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Handbook on the Service of Documents in the EU: The Date

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Sources

Articles 8 and 9 of the Regulation.

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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