Service of Documents
1. Subject matter and purpose of service
Service means the formal transmission of a document to the addressee. All EU Member States acknowledge service as an essential element of judicial proceedings. In many Member States service is also necessary outside of judicial proceedings when legally important documents have to be transmitted. Of particular note is Portugal where service by what is known as a notificação is also provided for many important declarations under private law.
There are two different forms of service that are essential. Service can be carried out ex officio by the court or, alternatively, it may occur through the initiative of the interested parties, who may, for instance, commission a bailiff or process server. Both the courts and the parties may use a number of different instruments to ensure delivery of the documents. In the case of postal delivery, for example, instruments such as the registered letter may be used. In other circumstances, special officials (like the hussier de justice) may be appointed. Service abroad requires specific methods such as administrative assistance from the serving country or by its local representative (consular services).
The due and timely serving of documents, especially those instituting proceedings (writ of summons), is an essential element of judicial proceedings founded on the rule of law. On the one hand, the serving of the writ ensures that the defendant is informed of proceedings that are pending against him so that he can defend himself—wherein lies a special characteristic of the defendant’s right to due process of law, see Art 6 (1) ECHR (fair trial). On the other hand, the formal service enables the serving party to prove that the addressee was made aware of the writ.
2. The implementation of the law of service in the European legal systems
a) Domestic service
Most of the EU Member States stipulate service by a court—ex officio—as the standard form of service. Ex officio service may often be conducted through the mail. The court itself sends the documents by post in such instances (eg § 175 German Code of Civil Procedure).
In some Member States service is carried out at the parties’ instigation. In such cases, the documents are not served by the court (or relevant competent authority), but rather the lawyers or other private persons initiate the transmission of the documents to the addressee. This does not, however, mean that the service is to be regarded as informal. Rather, the document server is required to comply with the relevant rules of service (see in England Part 6 Civil Procedure Rules).
Some legal systems recognize both forms of service. Where the parties are represented by lawyers or solicitors, many Member States, once the initial service has taken place ex officio, will permit these legal representatives to undertake further service directly between them (eg Art 132(1) Polish Code of Civil Procedure). In Germany, for example, there are some acts of service which may only be carried out ex officio (§ 166(2) German Code of Civil Procedure), and others that are carried out at the parties’ instigation (such as, for instance, arrest orders and orders of temporary injunction under § 922(2) and § 936 German Code of Civil Procedure, as well as orders of attachment of debt under § 829(2)). In the English Civil Procedure Rules, judicial documents (in contrast to the written pleadings of the parties) generally have to be served ex officio (Rule 6.3).
Service is not merely a formal procedure, but actually satisfies a purpose: to ensure the notice of the document. Consequently, the EU Member States acknowledge the possibility of remedying defective service. This means that proceedings can be continued, even though service has not been carried out in the statutory and formal manner, as long as it can be proved that the document has actually been received by the relevant party, thereby giving effective notice.
b) Service abroad
When international judicial proceedings are held, documents often have to be served abroad. In these instances, legal and practical difficulties arise that need to be overcome. Legally problematic is that serving papers abroad constitutes a sovereign act that has substantial effects in another country. Service, therefore, in states with which there is no service convention is dependent on voluntary administrative assistance in each individual case. Practically problematic is that the effective serving of documents to the addressee is often rendered impossible due to linguistic difficulties or differences in the operation of the two postal systems.
The various European legal systems utilize different approaches to deal with this problem. Frequently, for instance, service abroad is replaced by what is known as a fictitious domestic service whereby the document is handed over to a domestic authority who then informs the addressee informally of the service (the so-called remise au parquet). In some cases, at least in ongoing proceedings, the appointment of domestic representatives is mandatory (eg Art 1135(5)(1) Polish Code of Civil Procedure; § 184 German Code of Civil Procedure). Where it is impossible to perform an individual service, a public service may be used, ie putting up a notice on the court board.
International service frequently causes considerable delays to proceedings and generates problems with regard to recognition of judgments (recognition and enforcement of foreign judgments). However, the law of international service in the EU was harmonized by Reg 1348/2000 on 31 May 2001 (now replaced by Reg 1393/2007), which has considerably reduced the length of service procedures within the Union.
3. Harmonized law
Service is dealt with by both European and international rules. The harmonized law deals with not only international but, in part, also domestic service procedure.
The most important international convention is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965. It is in force in 56 countries, including the United States, Russia and China as well as most of the EU Member States (excluding Austria). The Hague Convention acknowledges service by a central authority that undertakes the domestic service for the foreign serving party without any requirement of legalisation or other equivalent formality (Art 3). The option of undertaking service by post also exists (Art 10), although only a few states have made use of this. As always, a consular service remains possible. The Convention is, like other international conventions, overruled by corresponding EU regulations and is thus only applicable to service in non-EU countries.
There are several European regulations that deal with service. The central legal act in intra-European, cross-border service law is the European Service Regulation (Reg 1393/2007). It offers provisions on how cross-border service is to be conducted. These provisions are exclusively applicable, so that Member States are deterred from applying national service norms alongside the Service Regulation should a cross-border service take place within the European Union. Therefore, nowadays the fictitious service forms mentioned at 2. b) above are no longer allowed. In consequence, France, for example, has abandoned its former practice of carrying out services abroad in the form of the remise au parquet as a domestic service. Furthermore, it is doubtful whether service to domestic representatives, as seen in Art 1135(5) (1) Polish Code of Civil Procedure or in § 184 German Code of Civil Procedure, is still acceptable, at least against the will of the parties.
One specific characteristic of the Service Regulation is that the position of service by post is strengthened. Courts may serve documents abroad by post (Art 14). Member States may establish conditions for postal delivery (Art 14(2)), but, in contrast to the Hague Service Convention, they can no longer exclude postal delivery altogether. Most Member States demand, as a condition for effective postal delivery, that the sender must use a registered letter which includes notification of receipt in order to prove the documents were actually received. Service by the parties (direct service), is only allowed if it is accepted by the receiving Member State (Art 15 Service Regulation). A further important characteristic of effective service is translation. If a document is served without a translation and the addressee does not understand it, he may refuse to accept the document (Art 8 Service Regulation). However, the European Court of Justice (ECJ) decided that in such a case a translation may be sent subsequently without delay, and this will ensure the effectiveness of the service (ECJ Case C-443/03 – Leffler [2005] ECR I-9611). Moreover, the ECJ stated that not all of the enclosures have to be translated. It is only imperative that the addressee be able to assert his rights on the basis of the translated parts (ECJ Case C-14/07 – Weiss [2008] ECR I-3367).
In addition to postal service, service through transmitting and receiving agencies is also possible (Art 4 Service Regulation). In this method of service, the document is sent by a domestic transmitting agency—specifically entrusted with the task—to a receiving agency, in the receiving Member State that is similarly especially appointed for the task. This receiving agency is then responsible for service to the addressee, which can be carried out in a formal way (eg with a document of postal delivery or through the bailiff) or, as long as the transmitting agency does not exclude this, by registered post. One slight difference as compared to the Hague Service Convention is that the transmitting and receiving agencies should, if possible, be decentralized. Also, standard forms have to be used, simplifying and accelerating the communication.
The Brussels I Regulation (Reg 44/2001) and the Brussels IIbis Regulation (Reg 2201/2003) provide rules for the recognition of judgments (recognition and enforcement of foreign judgments) where the service does not fulfil certain requirements. According to Art 34(2) Brussels I Regulation (Art 22(b) Brussels IIbis Regulation), a judgment cannot be recognized where it was given in default of appearance if the defendant was not served with the writ in sufficient time and in such a way as to enable him to arrange for his defence. However, service that follows the rules of the European Service Regulation will always be sufficient. Meanwhile, if the European Service Regulation is contravened to any great extent—when a simple letter is transmitted, for instance—the recognition must fail.
A rule regarding service of the declaration of enforceability can be found in Art 43(5) Brussels I Regulation. This provision is problematic because, in contrast to national law, it does not provide possibilities for remedying defects in service and the ECJ insists on its being strictly complied with (ECJ Case C-3/05 – Verdoliva [2006] ECR I-1579).
Regulation 805/2004 and Reg 1896/2006 provide certain minimum requirements that must be fulfilled before either the European enforceable title or the European summons of pay can be received. They are applicable not solely in the case of international service, but also in domestic cases. If international service is necessary to receive a European title or summons of pay, it has to be carried out in accordance with the provisions of the European Service Regulation. The Service Regulation is applied cumulatively with Reg 805/2004 or Reg 1896/2006.
Finally, it should be mentioned that there is some dispute as to whether, when an international service is performed in accordance with the European Service Regulation, defective service can be remedied subsequently as national legal systems provide (see 2. a) above). This dispute is both complex and of major importance. If the writ is not served in a due and timely fashion, the case falls under Art 34(2) Brussels I Regulation. According to this rule, recognition does not depend on compliance with all formal requirements of service. As already mentioned, it is assumed that minor violations are irrelevant with regard to recognition. However, when other documents have not been served in a due and timely manner, Art 34(2) Brussels I Regulation does not apply and no other relevant rules are to be found in Union law. Not even Art 19 European Service Regulation provides a parameter, and ECJ case law is extremely ambivalent. It would appear correct to take the purpose of the service and its rules as decisive. Consequently, one might conclude that defective compliance with the form can be remedied so long as actual service can be proven. The only exception to this would be in cases where the rules of service have been deliberately infringed upon.
4. Tendencies in the development of the law
Service abroad remains a time-consuming and problematic area of international judicial proceedings. However, the problems are of a practical nature, mainly those presented by the use of different languages and differing postal systems. Further simplification of international service cannot, therefore, be accomplished on a legal level.
Literature
Jörg Kondring, Die Heilung von Zustellungsfehlern im internationalen Zivilrechtsverkehr (1995); Núria Marchal Escalona, El nuevo régimen de la notificación en el espacio judicial europeo (2002); Manlio Frigo and Luigi Fumagalli, L’assistenza giudiziaria internazionale in materia civile, capitolo primo (2003) 25 ff; Joaquim-J Forner Delaygua, ‘European Service Regulation: Recent Developments’ [2006] ICCLR 166; Martin Heckel, ‘Vom stillen Ende der Remise au Parquet in Europa’ (2007) RIW 330; Rainer Hausmann, ‘Problems of Interpretation Regarding the European Regulation on Service’ (2007) 1(2) EuLF 8; Martin Heckel, ‘Die fiktive Inlandszustellung auf dem Rückzug—Rückwirkungen des europäischen Zustellungsrechts auf das nationale Recht’ [2008] IPRax 218; Bettina Heiderhoff, ‘EG-ZustellVO’ in Thomas Rauscher (ed), Europäisches Zivilprozessrecht, vol 2 (3rd edn, 2010).
