Article 65 of the Treaty on the European Union mentions that measures aiming to improve and simplify the system for cross-border service of judicial and extrajudicial documents come under the field of judicial cooperation in civil matters having cross-border implications.
The Council adopted on 29 May 2000 the (EC) Regulation n°1348/2000 relating to the service in the Member States of judicial and extra-judicial documents in civil and commercial matter. This regulation was strongly inspired by the Brussels Convention of 26 May 1997 on the same topic, but which never came into force for lack of ratification by the whole of the Member States.
In accordance with article 24 of Regulation 1348, a report relating to the application of the regulation, adopted by the European commission on 1 October 2004, resulted eventually in the adoption by the European Parliament and the Council of (EC) Regulation n°1393/2007 of 13 November 2007.
The service of judicial and extrajudicial documents in the Member States in civil and commercial matter is in the middle of the concerns of the European Judicial Network in civil and commercial matters (EJN). During the inaugural meeting of the EJN on 4 December 2002 in Brussels, a roundtable in which had taken part Leo Netten, 1st vice-president of the UIHJ and Mathieu Chardon, 1st secretary of the UIHJ, had as a subject: “The share of experience on the application of Regulation 1348/2000”.
Several meetings of the EJN were held thereafter to define the relations between the EJN and the legal professions and to settle the questions relating to the opening of the EJN to legal actors: 2 and 13 December 2005, 6 June 2006, and 4 and 5 December 2008.
The UIHJ, as well as representatives of the chambers or national orders of judicial officers of France, Belgium, the Netherlands and Hungary, also took part in the hearing organized by the Commission on 4 February 2005 in Brussels and devoted to the Commission Report on service of documents. In this respect, the UIHJ had submitted its observations. Some additional observations were also made by the UIHJ subsequently to the meeting.
It is within this framework that the European Commission asked the UIHJ to intervene on the topic of the practical application of Regulations 1348 and 1393. The UIJH was represented by its first secretary, Mathieu Chardon.
Also took part in the meeting the National Chamber of judicial officers of Belgium, represented by its president, Marcel Mignon, and Isabelle Bambust, lawyer, as well as Carlos Calvo, representing the judicial officers of Luxemburg.
The meeting was chaired by Joao Paulo Simoes de Almeida, secretary of the EJN.
The meeting started with a round table of the contact points. They mentioned the many problems involved in the application of the regulations. Then, after having thanked the EJN for its invitation, Mathieu Chardon presented the report prepared by the UIHJ on the subject. This report includes four parts:
- General information
- Difficulties in the implementation of the regulations, article by article
- 200 concrete examples in the form of a table indicating the name of the countries of destination, the date of transmission, the date of receipt by the receiving agency, the date of service, the methods of service, and the date of return
- Recommendations which had been made by the UIHJ for submission to the European commission for the modification of the regulation 1348.
The following report proposes a topical summary of the interventions.
General information
Everyone agreed on saying that Regulations 1348 and 1393 contributed in an important way in the improvement, the simplification and the acceleration of the service of documents in the European Union.
On the structural design of Regulation 1348, and notwithstanding the modifications made in Regulation 1393, the UIHJ maintains the essence of its former observations. It is indisputable that the modes of service, according to the degree of certainty which they bring in information to the addressee, influence the process of abolishing the exequatur. However, the question is always to know why having founded a mode as heavy as that of the general mode of transmission (section 1) for finally promoting other means of service (section 2 and articles 14 and 15) which distort its substance?
The references to Regulation 1348/2000 are recurring in other Community regulations:
- Regulation (EC) n°44/2001 of the Council of 22 December 2000 concerning the jurisdiction, the recognition and the execution of court decisions in civil and commercial matters: article 26
- Regulation (EC) n°805/2004 of the European Parliament and the Council of the of 21 April 2004 creating a European Enforcement Order for uncontested claims: 21st “whereas”, article 28
- Regulation (EC) n°1896/2006 of the European Parliament and the Council of 12 December 2006 creating an European Order for Payment: article 27
- Regulation (EC) of the European Parliament and the Council of 11 July 2007 on small claims: 3rd “whereas”
In general, these Community texts provide that they shall not affect the application of Regulations 1348 and 1393. But one finds a disparity of the modes applicable to the service of documents within the framework of these regulations. Regulation 805/2004 seems to provide in articles 13 to 15 the foundations of minimal standards for the service of documents without however deciding of any hierarchy between these various means, nor to refer to internal legislations. Regulation 1896/2006 takes the same minimal standards but, as opposed to Regulation 805/2004, expressly refers to the rules of the national law of the State in which the service of documents must be carried out (article 13). Regulation 861/2007 envisages the postal service with acknowledgment of receipt as a principal mode of handing-over and, failing this, envisages one of the means mentioned in articles 13 and 14 of Regulation 805/2004 (article 13).
The disparity of these modes reveals a lack of coherence which seems to go against the need for improving and simplifying the system of cross-border service of judicial and extra-judicial documents envisaged by article 65 of the Treaty establishing the European Community.
Concerning the EJN and the European Judicial Atlas websites, Mr. Joao Paulo Simoes de Almeida, as well as the whole of the Member States, regretted that they were not entirely updated and were still incomplete. The secretary of the EJN pointed out that this very complex work also depends on the participation of each Member State.
Finland estimates for its part that the receiving agencies are not sufficiently trained and have an incomplete knowledge of the regulations.
Scope of application - Addressee without a known address (article 1)
Jeroen Nijenhuis (the Netherlands) considers regrettable that, in certain cases, because of the language used in the document, it is not possible for the receiving agency to check if the document to be served enters the scope of application of the regulation.
For the Czech Republic, the addressee frequently does not have a known address. Consequently, the regulation does not apply. How is it possible then to locate the addressee? There is a great disparity here between Member States. In certain countries, it is possible to make inquiries and locate the addressee whereas in other countries that is not the case.
For Slovakia, the fact that the regulation does not apply is a problem insofar as in some procedures, such as those regarding child care, the presence of the parties is essential. According to the Slovak contact point, it would be necessary for the receiving agencies to seek the addressee, but several countries seem to be opposed to that. He suggests then for the States to provide information which could be found on the website of the European Judicial Atlas for the Internet user to figure out which type of access to information exists in the country.
This point of view is shared by Germany.
The representative of Bulgaria also agrees. She wonders what should be done when the address of the addressee is unknown resulting for the impossibility to use the regulation.
For Germany, when the given address is insufficient or incorrect, follows an important work for the jurisdictions. On the other hand, when the address of the addressee is unknown, there is no means of serving the document.
In Finland, as explained by its contact point, there is a national register of the population. It is then easily possible to locate the addressee from his name.
Following the example of Slovakia, Jocelyne Palenne (France), Judge at the Bureau of civil and commercial international mutual aid, proposes to feed the website of the European Judicial Atlas with data on the possibilities of obtaining information on the address of the addressee. She estimates however that the responsibility of carrying out enquiries to locate the addressee should not be imposed on the receiving agency. On the other hand, the regulation is not opposed for the receiving agency to provide information on the addressee along with the certificate of service or of non-service.
Date of service (article 7)
The Finnish representative wonders which is the fate of a document when it is not served within one month.
Mathieu Chardon indicates that when the transmitting agency mentions in the article 4 Form the date or time after which service is no longer required (point 6.2.), some receiving agencies might thus be encouraged to let this time pass to avoid the work.
Refusal of the document for lack of translation (article 8)
The Czech Republic representative explains that at present the form in Annex II must be filled by the receiving agency twenty-two times, that is to say once by official language, which is very heavy to manage.
Germany points out that the forms of Annex II are not identical in all versions.
Mr. de Almeida answers that the Annex II form is designed to be filled on line only once and that this dysfunction was going to be corrected.
For the Finnish representative, it would be necessary to be authorized to use only the Annex II form in the language supposedly known by the addressee. This feeling was shared by several other countries although they recognize that the text of the regulation seems to force to join the entirety of the form.
The representative of the Netherlands wonders when is it necessary to start the countdown of the one week deadline to refuse the document. What should be done when this time is one day passed, for example, as proved by the postmark on the envelope? He estimates that it would however be necessary to make a strict application of article 8 and to consider that if the time is not respected, the document should not be refused any more. At all events, he indicates that, as a professional organization, the Royal Organization of the judicial officers of the Netherlands cannot nothing impose this and that it is advisable to wait one week before sending back the certificate of service, except in case of urgency.
The United Kingdom declares itself unfavorable of a service without translation, except when certain that the addressee knows the language used in the document, and wished that the receiving agencies were able to send back the documents directly in order to save time.
Jocelyne Palenne (France) considers that it does not belong to the receiving agency to decide to require a preliminary translation, but only to the addressee.
The Hungarian representative regrets for his part that a certified translation is not compulsory, when such a translation is required.
Mathieu Chardon wonders whether the role of the receiving agency is to control the good application of the times of article 8 in the event of a late refusal of the document by the addressee. He estimates that its role is to transmit the received information to the transmitting agencies and that it belongs to the relevant judge to decide on the validity of the refusal of the document. The 1st secretary of the UIHJ states that the regulation does not indicate how the form of refusal must be addressed. Consequently, a simple letter seems possible. In this case, the insincere addressee can be incited to do nothing, then to await the court decision and have it set asides for lack of translation of the document initiating proceedings while claiming to have sent the form of refusal in due time with a simple letter and then, because having not being served with the translated document, to have legitimately thought that the applicant had not continued his action. Regarding the translation of the accompanying documents, he wonders about the range of the decision of the Court of Justice of the European Communities of 8 May 2008 (Weiss Und Partners v. Grimshaw).
Double date (article 9)
Mathieu Chardon points out that the UIHJ was favorable to the maintenance of article 9 in its drafting of 9 May 2000. According to item 2 of article 9 of the Regulation 1393, the principle of the double date only relates to the documents having to be served within a particular time. That causes a difficulty of application for the documents which are not included in this category, as for instance summons to pay in case of seizure of an immovable property in France, when the addressee is not found by the receiving agency and when no address is known in the country. In most countries, there is a legal construction making it possible for the applicant to continue his proceedings even if the address of the defendant is not known, as long as certain requirements and certain formalism are respected. In France, for example, the judicial officer must attest the research he made to find the addressee. He sends a registered letter and a normal letter to the last known address of the addressee. The document is then considered to be served to the addressee. In some countries, there is publicity in the newspapers, in the town hall, etc. As the Regulation does not apply when the addressee is without a known address, the French judicial officer cannot regularize the document, which thus is finally not served. In case of a court decision or in case of a document initiating proceedings, the question is solved by the means of article 19 of the regulation. But in the case of a document such as a summons to pay in case of the seizure of an immovable property, article 19 does not apply and it is ultimately all the procedure of seizure of this property which is likely to be paralyzed.
Certificate of service (article 10)
For the Czech Republic, as well as for several other Member States like Finland, the indications relating to the certificate of service are not precise enough or are incomplete.
Master Whitaker, Master Senior of the Royal Courts of Justice (United Kingdom), deplores the use of hand writing to complete the forms, which is often not readable. He estimates that it would be convenient for the latter to be exclusively typed.
These remarks are also shared by the UIHJ.
Cost (article 11)
For the Czech Republic, it is difficult to obtain information on the cost having to be paid when the service of a judicial officer is used.
The German contact point estimates that this information should appear on the website of the European Judicial Atlas, as well as the banking coordinates of the judicial officers making it possible to transfer the required sum for the service.
On this point, Séverine Moussy, the new contact point for France, reveals that the National Chambers of judicial officers of her country currently sets up a web link making it possible to obtain on line the banking coordinates of all French judicial officers, and that this operation should be finalized for the end of 2009.
Some representatives gave a report on regrettable overcharges of tariff from some judicial officers. The representative of the Netherlands recalls as an example that the cost of service in his country is 65 Euros and that it is not possible to ask for more.
Service by post (article 14)
Germany evokes the difficulties relating to the application of article 14, when the documents are not filled out, are not filled out properly, or are not signed. Hence follows uncertainty on the service. He also regrets that article 14 is not sufficiently used because, according to him, that would contribute to simplify the service of documents at European level.
The Senior Master of the United Kingdom states that it had been decided with Regulation 1348 to serve the documents by personal service to the addressees by the care of the County Court Bailiffs. But this system proved to be ineffective insofar as these civil servants rarely managed to meet the addressees. Today, as regards service to legal entities, the English receiving agency makes a preliminary Company Search to locate the addressee and then serves the document through a first class letter. As regards natural persons, it is also made by first class postal letter. However, he recognizes that this system does not offer any proof that the addressee was contacted by the letter.
In Poland, when the post-office employee does not find the addressee, he leaves a note in his letter box asking him to pick up his letter within fifteen day at the post-office. Even when the addressee does not comply with this, the service is considered to be effective.
The Austrian representative specifies that the same system exists in his country.
On behalf of the UIHJ, Mathieu Chardon points out that many problems seem to be caused by postal service. He recalls that the European Union has as a will to create an area of freedom, security and justice. A judicial officer who serves a document is entirely liable and thus brings a total legal security which does not exist with the postal service, even with registered letters. Both the investigations made by the UIHJ and the report of the Commission to the Council, the Parliament and the Economic and Social Council (Brussels 1.10.2004 Com. 2004 603 final) reveal the lack of credibility attached to the service of documents by post, and all practitioners agree: this mode of service gives rise to serious inconvenient when the court has to judge on the base of the service of a document which acknowledgement of receipt does not clearly mention if the addressee was really aware of the proceedings. But the “discussion paper” established in view of the hearing of the 4 February 2005 said peremptorily, without any justification, that the postal service gave all required guarantees for the defendant. Actually, it is a known fact that:
- It is impossible in 50% of the cases to determine who is the author of the signature on the acknowledgement of receipt
- It is impossible in a large proportion to identify the writings, the stamps, the data, etc.
- The acknowledgements of receipt are marked with lines, various inscriptions, etc.
The 1st secretary of the UIHJ also mentions the Lex Fori and Mainstrat reports which had been ordered by the European commission but which conclusions were curiously not followed on this matter.
In the Lex Fori report, on the proof of service, the conclusion is as follows (free translation from the French version): “Although the scope of evidence is variable, in all situations, the presence of a correctly established proof will show that the service was accomplished. To distinguish the methods of proof according to their range is however not without utility because, at the time of a dispute of the validity of the service, the court will consider with a greater circumspection the certificate of sending of a simple letter than the certificate of the service signed by the addressee himself. That does not mean that certificate of the service by handing-over to the addressee is beyond criticisms. Thus, a dispute will be able to relate to the authenticity of the signature of the addressee. Indeed, certain third parties can usurp the identity of the addressee or an obliging server can close the eyes on the fact that only a third party is present and ask him to sign in the place of the addressee. In France, in Belgium, in Luxembourg and the Netherlands the signature of the addressee at the time of service is covered by the authentic force of the document. It is only at the end of a procedure of forgery that one will be able to obtain the cancellation of the document. ” In addition it is indicated on page 32 (free translation from the French version): “The personal service to the addressee is the only means of making sure with a total certainty that the addressee was informed. No other method makes it possible to reach this result. ” Concerning the date of service, the conclusion of the report is as follows (free translation from the French version): “The study of the unquestionable, supposed or fictitious nature of the date shows that certain methods offer a total security whereas others are particularly dangerous. A hierarchy takes shape between methods which depends on the nature of the date of service. If one compares this hierarchy with that of the proof one sees that the surest methods in terms of settlement of the date are also the methods which offer the greatest probationary guarantees. In this respect, the personal service to the addressee appears as the ideal mode because it profits at the same time from a great conclusive force and an unquestionable date”.
As for the Mainstrat report, it indicates on page 64 (English version):
« Our main proposals at this stage, and taking account of the input from the survey, are:
- Service by post is inadvisable because acknowledgments of receipt are usually not sent back
- Service by post creates uncertainty because there is no assurance that delivery has been effected to the right person
- Service by post creates uncertainty about the date to be taken into consideration as evidence that service has been effected (date of issue by the applicant or date of reception by the addressee)
- Service by post should be replaced by physical service to the addressee by legal professional.”
It appeared during the discussions that many problems result from postal service. But what answer to give to England and Wales which proceeds by way of simple and not registered postal service instead of the personal service initially carried out by the County Court Bailiffs? In fact, from the opinion of the British Senior Master, the results obtained by these civil servants were largely insufficient and required to take measures. But was it inasmuch necessary to choose a less efficient system when other systems prove to give satisfaction? England and Wales could for instance designate the liberal professionals that are the High Court enforcement officers as receiving agencies, following the examples of France, Belgium, Luxembourg and the Netherlands. The Royal Courts of Justice would then be discharged from a task which seems to be difficult to fulfill due to the permanent increase of the volume of documents. High Court enforcement officers, as for them, appear to offer all professional qualities and all necessary competences to guarantee that the service of documents is as efficient in this country as in France or in the Benelux countries, where - does it have to be reminded? - personal service of documents to the addressee is the rule.
Moreover, this thought applies to all Member States of the European Union where liberal professionals of judicial officer type exist.
Finally an international symposium is organized in Sibiu (Romania) on 13-15 May 2009 by the UIHJ, the National Chamber of judicial officers of Romania and the Simon Barnutiu Faculty of Law of Sibiu. The topic of this symposium is: “Judicial Europe: 10 years after the Council of Tampere”. On this occasion, the UIHJ will present the project of a European document initiating proceedings which is the results of several years of work. Of course the service of this document to the addressee is meant to be done... by a professional and qualified judicial officer!
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