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16/05/2019
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Au service de la profession d’huissier de justice dans le monde depuis 1952
At the Service of the Profession of Judicial Officer in the World since 1952
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Handbook on the Service of Documents in the EU: Problems

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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.
What to do when the seven-day period is not respected or when the receiving agency does not acknowledge the document?

The Regulation does not provide any penalty. In case of delay in sending the acknowledgment of receipt, or in the absence of sending of the acknowledgment, the transmitting agency should report the problem to its central body. The central body of the country of origin will contact the central body of the requested country to find a solution.

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.

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.

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.

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.

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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