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Cross-border Service of

Judicial Documents

PhD Judge Diana Ungureanu,

NIM trainer

Bucharest, 14- 15 November 2013

Introduction

• Different systems and approaches

- Responsibility of the court /responsibility of

the parties

- Use of universal post / courriers / private

process servers / huissiers de justice

- Importance of a proper service of

documents

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Scope

• civil and commercial matters

• judicial or extrajudicial document, C-14/08, Roda Golf & Beach Resort SL

• has to be transmitted from one Member State to another for service there

Outside the scope:

• revenue, customs or administrative matters

• liability of the State for actions or omissions in the exercise of state authority (acta iure imperii).

• where the address of the person to be served with the document is not known.

• ECJ, case Lindner

• case De Visser (C-292/10)-

MEANS OF COMMUNICATION

• Transmitting and receiving agencies– art.4

• Transmission by consular or diplomatic channels – art.12-13

• Service by postal services – art.14

• Direct service – art.15

• Case C-473/04, Plumex c. Young Sports NV- No hierarchy

• http://ec.europa.eu/justice_home/judicialatlascivil/html/ds_fillingforms_at_en.htm

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http://www.just.ro/TopRightMenu/Cooperarejudiciară/ta

bid/61/Default.aspx

Transmitting and receiving agencies

• court (or other body) in country A,

designated as a transmitting agency →

court or other body in country B,

designated as a receiving agency →

addressee http://ec.europa.eu/justice_home/judicialatlascivil/html/ds_d

ocs_en.htm#Manual

http://ec.europa.eu/justice_home/judicialatlascivil/html/ds_tr

ansmitting_at_en.htm

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TRANSMISSION

(ART.4)

RECEIPT

(ART.6)

SERVICE

(ART.7)

REFUSAL TO

ACCEPT (ART.8)

CERTIFICATE

OF SERVICE

(ART.10)

REQUEST OF

TRANSMISSION

(F1)

-official language

of the Member

State addressed

- exempted from

legalisation or any

equivalent

formality

-Translation the

addressee may

refuse to accept it (art.5)

RECEIPT (F2)

within 7 days of

receipt 1. Where the request

for service cannot be

fulfilled, the receiving

agency shall contact the

transmitting agency

2. outside the scope of

this Regulation/non-

compliance with the

formal conditions

required, the request

and the documents

transmitted shall be

returned 3. (F3) + (F4)

CERTIFICATE

(F5) in accordance with the

law of the Member

State addressed or by a

particular method

requested by the

transmitting agency •within one month of

receipt Case C-

443/03, Goetz

Lefflek c. Berlin

Chemie AG

- immediately

inform the

transmitting agency

-continue to take all

necessary steps to

effect the service

- (F6)

-(F7)

-Where the receiving

agency is informed

that the addressee

refuses to accept the

document, it shall

immediately inform

the transmitting

agency by means of

the certificate

provided for in Art.

10 and return the

request and the

documents of which

a translation is

requested.

-can be remedied

through the service

accompanied by a

translation

C-14/07,

Ingenieurburo

Michael Weiss und

Parner GbR

CERTIFICATE

(F5)

in the official

language of the

Member State of

origin

Service through diplomatic

channels • Court in country A→ ministry of justice in country A →

ministry of foreign affairs in country A → embassy of

country A in country B or embassy of country B in

country A → ministry of foreign affairs in country B →

ministry of justice in country B → (court in country B) →

addressee

Bilateral treaties

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Postal service

• Germany, Slovenia,

Romania: obligation

for the party to

appoint a

representative,

authorized to accept

service

IS IT AT ALL NECESSARY AND WHEN?

A paradigm shift

• From the focus on the protection of national souvereignty ….

• ….to the focus on Constitutional procedural guarantees – right to be heard for the defendant on the one hand and the right to effective access to court for the claimant on the other.

• Compare provisions concerning postal service in the Hague 1965 Convention and in the Regulation No. 1393/2007.

• The 1393/2007 Regulation: States cannot object direct postal service, however extensive safeguards for the addressee concerning language are provided for

• The Hague convention: states can object the possibility of direct postal cross border service. If they do not object, the Convention does not provide for any safeguards concerning language (those concerning service through central bodies do not apply for postal service)

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Direct

service

» Article 15

» Any person interested in a judicial proceeding may

effect service of judicial documents directly through

the judicial officers, officials or other competent

persons of the Member State addressed, where such

direct service is permitted under the law of that

Member State.

http://ec.europa.eu/justice_home/judicialatlascivil/html/index_ro.htm

http://ec.europa.eu/justice_home/judicialatlascivil/html/lk_european_ro.htm

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Practical case no. 1

Regulation (EC) No 1393/2007 – Service of documents – Party domiciled in the

territory of another Member State – Representative domiciled in national

territory – None – Procedural documents placed in the case file – Presumption of

knowledge

Case C-325/11, Alder

• Art. 1(1) of Regulation (EC) No 1393/2007 must be interpreted as precluding legislation of a MS, such as that at issue in the main proceedings, which provides that judicial documents addressed to a party whose place of residence or habitual abode is in another M S are placed in the case file, and deemed to have been effectively served, if that party has failed to appoint a representative who is authorised to accept service and is resident in the first MS, in which the judicial proceedings are taking place.

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Practical case no. 2

Public notification of legal documents – Lack of known domicile or place of

abode of the defendant in the territory of a Member State

Case C-292/10, De Visser

• European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant.

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GUARANTEES CONCERNING LANGUAGE

• The receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, either of the following languages:

• (a) a language which the addressee understands;

• or

• (b) the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected.

C-443/03, Leffler

Service of judicial and extrajudicial documents – No translation of the

document – Consequences

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Anexele documentului

Service of judicial and extrajudicial documents – Annexes to the document

not translated – Consequences

ECJ C-14/07, Ingenieurbüro Michael Weiss

Defendant not entering

an appearance • Art.19 , par.1, 2:

• 1. Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that:

• (a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or

• (b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation;

• and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

• 2. Each Member State may make it known, in accordance with Article 23(1), that the judge, notwithstanding the provisions of paragraph 1, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled:

• (a) the document was transmitted by one of the methods provided for in this Regulation;

• (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document;

• (c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed.

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Practical cases

By his motion registered on the docket of the

Sibiu Tribunal at #1553/85/2008, plaintiff Mânzat

Ioan Lucian files lawsuit against a number of

defendants and the European Court of Justice,

claiming compensation for a violation of his right

to own property.

I sues a constructions company in Birmingham, England,

claiming compensation for construction flaws of works

performed by the latter based on Contract

#23/29.12.2008. The legal action was filed with the Berlin

Tribunal and translated into English; it is accompanied by

over 150 pages of documents in German, including the

Contract itself which states the language for

correspondence between the parties is German.

Mrs. X, Romanian citizen domiciled in Sibiu, files

lawsuit against Y, domiciled in Spain, to compel

him to pay alimony. The motion is written in

Romanian and addressed to the Sibiu District

Court. As she does not know where Y lives, Mrs.

X asks that he be subpoenaed through publicity

avenues, under Reg. 1393/2003.

By her motion registered on the docket of the Timişoara

District Court at #5073/325/2006, plaintiff Mirela Claudia

Pongracz files suit against the Belgian State, through the

Belgian Embassy in Bucharest, the Ministry of the

Administration and Interior, Ministry of Foreign Affairs,

General Police Inspectorate of Bucharest, Police Inspectorate

of County Timiş and the Population Records Service of

County Timiş. She demands to be removed from the records

of the Belgian police as author of several thefts; she demands

a public apology from the Belgian authorities for the treatment

she was subjected to on being unlawfully arrested; she

demands that the Belgian State be compelled to pay 100,000

EUR as moral damage compensation; she demands that an

investigation be launched to identify the person who used her

identity; and that sufficient and appropriate steps be taken to

avoid her unlawful arrest in the future by European authorities.

Practical cases

Mrs. X, a Dutch citizen domiciled in the Dutch

Antilles, files suit against French citizen Y,

domiciled in Reunion, asking for termination of

the marriage that was concluded on 18 March

2000. The action document is written in French

and submitted on the court that has jurisdiction

at the plaintiff’s place of domicile.

Mr. X addressed the Piteşti District Court with a request

for communication, under Reg.1393/2007, of the

statement of revocation of Donation Contract

#1/21.09.2008, signed before the Notary Public of Piteşti

in favor of Ms. Maria M., Italian citizen domiciled in Milan,

Italy.

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MISUNDERSTANDINGS ARE THE MOST

COMMON WAY OF COMMUNICATION dianaungureanu2004@yahoo.com