What happens when we need to serve a court document to a person or company that is located in another Member State of the European Union?
The service of documents in the European Union, both judicial and extrajudicial, is one of the needs arising from the freedom of movement of persons, goods, services and capital guaranteed by EU law.
To this end, the European Parliament and the Council of the European Union adopted Regulation (EC) No 1393/2007 of 13 November 2007 on the service of judicial and extrajudicial documents in civil or commercial matters in the EU Member States.
The objective of the regime of the service of documents in the European Union is that any resident in the EU, whether a private citizen, professional or company, is made aware of the existence of a legal proceeding affecting him in any other Member State and can defend himself with knowledge of cause and with sufficient advance.
Although the Regulation has been in force for several years, recent case-law of the Court of Justice of the European Union (Judgment of 28 April 2016, case C-384/14, Alta Realitat, SL vs. Erlock Film ApS, and of 2 March 2017, case C -354/15, Andrew Marcus Henderson v. Novo Banco SA) has strengthened the procedural guarantees of the person receiving the service of documents in the European Union and delimited the consequences in the judicial proceeding of origin in case the notification does not comply with the requirements of the Regulation.
What are the requirements for the service of documents in the European Union?
To carry out the service of documents in the European Union, the official form included in Annex I of the Regulation needs to be used. This form must be completed in the official language of the Member State receiving the document (or in one of those official languages when there are several) or in another language that the requested Member State has indicated that it can accept. For their part, the documents subject to service must also be written in one of the official languages of the receiving Member State, or in another language that the addressee understands. Likewise, the Court hearing the case in the Member State of origin is obliged, in all cases and without any exception, to inform the addressee about his right to refuse to accept the documents. For this purpose, it will systematically use the nominated form in Annex II of the Regulation, which is a substantial form requirement, essential for the validity and effectiveness of the service of documents in the European Union.
When can the addressee refuse to accept a document?
The recipient can refuse to accept the documents that must be serviced, either at the time of notification or transfer, or by returning the document within a week, if the documents are not written in a language that the recipient understands, or in the official language of the receiving Member State (or in one of the languages in the case of several co-official languages). Likewise, the recipient may refuse to receive the documents if they are not accompanied by the standardized form of Annex II of the Regulations.
What are the consequences of the omission of the form of Annex II?
In case of omission of this form requirement, the Court issuing the communication must correct it by communicating to the interested party the standard form that appears in Annex II thereof (Alta Realitat, SL vs. Erlock Film ApS and Andrew Marcus Henderson vs Novo Banco SA). In addition, the CJEU has indicated that the fact that the standardized form set out in Annex II of the Regulation has not been attached does not constitute a ground for the annulment of the procedure, but rather an omission that must be corrected in accordance with the provisions of that Regulation (Judgment of the CJEU of 16 September 2015, case C-519/13, Alpha Bank Cyprus Ltd v. Dau Si Senh et al.), that is, by sending the form contained in that Annex to the addressee.
How should the Court of origin assess the recipient’s refusal to accept the documents because of the language in which they are written?
Particularly in its Judgment Alta Realitat, S.L. vs. Erlock Film ApS, the CJEU has established that it is not for the court hearing the case to impede the exercise by the addressee of his right to refuse to accept the document. Likewise, the CJEU has specified that, only after the addressee has effectively exercised his right to refuse to accept the document, may the Court of origin verify the validity of that refusal; for this purpose, the Court must take into account all the relevant information in the case file, in order to determine whether or not the interested party understands the language in which the documents are written. Where that court finds that the refusal of the addressee of the document was not justified, it may, in principle, apply the consequences laid down in its national law for that case, provided that the useful effect of Regulation No 1393/2007 is preserved.
What are the consequences, in the enforcement phase of the judgment, of the breach of the regime of service of documents in the European Union foreseen in the Regulation?
Failure to comply with the requirements of the Regulation for the service of documents in the European Union can have serious consequences in the execution phase of the judgment. Thus, if a judgment has been handed down in a Member State in breach of the regime of service of documents in the European Union provided for in the Regulation (either because the Court of origin has not attached Annex II to the notification or transfer, or because the document is not drafted or translated into an official language or that the addressee understands), the Court in the executing State may refuse, under certain circumstances, to enforce the execution of said judgment, if it considers that said omission has violated the right of defense of the executed part. This is particularly serious in the case of the omission of Annex II, which is quite frequent in practice and whose importance neither the Courts nor the litigants are usually sufficiently aware. For more information on the service of documents in the EU, contact us.
Picture: “Buzón” by Daniel Lobo, udner CC1.0 Universal License