Service of documents within European Union Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 Historical Background Article 6 of the European convention on human rights and Fundamental Freedoms grants among others rights the right to be heard. The defendant must have the right to be heard in the proceedings, i.e. he must get to know about the proceedings ---- the European system of service of documents was not well elaborated ----- in many case the recognition of decision had to be declined because the defendant had not the right to be heard → mutual negotiations and draft of Convention on service of documents in civil and commercial matters, before the ratification --- Amsterdam Treaty and communitarization of the area of judicial cooperation in civil matters → The text of the convention transferred into Regulation – Council regulation no 1348/2000 There exists Haague convention on service of documents from 1965 – similar system, the application of the regulation is easier. Historical Background Regulation (EC) No 1348/2000 has generally improved and expedited the transmission and the service of documents between Member States since its entry into force in 2001, but that nevertheless the application of certain provisions were not fully satisfactory. Prepared new regulation – from 2007, which shall secure more efficient was of service of documents. Valid from 13.11.2008. All Member states except Denmark (but there is Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters) Regulation on service of documents – scope of application Free conditions must be fulfilled: • Is applicable to the service of judicial and extrajudicial documents: a) Judicial document is a document which comes from judicial proceedings (decision, interim measure, notice for the payment of the judicial fee etc.). b) Extrajudicial document – is a document that is not directly connected with judicial proceedings, but whose service is required to secure the effects of such document in the private law area. These documents must be drawn up by authority or person in authority (e.g. notarial deeds, arbitration award etc.) Regulation on service of documents – scope of application 2. The document must be in civil or commercial matters – in the lato sensu interpretation (wide interpretation) – all documents in civil and commercial matters 3. There must be qualified international element – the service must be effected from one Member state to another. Regulation on service of documents – general information 1. 2. 3. The Regulation regulates the role of following subjects: Applicant – the person which applies for the service of documents. Addressee – the person to be served. The address of the addressee must be known. Transmitting agency –the public officers, authorities or other persons, competent for the transmission of judicial or extrajudicial documents to be served in another Member State. The transmitting agency takes the document from the applicant, sends the document to the relevant state and gives information about the result of the service to the applicant. A Member State may designate one transmitting agency and one receiving agency, or one agency to perform both functions. Regulation on service of documents – general information 4. Receiving agency – public officer, authority or other person, competent for the receipt of judicial or extrajudicial document in the Member state. The receiving agency accepts the document sent to it, executes the service itself and informs the transmitting agency about the result.. 5. Central body – each Member state designates a central body responsible for supplying information to the transmitting agencies, seeking solutions to any difficulties which may arise during the transmmission of documents for service and in exceptional cases for forwarding at the request of a transmitting agency a request for service to the competent receiving agency. In the Czech Republic – ministry of justice. Regulation on service of documents – general information The language used within the service procedure necessary to distinguish the language of the form and the language of the document to be served: a) The language of the form – official language of the Member state or the language the Member state has indicated as acceptable (in the Czech Republic – Czech + Slovak, English, French). b) The language of the document – more important, the receiving agency shall always inform the addressee that he (she) may refuse the document if it is in a language other than: language which the addressee understands; or the official language of the Member State addressed. Regulation on service of documents – general information The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages (see previous information). The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs. Regulation on service of documents – the regulated ways of service The Regulation brings two possibilities how to serve a document from one Member state to another Member state: 1. Service „using the international legal aid“ – directly between agencies. 2. Service „non-using the international legal aid“ – other means of transmission These terms are not official – the Regulation does not specify the ways of service this way – these term may be used only to distinguish the procedures! Regulation on service of documents – the service using the international legal aid May be understood as the basic system See the scheme in the annex Regulation on service of documents – the service using the international legal aid • • • • The advantages of this way of service: Expressly regulated periods of time (you have hope that the service will be effected within one month) More languages than only the national language are acceptable The way of „quick communication“ (fax, email) are allowed Only few reasons for the refusal of service Regulation on service of documents – the service non-using the international legal aid The Regulation contains three ways of the service non-using the international legal aid: 1. Transmission by consular or diplomatic channels – in exceptional circumstances – one member state may use diplomatic or consular channel to forward the judicial document to the receiving agency or another Member state. Special regulation – article 13- service by diplomatic or consular agents. 2. Service by post – the service may be effected directly by post – acknowledgement of receipt or equivalent are required. 3. Direct service – directly through judicial officers, officials or other competent persons of the Member state addressed Member state may refuse such way of service (The Czech Republic did refuse!) Regulation on service of documents – defendant non entering an appearance The Regulation contains in article 19 the regulation of further process in case the writ of summons of equivalent document had been served under the provisions of the Regulation and the defendant had not appeared. The Regulation sets down conditions upon which the judgment may be given if the defendant would not appear.