From L. to R. : Pareskevi Michou, Director of Directorate A, Civil Justice, DG Justice of the European Commission, Salla Saastamoinen, Head of Unit A1 - Civil Justice Policy, DG Justice of the European Commission, Christoph Sajonz, Secretary of the EJN
The Essential Role of the EJN for the Harmonization of the European Judicial Area in Civil Matter
The UIHJ was invited to attend this meeting as an observer. It was represented by its first secretary, Mathieu Chardon. For a year now, legal professions have integrated the EJN. Judicial officers from eleven countries of the European Union were present: Belgium, Bulgaria, Estonia, France, Hungary, Latvia, Lithuania, Portugal, Slovakia, Spain and Sweden.
The meeting was chaired by Salla Saastamoinen, Head of Unit A1 - Civil Justice Policy, DG Justice of the European Commission, assisted by Christoph Sajonz, Secretary of the EJN. Pareskevi Michou, Director of Directorate A, Civil Justice, DG Justice of the European Commission, welcomed the participants. Ms Michou said she was very honoured to welcome the representatives of legal professions who joined the EJN a year ago. The EJN is essential for the harmonization of the European Judicial Area in civil matters, said the speaker, because "it facilitates the proper application of the instruments." Ms Michou gave an overview of the current work that would be addressed during the meeting. The aim of the work is to ensure that citizens of the European Union no longer face barriers in terms of justice when they are not in their home country. The action of the European Commission should provide mechanisms for justice to implement their rights. Economic actors can also take advantage of the tools in their possession.
Beyond the recognition of judgments, we must ensure their implementation. It should facilitate cross-border debt recovery, hence the recent proposal (July 2011) for the establishment of a European provisional attachment of bank accounts. The EJN provides legal practitioners and citizens with the website and the European Judicial Atlas, dynamic forms, useful tools to help resolve cross-border disputes and exchange useful information, explained Ms Michou. Regarding legal professions, she said she was very satisfied with their integration into the EJN. "Their experience enriches the EJN. It is a value-added "she recognised. This year, the European Commission and the Council of Europe will organise the Crystal Scales price. It will be presented during the European Day of Civil Justice on 25 October 2012. Ms Michou has invited members of the EJN to promote the event in their country. The speaker ended her short speech by stating that the Commission was engaged in a priority order for justice to contribute to economic development of the member states (Initiative "Justice for Growth). She concluded: "Personal contacts are crucial in the daily work of the EJN members. It has done a remarkable job since 1 December 2002. I congratulate you. Your work has just begun. It will continue. "
The contact points of Belgium and Hungary presented the organization and functioning of the EJN. Then experts from MainStrat Company presented a report commissioned by the European Commission on the implementation of Regulation (EC) No 1206/2001 on evidence. The work began in late August 2011. The final report is expected in early March 2012.
As regards Regulation (EC) No 805/2004 on the European Enforcement Order (EEO), Barrie Irving presented a study on its implementation among the twenty-six states that use it. This study was conducted among ministries of justice, judges, lawyers, judicial officers and academics. In fact, the regulation is rarely used and little experience has been gathered. In conclusion, Mr Irving said the EEO appears more effective than the Brussels I Regulation, but is more vulnerable with regard to the protection of fundamental rights of defendants. The EEO is also the subject of criticism from academics.
As regards Regulation (EC) No 1896/2006 creating a European Order for Payment Procedure, Mr Sajonz said a guide was prepared. This guide is available on the EJN website.
Finally, regarding Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, a working group will be set up soon.
Postal Service Does Not Work for Practical and Legal Reasons
The heart of the discussion concerned the presentation by the MainStrat Company of a study commissioned by the European Commission on the implementation of Regulation (EC) No 1393/2000 of 13 November 2007 on the cross-border service of documents.
The work was conducted from reports by countries, central agencies and experts. 465 professionals were asked about the application of Regulation: lawyers, judicial officers, judges, transmitting and receiving agencies, and notaries. The work focused on the speed and efficiency as well as on legal certainty. On speed, improvements are noted. Inequalities between countries are however recorded. Direct transmission does not seem very effective. The main problem is that entities are not sufficiently familiar with the Regulation. The location of the receiving agencies on the website of the European Judicial Atlas also appears to be difficult. The transmission of documents between entities is conducted by post in 88% cases. Entities said they did not always receive the documents. According to the MainStrat experts electronic transmission between entities which is only used in 4% of the cases, should be promoted.
With regard to legal certainty, the date of service is essential. Problems concerning the date were recorded. It is difficult to determine the date of the document in case of postal service. Acknowledgments of receipt are not completely filled in 41% of cases. In 40% of cases, acknowledgments of receipt of defendants are not returned. In 34% of cases, the signature cannot be read or it is not possible to identify the person signing the acknowledgment of receipt.
Regarding the possibility for the recipient to refuse the document, this right does not seem sufficiently protected. Indeed, the service by post does not include the form in Annex II of the EC regulation which provides opportunities for the recipient to reject the document for lack of translation.
In conclusion, if the postal service is widely used, it is unwise for several reasons. There is nothing to certify that the document is delivered to the right person. There is uncertainty as to the date of service. It is difficult to envisage training of postal services to the arcane of the Regulation. The right to refuse the document for lack of translation is not adequately protected by the postal service.
The transmission by consular or diplomatic channels is judged outdated, inadequate and too slow. Direct notification is not sufficiently known, and is used by only half of the states.
As for electronic transmission, it is recommended only between entities. With regard to electronic service, there is a lack of harmonized process between countries. The interests of recipients should be protected. Electronic service should include a receipt that can also ensure that the recipient understands the served document. Electronic service should include its intrinsic proof of service. It means creating a legal email address for every citizen.
Salla Saastamoinen said the Commission report on the application of the Regulation would be published in 2012. This report will be followed by a public consultation. Regulation 1393 should be revised in 2013.
Many reacted to the MainStrat report. Regarding postal service, several contact points agreed that if it is not a bad system in itself, it does not offer any of the guarantees individuals are entitled to expect: difficulty in determining the date of service, uncertainty as to whether the recipient has been contacted by the letter, even registered (acknowledgments of receipt incomplete or not returned, the recipient's signature unreadable or unusable, ...), problems around the issue of the refusal by the recipient to receive the document for lack of translation, ...
In particular, the representative of Germany acknowledged that "the postal service did not work for practical and legal reasons ": use of registered letter impossible in some member states, acknowledgment of receipt unfilled and not stamped, unreadable acknowledgment of receipt, unusable information...
The representative of the United Kingdom, more nuanced, did not so far oust the criticisms levelled against the postal service.
The representative of Hungary also criticized the service by post. He wondered how to make the system more reliable. "It is important to have safeguards that protect the defendant, he said. Service of documents by post is not bad in itself but it does not work ideally. "
The Judicial Officer, to Ensure Security of Service of Judicial Documents
For the UIHJ said Mathieu Chardon, one must ask if the postal service offers a degree of certainty sufficient to guarantee and protect citizens' rights when confronted with cross-border disputes. Clearly, the EJN members now recognize the problems of lack of legal certainty of the postal service. These problems were reported by the UIHJ since the implementation of Regulation 1348/2000 upon its entry into force. They were raised in particular in connection with the work that led to the revision of Regulation 1348. A first step had been taken in Regulation 1393. Service by post through a non-registered letter had been abolished in favour of the postal notification by registered letter with acknowledgement of receipt. Obviously this is not enough. A very important and historic step has therefore been reached. It should eventually lead to the removal of the postal service for the cross-border service of documents.
The first secretary of the UIHJ did not fail to recall the previous MainStrat report commissioned by the European Commission in May 2004 on the implementation of the first regulation on service of documents. He said that the report had already mentioned that the postal service was not advisable:
“- 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”.
However sensible these recommendations were, they were not followed by the European legislator. Mathieu Chardon suggested that enforcement agents like judicial officers or equivalent, who exist throughout the EU, should be appointed as transmitting and receiving agencies. This would ensure physical delivery of the documents within the framework of the Regulation and avoid using postal service, which is inefficient and a source of too much insecurity.
The first secretary of the UIHJ reminded that service by the care of a professional jurist like an independent judicial officer is the only way to authenticate the actual handing of the document to the addressee. He added that the judicial officer is fully liable for the service, and that only a complex and cumbersome procedure may question the authenticity of the mentions included in the served document.
Our colleague finally recalled that during the international conference organized by the UIHJ in Sibiu (Romania) in 2009 to celebrate ten years of the Tampere European Council, a study had been done on the service of documents in the European Union. It shows that there is anywhere in the EU judicial officers and equivalent independent legal professionals capable of carrying out physical service of documents. The UIHJ had on this occasion produced a draft EU directive on a harmonised document initiating proceedings in the European judicial area. Such a document served by a professional jurist like a judicial officer would solve permanently all the problems relating to legal security European litigants have to face.
It is these problems that the European Commission will be asked to solve at the occasion of the next revision of Regulation 1393. When a system does not work, it should be changed. There are professionals whose mission is to secure and authenticate the service of documents. These professionals are the judicial officers. It is them who should be entrusted with the fundamental mission to serve documents within the European Judicial Area.
