Toolkit on Service of Documents in the EU

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Source

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Presentation

Regulation (EC) 1393/2007 of 13 November (hereafter “Regulation”) is a regulation of the European Union on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. This text, in force since 13 November 2008, replaced the first EC Regulation on service of documents, (EC) Regulation 1348/2000 of 29 May 2000. Prior to the adoption of these texts, the service of documents between Member States of the European Union was mainly governed by the Hague Convention of 15 November 1965 (www.hcch.net). This agreement continues to apply to relations with third contracting states.

This text also offers several alternatives

The regulation also includes provisions on the translation of documents (Art. 5 and Art.8), the date of service (Art. 9) or the cost of service (Art.11). Forms are provided to accompany the document throughout the course of the proceedings..

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Where to find the documents?

The European Commission established the European Judicial Atlas in civil matters which provides to citizen and practitioner an easy access to important practical information for judicial cooperation in civil matters.

Ce site est disponible dans vingt-deux des vingt-trois langues officielles de l’Union européenne (il manque le danois).

Pour accéder directement aux informations concernant le règlement :

La colonne de gauche donne accès aux informations suivantes :

The central column gives access to the text of the regulation.

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Sources

Articles 2 and 3 of the Regulation.

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Presentation

Each state communicates the various entities in its territory. A single entity can be at the same time a transmitting and a receiving agency and a central body.To determine the different entities in each state, we should refer to the website of the European Judicial Atlas:

http://ec.europa.eu/justice_home/judicialatlascivil/html/ds_information_en.htm

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Other languages:
Information is available in twenty-two of the twenty-three official languages of the European Union (Danish is missing).

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The Transmitting Agencies

According to Article 2 of Regulation, they are responsible for the transmission of judicial or extrajudicial documents to be served or in another Member State to the receiving agencies. They have to check that the document to be transmitted complies with the scope of the Regulation. They have to inform the applicant of the faculty for the recipient to refuse the document for lack of translation according to Article 8. They also have to fill in the application form for service of the document. The agencies are the public officers, authorities or other persons designated by each State.

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The Receiving Agencies

According to Article 2 of the Regulation, they are competent for the receipt of judicial or extrajudicial documents from another Member State. 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 method requested by the transmitting agency, unless that method is incompatible with the law of that Member State. They fill the appropriate form to indicate to the sender the state of the procedure: acknowledgment of receipt, notice of return or request and document, notice of retransmission of request and document to the appropriate receiving agency, certificate of service or non-service of documents. They inform the recipient of his right to refuse to accept document for lack of translation in terms of Art. 8 using the form in Annex II.

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The Central Bodies

According to Article 3 of the Regulation, they are in charge of various duties:
– Supplying information to the transmitting agencies;
– Seeking solutions to any difficulties which may arise during transmission of documents for service;
– Forwarding, in exceptional cases, at the request of a transmitting agency, a request for service to the competent receiving agency.
Under this mode of transmission, the procedure is as follows:CIRCUIT SET OUT IN THE TRANSMISSION BETWEEN DESIGNATED AGENCIES
Transmitting Agency in the sending State → Receiving Agency in the State of destination → Addressee

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How to find the Agencies?

I am looking for a receiving Agency. I choose the tab “Receiving Agency” listed on the home page of the Regulation. A page will appear. I complete the fields and then I select the “magnifying glass” icon.

Note. It is imperative to enter the city name in the destination language. For example, for the Capital of Poland, “Warszawa” and not “Warsaw” should be registered.

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Sources

Articles 4, 6, 8 and 10 of the Regulation.

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Presentation

In addition to the differences in legislations between States, the main obstacle to overcome is that of language. This is why forms common to all stakeholders were established. They are key communication tools of the Regulation.

All forms are attached to the Regulation. They are available on the website of the European Judicial Atlas

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How to use the forms?

The forms should be completed by the various entities set up by Regulation.

When you submit a form in another state, it is unnecessary to address the model in the language of that other State. Preferably use models in your own language. In return, the State will send you a form in its language. You will understand the contents of the form using the numbering. To do this, you have to use the forms provided by Regulation which include numbering. To simplify their use, you can fill out forms directly from the site of the European Judicial Atlas or copy them into your computer system or in your word processing software.

According to art. 4.3 of the Regulation, however you have to complete the forms in the language accepted by the State with which you communicate. To find out which languages are accepted by member states to complete the forms, you have to refer to the communications of the Member States on the website of the European Judicial Atlas in civil matters. In practice you should not need to have to translate the content of the forms, since you have to write names, addresses, dates (in numbers) and to check, underline, circle, highlight, etc., the numbered items.

Fill out only what is strictly required only when the sign “:” appears. Otherwise, simply choose from the proposals made to you (circle, highlight…). For example for a document initiating proceedings, select section 6.1.1.1 without specifying the type of document initiating proceedings.

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What are the various Forms?

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Sources

Articles 5, 8 and 9 of the Regulation.

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Presentation

The Regulation is the first international instrument to provide a complete and original mechanism concerning the translation of the document to be served.

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Does the document to be served have to be translated?

When transmitting a document initiating proceedings, does this document have to be translated into the official language of that state? The answer is: there is no obligation to translate the document to be served.

However, under Article 8 of Regulation, the addressee of the document – and him/her alone – may refuse to accept the document to be served if it is in a language other than one of the following:
– A language which he/she understands or
– The official language of the Receiving Member State or, if there are several official languages in that Member State, the official language or one of the official languages of the place where the service has to accomplished.

According to Article 5 of the Regulation, the transmitting agency has to inform the applicant of the faculty of the recipient to refuse the document via the form in Annex II. This form must be handed entirely to the addressee in the twenty- two of the twenty-three official languages in force in the European Union. A good translation can be (very) expensive. It can however avoid wasting time and it can avoid dilatory exceptions.

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Practical application

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What needs to be translated?

The question arises whether or not to translate the documents attached to the document to be served. A partial answer was given by the Court of Justice of the European Communities (ECJ, now the EUCJ), since it concerned only documents initiating proceedings (ECJ, 8 May 2008, Weiss und Partners, C-14/07, OJ C 158 of 21 June 2008, p. 5; and Dr. et procéd. 2008, n°6, p. 319, comm. Chardon, 2008 RCDIP P665. note Cornette). According to the ECJ, the document initiating proceedings should clearly specify at least the object and the reasons of the claims, but alos to invitation to appear to court or, depending on the nature of the proceedings the possibility to bring an action to court. The documents, used only as proofs and which are not essential for the understanding of the object and of the claim, are not considered as a part of the document initiating proceedings within the meaning of the Regulation. A great care must be given to this. The applicant should be advised to translate all documents that appear essential to the cohesion of the information provided to the recipient.

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Who should translate the document?

Translation software must be banned. The use of free translation is strongly discouraged because a thorough knowledge of legal language is imperative. It is strongly recommended to use a translator for reasons of reliability and responsibility. Translation costs are paid by the applicant.

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What happens when the document is refused for lack of translation?

The applicant will be informed will be asked to translate the document required as soon as possible to enable a new transmission to the receiving agency. The first transmitted document is still valid as regards the applicant. The document is considered as not served to the addressee if the translation is not send. The Regulation adjusted the rules concerning the date to take this issue into account.

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Sources

Articles 8 and 9 of the Regulation.

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Presentation

The Regulation is the first international instrument to contain a provision on the date of service. Except for the application of this regulation, this matter falls under domestic legislation.

National laws hold generally two different dates: the sending or the reception of the document. The first protects the applicant while the second protects the interests of the defendant. To strike a balance, the idea of a “double date” appeared. For the applicant the date to be considered is the date when the document is sent. For the addressee, the date to be considered is the date when he receives the document.

The Regulation of the European Union proposes a rule adjusting the principle of the double date in section 9. This principle may seem difficult to grasp. How to cope with the idea of having dates for the service of one document? The difficulty for the European legislator was not to disrupt the main principles of the various legal systems of member states.

This is why Article 9.1 of the Rules laid down the general principle that the date of service is the date the document was served to the addressee under the laws of the Member State in which the document is served. The date depends on the content of this law and will not always be the date on which the recipient has received the document.

This principle is accompanied by a development. Where documents are to be served within a particular period time, Article 9.2 specifies that the date to be taken into account with respect to the applicant shall be that determined by the law of that Member State. This is the principle of the double date.

The regulation also provides an adjustment of the date in the event of a refusal of the document for non-translation by the addressee. Article 8.3 states: “In that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed. However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2)”. This provision in Regulation (EC) 1393/2007 is a direct consequence of the ECJ case law (now EUCJ) which introduced the possibility of a regularization for translation (ECJ, 8 November 2005, Leffler, Case. C- 443/03, Europe 2006 com. No. 28 p. 24, note Idot; Droit et procéd. internationales, La Revue des huissiers de justice 2006 p.9, note Menut; Gaz. Pal. No. 102-103 2006 I Jur. p .38, obs.. Nicolella ; Belgian Commercial Law Review 2006 p.366, note Ekelmans).

The Court of Justice of the European Union (ECJ, 9 February 2006, Plumex against Young Sports NV., 2006 European Commission. com. No. 140 p. 32, obs. Idot; Tijdschrift@ipr.be, 2006,. nr.1. pp 63-69, note V. Retornaz) had the opportunity to clarify that in case of dual transmission through two modes (by mail and through entities) the date to be taken into account for the addressee was that of the first service, according to art. 9 of Regulation.

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Sources

Articles 2 and 4 of the Regulation.

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Presentation

Documents are transmitted directly and as soon as possible between the transmitting and receiving agencies. The concerned documents are: requests, confirmations, acknowledgments, certificates and all other kinds of documents.
Documents and annexes are exempted from legalization or any equivalent formality.

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Checking of the documents to send

The role of the transmitting agency is to transmit the document that has to be served to the addressee.
The transmitting agency must ensure that the document falls into the scope of the Regulation. The document has to be a judicial or an extrajudicial document in civil and commercial matters only. The regulation excludes from its scope: “revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii)” (source: article1.1). It does not apply either when the recipient’s address is not known (source: article 1.2).

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Informing the applicant of the faculty offered to the addressee to reject a non-translated document

The translation of the document is not compulsory. However, the transmitting agency must inform the applicant (or his representative) who presented the document for transmission that the addressee may refuse to accept it if it is not established in the one of the following languages:
– A language which the addressee understands or
– 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 (Source: articles 5 and 8.1).
In practice, the transmitting agency is exempted from this formality when the document is already accompanied by a translation, or if the applicant indicates in advance that he does not want the document to be translated.

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Locating the receiving agency

Go to the website of the  European Judicial Atlas.

then change the language when needed.

Complete the fields with the name of the city in the language of the destination country (eg ATHINA, LONDON, WARSZAWA, etc.).

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What document shall be transmitted?

The document to be transmitted is accompanied by a request made using the standard form provided for in Article 4 of the Regulation in Annex I. This form is completed in the official language of the Member State addressed or, if there are several official languages in that Member State, in the official language or one of the languages of the place where it should be served, or in another language which the requested Member State has indicated it can accept.
When the transmitting agency wishes to have a copy of the document back with the certificate of service or non-service referred to in Article 10 (Form 6), it shall send two copies of the document to be served.

In short, the transmitting agency must send to the receiving agency:
– Form 1 duly filled
– The draft document to be served and its annexes, in one or two copies, together with the translations when required

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How to fill in the form?

The agency must complete the Form 1 mentioned in Article 4 of the Regulation.
Section 6.2 of the Form deals with the date or time from when the service is no longer required. This section is optional. If you fill it, the agency shall be permanently relieved of its mission after this period or that date and the document will never be served to the addressee. You have to be sure not to need the service after a certain time.

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How to transmit the document?

The transmission may be effected by any suitable 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.
Each Member State indicated the means of reception of documents its agencies have. To check, see the communications of the member states.When postal transfer is accepted between transmitting and receiving agencies, it is recommended to use registered letter with acknowledgment of receipt. This ensures that the receiving agency has received the documents and shows the date of receipt of the documents.
Advance monies to cover the cost of the document may be required.Return of the document

The receiving agency must send to the transmitting agency an acknowledgment of receipt within seven days of receipt (Source: Article 6.1).

The agency must take all necessary steps to effect the service of the document as soon as possible and in any event, within one month of receipt (Article 7.2).

After the process the receiving agency will inform you with the Form provided for in Article 10 of the Regulation. This form will be returned to the applicant.

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Sources

Articles 2, 6, 7, 8, 10 and 11 of the Regulation.

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Principle

The document is received by the receiving agency that shall itself serve the document or have it served.
Once the service is completed, the receiving agency shall inform the transmitting agency using the Form 6 mentioned in Article 10 of the Regulation.

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Receipt of the documents

If the request for service is manifestly outside the scope of the 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 using the standard Form 3 set out in Annex I under Article 6.3.

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.

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 2 set out in Annex I of the regulation and under Article 6.1.

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
–    Inform the transmitting agency accordingly using the standard Form 4 set out in Annex I and under Article 6.3.

The receiving agency having territorial jurisdiction shall:
–    Send the transmitting agency the notice of receipt using Form 5 set out in Annex I and under Article 6.4, and
–    Serve the document to the recipient. The receiving agency must indicate the result of his efforts in Form 6 mentioned in Article 10 of the Regulation.

Where applicable, the receiving agency may require a payment.

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Service of the document

The document shall be served in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless this method is incompatible with the law of that Member State.

The service must be accomplished as soon as possible and in any event, within one month of receipt.

To allow the addressee to exercise the right to refuse the document for lack of translation, the document must be accompanied by the Form 7 mentioned in Article 8 of the Regulation and in Annex II. This form includes twenty-three pages and is set in twenty-two of the twenty-three official languages of the European Union (Danish is missing). This entire form must be attached and not just the pages corresponding to the language or languages  allegedly understood by the addressee. The receiving agency must fill in twenty-two times items 1 to 5 of the Form 7 corresponding to its contacts details.

If it has not been possible to complete the service within one month of receipt, the receiving agency shall:
– Immediately inform the transmitting agency by means of the certificate in the standard Form 6 set out in Annex I, which shall be drawn up under the conditions referred to in Article 10(2); and
– Continue to take all necessary steps to effect the service of the document, unless indicated otherwise by the transmitting agency, where service seems to be possible within a reasonable period of time.

When the formalities concerning the service of the document have been completed, the agency shall prepare a certificate using Form 6 under Article 10 of Regulation and in Annex I. This certificate is sent to the transmitting agency with a copy of the document served when the provisions of Article 4, paragraph 5 were used.

The certificate shall be completed in the official language or one of the official languages of the Member State or in another language that the Member State indicated it can accept. Each Member State indicates, in its communications, the official languages of the European Union other than its own that can be used to fill in forms that are sent to its agencies.

This certificate must be filled in whatever the result of the service carried out by the agency.

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Non-accomplishment of the service of the document

The agent in charge of the procedure cannot always serve the document. The Form 6 mentioned in Article 10 of the Regulation and listed in Annex I is filled in (paragraph 15 of the Form) and returned to the transmitting agency. In this case, the document remains un-served served to the addressee..

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Refusal to accept a document by the addressee
During the service of the document, the addressee should be informed using the standard Form 7 in Annex II of the Regulation, that he may refuse to accept the document to be served, at the time of service or by returning the document to the receiving agency within one week, if it is not written in or accompanied with a translation into one of the following languages:
a) a language understood by the addressee or
b) 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.

If the addressee has refused to accept the document pursuant to paragraph 1, the service of the document can be remedied through the service on the addressee in accordance with the provisions of the Regulation of the document accompanied by a translation into a language provided for in paragraph 1. In that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed. However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2).

Where, in accordance with the legislation of a Member State, a document must be served within a particular period, the date to be taken into account with respect to the applicant is that determined by the law of that Member State, as mentioned in Article 9.

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1. The agency does not send to the transmitting agency the acknowledgment of receipt form

The receiving agency must acknowledge receipt of the document as soon as possible to the transmitting agency and in any event within seven days after the receipt such receipt, using Form 2.
Source: Article 6 of the Regulation.

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2. Forms are incomplete, illegible, or not completed in the language accepted by the receiving country

If the understanding of the form is impossible, you should first contact the agency that sent the form so that it complies with the requirements of the Regulation. Otherwise, the transmitting agency should report this problem by contacting the central body. The central body of the country of origin will contact the central body of the requested country to find a solution.

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3. The receiving agency returns the document for lack of translation before trying to serve the document

Only the addressee can decide not to accept the document for lack of translation. The transmitting agency should report this problem by contacting the central body. The central body of the country of origin will contact the central body of the requested country to find a solution.

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4. The document comes back without having been served by the receiving agency

When the certificate of service or non-service of documents form mentioned in Article 10 of the Regulation is sent with section 15 filled in, the document was not served to the addressee. When the principle of double date applies, the document is served to the applicant only. His interests are preserved but the document remains non-served to the recipient.

Article 19 of Regulation nevertheless provides a mechanism for the judge to rule in the case of a document initiating proceedings.

Article 19 of Regulation nevertheless provides a mechanism for the judge to rule in the case of a document initiating proceedings.

1. 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.
2. Each Member State may 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.
3. Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures.

Section 19.4 provides a solution for the defendant who did not appear to be relieved from the foreclosure effects of the expiration of appeal periods.

4. When a writ of summons or an equivalent document had to be transmitted to another Member State for service or notification under the provisions of this Regulation, and a judgment has been entered against a defendant who has not appeared, the judge has the power to relieve the defendant from the foreclosure effects of the expiration of appeal periods, if the following conditions are met:
a) the defendant, without any fault on his part, had no knowledge of the document in time to defend, or knowledge of the decision in time for appeal; and
b) means the defendant does not appear wholly unfounded.
An application for such relief must be filed within a reasonable time from the time the defendant had notice of the decision.
Each Member State has the ability to specify, in accordance with Article 23, paragraph 1, that the application is inadmissible if it is not filed within that state in the communication, which shall in no case be less than one year from the issuance of the decision.
Paragraph 4 does not apply to judgments concerning status or capacity of persons.

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5. The receiving agency fails to carry out its mission within a month
Source : article 7.2.

The transmitting agency shall contact the receiving agency. Meanwhile, the transmitting agency may report this problem by contacting the central body. The central body of the country of origin will contact the central body of the requested country to find a solution.

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6. The transmitting agency is informed by the receiving agency that the addressee refuses the document for lack of translation

In this case the document is not served to the addressee. The applicant should be informed by the transmitting agency. For the document to be served the translation has to be made into the language accepted in the Member State addressed or in the language the addressee understands according to the Form 7 he filled in. The transmitting agency will send the translation to the receiving agency. The applicant will retain the benefit of the date of the first transmission.

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1. ECJ, 8 November 2005, Götz Leffler versus Berlin Chemie AG, aff. C-443/03, Europe 2006 com. nº 28 p. 24, note Idot, Droit et procédures internationales, La Revue des Huissiers de Justice 2006 p.9, note Menut, Gaz. Pal. 2006 nº 102-103 I Jur. p.38, obs. Nicolella ; Revue de droit commercial belge 2006 p.366, note Ekelmans.

The ECJ decision clarified the consequences of the faculty for the recipient to refuse a document without translation considering the terms of Article 8 of the Regulation. The Court explained that the sender has the opportunity to remedy the lack of translation by quickly sending the requested translation according to one channel offered by the Regulation 1348/2000. It adds that, to address this problem, national courts have to apply their domestic law while taking care to ensure the full effectiveness of the Regulation, in accordance with its purpose. This solution was included in Article 8 of Regulation (EC) 1393/2007 of 13 November 2007.

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2. ECJ, 9 February 2006, Plumex contre Young Sports NV. aff. C-473/04, Europe 2006 Com. nº 140 p. 32, obs. Idot ; Tijdschrift@ipr.be, 2006, nr.1 pp. 63-69, note V. Retornaz.

In that case, the document was sent simultaneously by several channels. The ECJ explains that the Regulation does not establish any hierarchy among the channel provided by articles 4 to 11 and the channel provided by article 14. Therefore, it is possible to serve a judicial document by any of these two means or to use them cumulatively. However, if both channels are used at the same time, it is necessary to determine for the recipient the starting point of a procedural delay associated with the fulfillment of the service. The Court stated that the date is the one of the first service validly carried out.

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3. ECJ, 8 May 2008, Weiss und Partner aff. C-14/07, and Dr. proc., 2008, p. 319, note Chardon; RCDIP, 2008, p. 665, note Cornette.

In that case, the questions the court has to deal with are linked to the scope of the required translation, and especially, the need to translate or not the appendices. It considers that the sender should identify the elements needed by the recipient to be able to defend himself in the document instituting the proceedings but also in the appendices. These components should be translated. It adds that the choice of a language of correspondence by professional parties to a contract is only a clue of the understanding of this language, but this choice does not create a presumption. However, the Court stated that such language choice deprives the recipient of his right to refuse the document as provided in article 8, if the appendices are in that language.

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4. ECJ, 25 June 2009, Roda Golf & Beach Resort SL, aff. C-14/08; JCP éd. Notariale et Immobilière, 28 août 2009, p. 1249, note Nourissat ; Europe 2009 Com. nº 344 p.46, note Idot. ; JT 2009, p. 654, note Bambust.

The question asked to the Court concerns the nature of the documents that can be served in application to the Service Regulation. The ECJ considers that a deed falls into the scope of the Regulation even without any link with a court action.

EUCJ 19 December 2012, Krystyna et Ewald Alder c. Sabina Orlowska et Czeslaw Orlowski,- aff. C-325/11
D. 2013. 1503, obs. F. Jault-Seseke, RCDIP 2013, p. 700 note Cornette, Lettersblogatory, note Cornette.

This decision concerned the scope of the (EC) Regulation 1393/2007. The Court specified that the legislation of a Member State, here the Polish law, which organizes a mechanism of fictitious service, when the party that lives abroad did not designate a representative to receive the documents served in the State of the court, is contrary to Article 1 of the Regulation. The document to be served should have been sent to the address of this party in the Member State of her residence.