The postal service of documents criticized by the European Commission in its report on the application of the Regulation on service of documents in the European Union

 

On 4 December 2013, the European Commission issued a report to the European Parliament, the Council and the European Economic and Social Committee (COM(2013) 858 final) on the application of Regulation (EC ) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters.

In this report, the Commission discussed the various elements of the regulation: scope, transmission of documents, entities, language, date of service, fees, service by post, direct service, defendant not entering on appearance, and relations with other instruments.

Since the adoption of the first European regulation on service of documents (Regulation (EC) No 1348/2000 of 29 May 2000), replaced by Regulation 1393/2007, the UIHJ repeatedly emphasized the lack of legal security relating to postal service of document in cross-border issues, including by registered mail, this mode of communication being insufficient to meet the requirements of all legal systems of the European Union.

This view was also shared in 2004 by the Mainstrat Company which was then charged by the European Commission to prepare a report on the application of Regulation 1348. In its report the Mainstrat company concluded (paragraph 4.8.4) that:
    Service by post is not advisable 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;
    Service by post should be replaced by physical service to the addressee by a legal professional.

The European Judicial Network in civil and commercial matters held its 10th meeting at the European Commission on 9 and 10 February 2012 (see our article on our site). Regarding the reform of Regulation 1393 the Mainstrat Company had submitted its second report commissioned by the European Commission there. On postal service, the Mainstrat Company issued the same conclusions as those contained in its 2004 report, this time supported by figures from an evaluation study. According to the second Mainstrat report, the most common problems stated by the respondents indicate that the acknowledgment of receipt is not completely filled (41.1 %) or not returned (40.6 %) or the signature cannot be read (34%).

Several countries had responded to this presentation by stating that the postal service did not work for practical and legal reasons.
 
It is clear that the postal service under Article 14 of Regulation 1393 - that is to say by post, with acknowledgment of receipt - is insufficient to ensure the legal certainty expected from all European citizens. Is it acceptable in the European judicial area that a defendant be tried in another country without a full proof that he was informed of the trial, the extent of the application, the date and place of appearance, the terms of representation and the consequences of a lack of presentation or representation? There is only one possible answer to this question.

It is therefore not surprising that, in its report of 4 December 2013, the European Commission considers (paragraph 3.10) that "practical difficulties do exist which affect negatively the efficiency of this way of service". And when "substitute" postal service is possible in a Member State, that is to say a service to a person other than the recipient himself, the report of the Commission rightly observes that this "may not comply with the requirements imposed by the civil procedural law of the requesting Member State". Thus "this problem seriously hinders an efficient use of this method of service".

The report also mentions the disparate systems for postal service in force in the various countries of the European Union excluding a uniform understanding of this type of service. The report adds that "there seems to be more generally a problem in practice with acknowledgments of receipt which are filled in improperly or incompletely, because they are not able to provide appropriate evidence on the relevant facts of the performed or attempted service". Thus, " courts in the requesting Member States often are unable to determine from the return receipt to whom the delivery was performed or when”.

The situation described in the Commission report is in line with all the conclusions always issued by the UIHJ. In terms of cross-border disputes, legal certainty can only be achieved through the adoption of rules of service of documents that meet acceptable standards in all countries. These standards are those covered by a legal professional responsible for conducting a physical delivery of the document to the recipient according to specific rules.

In this regard, in 2009, the UIHJ had prepared a draft European directive of a harmonized document initiating proceedings for cross-border disputes, to focus on the interest of such a document.

In line with the work carried out by the UIHJ, the European Commission states in its conclusion that “In the light of the role of the Regulation in the entire framework of judicial cooperation in civil justice matters, particularly in the light of the abolition of exequatur a deeper integration within the Union, for instance by way of minimum standards on service, may be considered ".

The UIHJ welcomes this recognition with regard to this issue. The European Commission concluded that the report will serve to encourage a broad public debate on the role of the Service Regulation in the Union's civil justice area and how in particular the service of documents may be further improved.

The effective service of documents is essential to the proper administration of justice. The UIHJ will follow with great interest the debate to come and will not fail to submit the position of all its members on all issues to be discussed.