by Article 7(2) of the Regulation to effect all steps required for service of the document as soon as possible. In any event, if it is not possible for you to effect service within one month of receipt, you must inform this agency by means of the certificate provided for in point 13.
-
If you cannot fulfil this request for service on the basis of the information or documents transmitted, you are required by Article 6(2) of the Regulation to contact this agency by the swiftest possible means in order to secure the missing information or document.
Done at:
Date:
Signature and/or stamp:
Page 184
Reference No of the receiving agency:
ACKNOWLEDGEMENT OF RECEIPT (Article 6(1) of Council Regulation (EC) No 1348/2000)
This acknowledgement must be sent by the swiftest possible means of transmission as soon as possible after receipt of the document and in any event within seven days of receipt.
-
DATE OF RECEIPT:
Done at:
Date:
Signature and/or stamp:
Page 185
NOTICE OF RETURN OF REQUEST AND DOCUMENT (Article 6(3) of Council Regulation (EC) No 1348/2000)
The request and document must be returned on receipt.
-
REASON FOR RETURN:
9.1. The request is manifestly outside the scope of the Regulation:
9.1.1. the document is not civil or commercial
9.1.2. the service is not from one Member State to another Member State
9.2. Non-compliance with formal conditions required makes service impossible:
9.2.1. the document is not easily legible
9.2.2. the language used to complete the form is incorrect
9.2.3. the document received is not a true and faithful copy
9.2.4. other (please give details):
9.3. The method of service is incompatible with the law of that Member State (Article 7(1) of the Regulation) Done at:
Date:
Signature and/or stamp:
Page 186
NOTICE OF RETRANSMISSION OF REQUEST AND DOCUMENT TO THE APPROPRIATE RECEIVING AGENCY (Article 6(4) of Council Regulation (EC) No 1348/2000)
The request and document were forwarded on to the following receiving agency, which has territorial jurisdiction to serve it:
10.1. Identity:
10.2. Address:
10.2.1. Street and number/PO box:
10.2.2. Place and code:
10.2.3. Country:
10.3. Tel:
10.4. Fax*:
10.5. E-mail *:
Done at:
Date:
Signature and/or stamp:
Page 187
Reference No of the appropriate receiving agency:
NOTICE OF RECEIPT BY THE APPROPRIATE RECEIVING AGENCY HAVING TERRITORIAL JURISDICTION TO THE TRANSMITTING AGENCY
(Article 6(4) of Council Regulation (EC) No 1348/2000)
This notice must be sent by the swiftest possible means of transmission as soon as possible after receipt of the document and in any event within seven days of receipt.
-
DATE OF RECEIPT:
Done at:
Date:
Signature and/or stamp:
Page 188
CERTIFICATE OF SERVICE OR NON-SERVICE OF DOCUMENTS (Article 10 of Council Regulation (EC) No 1348/2000)
The service shall be effected as soon as possible. In any event, if it has not been possible to effect service within one month of receipt, the receiving agency shall inform the transmitting agency (according to Article 7(2) of the Regulation)
-
COMPLETION OF SERVICE
(a) 12.1. Date and address of service:
(b) 12.2. The document was
(A) 12.2.1. served in accordance with the law of the Member State addressed, namely
12.2.1.1. handed to
12.2.1.1.1. the addressee in person
12.2.1.1.2. another person
12.2.1.1.2.1. Name:
12.2.1.1.2.2. Address:
12.2.1.1.2.2.1. Street and number/PO box:
12.2.1.1.2.2.2. Place and code:
12.2.1.1.2.2.3. Country:
12.2.1.1.2.3. Relation to the addressee:
family
employee
others
12.2.1.1.3. the addressee's address
12.2.1.2. served by post
12.2.1.2.1. without acknowledgement of receipt
12.2.1.2.2. with the enclosed acknowledgement of receipt
12.2.1.2.2.1. from the addressee
12.2.1.2.2.2. another person
12.2.1.2.2.2.1. Name:
12.2.1.2.2.2.2. Address
12.2.1.2.2.2.2.1. Street and number/PO box:
Page 189
12.2.1.2.2.2.2.2. Place and code:
12.2.1.2.2.2.2.3. Country:
12.2.1.2.2.2.3. Relation to the addressee:
family
employee
others
12.2.1.3. other method (please say how):
(B) 12.2.2. served by the following particular method (please say how):
(c) 12.3. The addressee of the document was informed (orally) (in writing) that he or she may refuse to accept it if it was not in an official language of the place of service or in an official language of the state of transmission which he or she understands.
-
INFORMATION IN ACCORDANCE WITH ARTICLE 7(2)
It was not possible to effect service within one month of receipt.
-
REFUSAL OF DOCUMENT
The addressee refused to accept the document on account of the language used. The documents are annexed to this certificate.
-
REASON FOR NON-SERVICE OF DOCUMENT
15.1. Address unknown
15.2. Addressee cannot be located
15.3. Document could not be served before the date or time limit stated in point 6.2.
15.4. Others (please specify):
The documents are annexed to this certificate.
Done at:
Date:
Signature and/or stamp:
-----------------------------------------
[1] The text that follows reflects the opinions of the author and may not in any circumstances be regarded as presenting the official position of the European Commission.
[2] Convention of 27 September 1968 (consolidated version) (OJ C 27, 26.1.1998, p. 1).
[3] OJ C 261, 27.8.1997, p. 2.
[4] Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by the Court of Justice of the European Communities, of the Convention on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil or Commercial Matters (OJ C 261, 27.8.1997, p. 18).
[5] Explanatory report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil or Commercial Matters (OJ C 261, 27.8.1997, p. 26). Explanatory report on the protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by the Court of Justice of the European Communities, of the Convention on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil or Commercial Matters (OJ C 261, 27.8.1997, p. 38).
[6] OJ L 160, 30.6.2000, p. 37.
[7] OJ L 98, 15.12.2001, p. 1.
[8] Council Decision 2001/470/ EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ L 174, 27.6.2001, p. 25).
[9] OJ L 160, 30.6.2000, p. 19.
[10] Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters (OJ C 12, 15.1.2001, p. 1).
[11] OJ C 247 E, 31.8.1999, p. 11.
[12] Opinion of 17 November 1999 (not yet published in the Official Journal).
[13] OJ C 368, 20.12.1999, p. 47.
[14] OJ C 261, 27.8.1997, p. 1. On the same day as the Convention was drawn up the Council took note of the explanatory report on the Convention which is set out on page 26 of the aforementioned Official Journal.
[15] Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ L 299, 13.12.1972, p. 32; consolidated version, OJ C 27, 26.1.1998, p. 1).
[16] OJ L 281, 23.11.1995, p. 31.
[17] OJ L 24, 30.1.1998, p. 1.
[18] OJ L 184, 17.7.1999, p. 23.
[19] OJ L 160, 30.6.2000, p. 37.
* This item is optional.
