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.
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Service of documents within European Union