harmonisation of procedures in civil and commercial …

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Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

Max Planck Institute Luxembourgfor International, European and Regulatory Procedural Law


HARMONISATION OF PROCEDURES IN CIVIL AND COMMERCIAL MATTERS

- CROSS-BORDER SERVICE OF DOCUMENTS AND TAKING OF EVIDENCE- EU ONLINE TOOLS FACILITATING THE APPLICATION OF THE SERVICE

AND EVIDENCE REGULATION

Georgia Koutsoukou

Utrecht, 24 January 2014

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Regulation (EC) No 1393/2007 on the service in the Member Statesof judicial and extrajudicial documents in civil or commercial matters(service of documents), and repealing Council Regulation (EC)No 1348/2000

Regulation (EC) No 1206/2001 on cooperation between the courts ofthe Member States in the taking of evidence in civil or commercialmatters

ONLINE TOOLS FACILITATING THE APPLICATION OF THESE INSTRUMENTS European e-Justice Portal European Judicial Atlas in Civil Matters European Judicial Network in Civil and Commercial Matters


E-Justice Portal - https://e-justice.europa.eu/home.do

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European Judicial Atlas in Civil and Commercial Mattershttp://ec.europa.eu/justice_home/judicialatlascivil/html/index_en.htm


European Judicial Network in civil and commercial mattershttp://ec.europa.eu/civiljustice/index_en.htm

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SERVICE REGULATION


Scope of Application (Article 1)

Ratione loci All Member States, including Denmark

Ratione materiaeTransmission of judicial and extrajudicial documents in civil andcommercial matters“civil and commercial matters” cf. Article 1 of the Brussels I Regulation“judicial and extrajudicial documents”: autonomous interpretation, cf. ECJ, 25.6.2009, Case C-14/08, Roda Golf, [2009] ECR I-5439.

The Regulation does not apply, where the address of theperson to be served is not known (Article 1 para 2)

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Interactions between the Service Regulation and National LawTransmitting Member State

When the addressee resides abroad, the service of documentsmust be carried out by the means National Lawprovided for in the Regulation

Service Regulation Receiving Member State

Methods of transmission of

documents+

Conflict of Laws Rules on the

Date of Service

Who is the addressee?+

Leg Effects of the Service

How is service to beeffected in the Member

State addressed?+

Validity of the service


Innovations of the Service Regulation

Decentralization of the transmission of documents Central bodies are entrusted with the transmission of

documents only exceptionally Deadlines for the service of documents Translation of the documents is not obligatory - Right to

refuse service Standardized forms facilitate the application of the

Regulation and the communications among authorities

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Methods of Service

Transmission between the transmitting and receiving agencies(Article 4 et seq.)

Service by diplomatic or consular agents (Article 12) Indirect diplomatic channel (Article 13) Postal Service (Article 14) Direct Service (Article 15)

No hierarchy between the available methods of service(ECJ, 9.2.2006, Case C-473/04, Plumex, [2006] ECR I-141)


Transmission between the transmitting andthe receiving agencies

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Transmission between the transmitting and the receivingagencies

Direct and immediate Transmission (Article 4 para 1) All appropriate means of transmission are permissible - modern

communication technologies (Article 4 para 1 - The EuropeanJudicial Atlas provides all the necessary information)

Documents do not have to be legalized (Article 4 para 4) Documents are not to be translated necessarily – right to refusal of

service (Article 5 para 1) Translated documents must be legalized, if this is required under

the law of the receiving Member State Documents must be accompanied by a standardized Request for

Service of documents - The e-Justice Portal provides all thestandardized forms set out in the Annex I to the Regulation (Article4 para 3)

The receiving agency has to send an Acknowledgement of Receipt,using the standard form contained in Annex I [Article 7 para 2 lit b)]


Transmission between a transmitting and a receiving agency

Transmitting agency - Request for Service of Documents(Article 4 para 3 )

Receiving agency - Acknowledgment of Receipt within 7 days of receipt (Article 6 para 1)

Service of documents withinone month of receipt (Article

7 para 2)

Certificate of Service (Annex I ) in the language of thereceiving Member State

Request for service incomplete (Article 6 para 2)

Notification of the transmitting agency with all

appropriate means - No standardized form -

Service within 30 days ofcompletion of the Request

Receiving agency does not have territorial jurisdiction to effect

service (Article 6 para 4)Notice of retransmission of

Request and Document to the appropriate receiving agency

(Annex I)Acknowledgement of receipt of

the documents by the appropriate Agency (Annex I)

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Refusal of Service (Αrticle 6 para 3)

The request clearly does not fall within the scope of the

Regulation

Failure of the transmittingagency to comply with formal

requirements (e.g. request non legible, incomplete etc.)

The receiving agency has to return the request and the documents to be served, using the standard form “Notice of Return of Request and Document” (Annex I)



How is service to be effected?

Service is effected in accordance with the law of the receivingstate (Article 7 para 1)

The transmitting agency may request a particular servicemethod - Service may be refused, if the requested method isincompatible with the law of the receiving Member State(Article 7 para 1)

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Right to refuse service in case the documents to be served are nottranslated in a language that the addressee understands or theofficial language of the receiving Member State (Article 8)

The receiving agency must make use of the standardized form “Informationto the addressee about the right to refuse or accept a document” (Annex I,European Judicial Atlas, e-justice Portal)

Use of the standardized form „Information to the addressee about the rightto refuse or accept a document”, where the defendant is not entitled torefuse service? Cf. pending case C-519/13, Alpha Bank Cyprus

Notion of documents to be served, cf. ECJ, 8.5.2008, Case C-14/07, Weissund Partner, [2008] I-3367

Degree of knowledge of a language, cf. ECJ, 8.5.2008, Case C-14/07, Weissund Partner, [2008] I-3367

The addressee may exercise its right either at the time of service or within oneweek of service. The addressee may hand over the refusal form to the bailiff atthe time of attempted service or send it via post or e-mail. The addressee has tomake use of the standard form “Information to addressee about the right torefuse to accept a document”, served on him along with the documents


Right to refuse service

Receiving Agency ─ Standard Form“Information to the addressee about the right to refuse or accept a document” - OMISSION OF THE RECEIVING AGENCY TO INFORM THE ADDRESSEE

OF ITS RIGHT TO REFUSE SERVICE RENDERS SERVICE INVALID

The addressee may exercise its right either at the time of service or within one week of service, using standard form “Information to addressee about the right to refuse to accept a

document”

IF THE ADDRESSEE REFUSES SERVICE

The receiving agency must immediately inform the transmitting agency thereof, using the

standard form Certificate of Service or Non-service of documents, and return the request and

the documents of which a translation is requested.

The Court dealing with the case will rule on the validity of service

Service remains valid, when the addressee has refused service, although he was not entitled to

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Remedy of the service procedure in case the receiving authority omitted to inform the person to be served of its

right to refuse service

Documents as well as the translation have to be served denovo on the addressee in accordance with the provisions ofthe Regulation

Does service on the lawyer acting for the respondentsappearing under protest, who is under an obligation vis-à-vishis clients to accept service, remedy the omission to informthe addressees of their right to refuse service? Cf. pendingcase C-519/13, Alpha Bank Cyprus


Date of Service The date of service is governed, in principle, by the law of the

addressed Member StateWhen the document has to be served within a deadline

according to the Law of a Member State, it is for the law of thisMember State to determine the date of service

Costs Service of documents does not give rise to any costs or fees Exceptions where the applicant (i) requests a particular method

of service (ii) has recourse to a judicial officer or othercompetent person in the Member State addressed. In the lattercase Member States have to fix a single fee to this purpose

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Other Methods of Service

Transmission by consular and diplomatic channels (Article 12): onlyexceptionally permissible

Direct service by diplomatic or consular agents without applicationof compulsion – Member States may declare their opposition(Article 13)

Postal service by registered letter with acknowledgement of receipt(Article 14): (i) only the transmitting authority may have recourse tothis method of service, not the parties (ii) law of the receiving statedetermines the general legal framework

Direct Service (Article 15): parties are entitled to contact thecompetent authorities of the Member State addressed, only whenthe service lies within the responsibility of the interested partiesaccording to the law of the addressed Member State

Right to refuse service (Article 8), as well as the double-date system(Article 9) apply to these methods as well


Electronic Service

The Service Regulation is silent as regards electronic service. It isquestionable whether electronic service can be consideredcross-border service for the purposes of the Regulation and, ifso, whether electronic service is permissible under theRegulation (cf. ECJ, Alder)

Electronic Service is allowed as a method of service for thepurposes of the Regulation for a European Enforcement Order, the European Payment Order Procedure and the European Small Claims Procedure

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Good Practices-Electronic Service

UK(6.3 CPR, Practice Direction 6A)Electronic Service Possible where the solicitor has indicated in writing to theparty serving its willingness to accept service by fax or other electronic means Spain[Articles 152.2, 162 of the Ley de Enjuciamento Civil (LEC) – System Lexnet]Τhe Lexnet System allows for the transmission and receipt of judicialdocuments via an advanced e-mail program. It provides mechanisms for theaccurate determination of the time of transmission and receipt. Electronicreceipts of service and error receipts Italy(Article 133-134, of the Codice di Procedura Civile, Presidential Decree123/2001 ─ Sistema Informatico Civile)The system ensures the identification of its users and provides service receiptsigned electronically. Certain documents may also be served on the e-mailaddress the party’s representative provided to the Bar Association


Austria (Verordnung des Bundesministers für Justiz überden Elektronischen Rechtsverkehr-ERV)

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AustriaSecured electronic system with a closed number of users, available upon registration - ERV does not rely upon an e-mail program§ 112 ZPO: Transmission of documents via e-mail between the representatives of the parties is possible


Germany (Article 130a and 130b, 174 ZPO -Elektronisches Gerichts- und Verwaltungspostfach, EGVP)

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GermanyService of electronic documents is to be proven by personal notificationwith acknowledgement of receipt (without any restriction on a bailiff,notary lawyer or other judicial officer; on other parties involved in theproceedings permissible only to the extent they consent thereto).Electronic Court and Administration Mailbox (Elektronisches Gerichts- undVerwaltungspostfach, EGVP): Users can download the software withoutany charge at www.egvp.de and obtain an electronic mailbox for receivingelectronic documents. The system provides immediate signedconfirmation of receipt and creates upon request an automatic e-mailnotification of receipt of the electronic documents.

§ 195 ZPO: Electronic service of documents between the representativesof the parties is possible and has to be effected with acknowledgement ofreceipt.


European Evidence Regulation

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Scope (Article 1)Ratione lociAll Member States, with the exception of Denmark (party to 1970Hague Convention on the taking of evidence abroad)Ratione materiaeTaking of evidence in “civil and commercial matters” intended foruse in judicial proceedings, commenced or contemplatedAn early hearing for the purpose of preserving and obtainingevidence or assessing the risks and chances of future proceedingsdoes not fall within the scope of the Brussels I Regulation, ECJ,28.4.2005, Case C-104/03, St. Paul Dairy NV, [2005] ECR I-3481Pre-trial discovery, fishing expeditions? Opinion Kokott AG,18.7.2007, Case C-175/06, Tedesco, [2007] ECR I-7929 para 66 etseq.


The Evidence Regulation does not govern exclusively the cross-border taking of evidence

ECJ, 12.10.2010, Case C-170/11, Lippens: “[…] the competentcourt of a Member State which wishes to hear as a witness aparty residing in another Member State has the option, in orderto perform such a hearing, to summon that party before it andhear him in accordance with the law of its Member State”ECJ, 21.2.2013, Case C-332/11, ProRail: “[…] the court of oneMember State, which wishes the task of taking of evidenceentrusted to an expert to be carried out in another MemberState, is not necessarily required to use the method of takingevidence laid down by those provisions to be able to order thetaking of that evidence”

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Innovations of the Evidence Regulation

Decentralization of the of taking of evidence abroadRequests are transmitted directly from the requesting court to therequested court of another Member State. Central Bodies areexceptionally involved in cross-border taking of evidence. Transmission of requests is allowed by all appropriate means Direct evidence taking is permissible under certain conditions Standardized forms facilitate the application of the Regulation Deadlines for the execution of the Request for taking of evidence


Methods of cross-border Taking of Evidence

Direct Taking of Evidence by theRequesting Court (Article 17)

Governed by the Law of theRequesting Member State

Coercive measures not permissible

Taking of evidence in the language ofthe Requesting Court

Authorization of the central bodyrequired

Taking of Evidence Abroad by theRequested Court (Article 4 et seq.)

Governed by the law of theRequested Member State, unless therequesting Member asked that itsrequest is performed in accordancewith its national law

Coercive measures possible

Taking of evidence in the language ofthe Requested Court

Direct cooperation between Courts

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Taking of Evidence Abroad by the Requested CourtRequest for taking of evidence (Standard Form A) in the official language of the Member State of the Requested Court or other permissible language by all possible means (translation of documents in

the language in which the request is written)

Acknowledgment of Receipt by the requested Court (Standard Form B) within 7 days of receipt

Request is complete andcourt has jurisdiction:

Request is to beperformed within 90

days of receipt (Aricle 10 para 1)

Unable to perform the Request within 90 days: Reasoned Notification of

Delay (Form G-Article 15)

Requested Court does not have

jurisdiction overthe Request:

Request is to beforwarded to thecompetent court;

the RequestingCourt is to be

notified thereof(Form A-Article 7

para 2)

Request is incomplete: The Requested Court asks for

additional information(FormC)

The Requesting Court hasto provide the missing

Information within 30 days(Article 8 para 1)

Failure to provide themissing information within30 days→ Request may berefused [Article 14 para 2

lit. c)]

The Requesting Court has not paid advance of

costs or deposit fortaking of evicence:

Requested Court mayask for this payment,

using form C, within 60 days (Article 8 para 2)

No payment within 60 days→ Request may berefused [Article 14 para

2 lit. d)]


Taking of Evidence Abroad by the Requested CourtHow is the request carried out?

Principally, in accordance with the law of the Member State ofthe Requested Court (Article 10 para 2)

The Requesting Court may ask that the taking of evidence beperformed in accordance with a method provided in ist nationallaw (Article 10 para 3)

The Requesting Court may ask for taking of evidence by means ofcommunication technology ─ Refusal of the Request for taking ofEvidence Abroad by the requested Court or by means of moderncommunication technology, where this method of taking ofevidence is incompatible with the law of the Member State of theRequested Court or poses severe practical difficulties (Article 10para 4)

The Requested Court may have recourse to coercive measuresprovided under its national law (Article 13)

Taking of Evidence Abroad by the Requested CourtHow is the request carried out?

Principally, in accordance with the law of the Member State ofthe Requested Court (Article 10 para 2)

The Requesting Court may ask that the taking of evidence beperformed in accordance with a method provided in ist nationallaw (Article 10 para 3)

The Requesting Court may ask for taking of evidence by means ofcommunication technology ─ Refusal of the Request for taking ofEvidence Abroad by the requested Court or by means of moderncommunication technology, where this method of taking ofevidence is incompatible with the law of the Member State of theRequested Court or poses severe practical difficulties (Article 10para 4)

The Requested Court may have recourse to coercive measuresprovided under its national law (Article 13)

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Presence and Participation of the parties and the Representatives of the Court (Article 11 and 12)

Right to be present: i) if so provided for by the law of theMember State of the requesting court, or ii) if therequesting court informed the requested court that theparties and, if any, their representatives, will be present

Right to participate: i) if the law of the Member State of therequested Court allows for their participation ii) If theparticipation is requested by the requesting court, therequested court determines the conditions under whichthey might participate.


Taking of Evidence Abroad by the Requested CourtOutcome of the Request

Refusal of the Request (Article 14) The Request does not fall within the scope of the

Regulation The Request does not fall within the functions of the

judiciary Failure of the Requesting court to complete the RequestFailure of the Requesting court to pay deposit of advance

of costsHearing of a person: the person concerned is entitled to

refuse evidence or is prohibited from giving evidenceaccording to the law of the requested or requesting court

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Taking of Evidence Abroad by the Requested Court-Outcome of the Request

The Requested Court has to inform the Requesting court of theOutcome of the Request, using Form H

Refusal of Request (Article 14 para 4)

The Requested Court has toinform the Requesting Courtwithin 60 days of receipt of theRequest

Execution of Request (Article 16)

The Requested Court must send without delay the documents

establishing the execution of therequest and, where appropriate, return the documents received


Direct Taking of Evidence Abroad (Article 17)Request for direct taking of Evidence to the Central Body (Form I - Article 17 para 1 )

Central Body of the addressed Member State has to inform the RequestingCourt within 30 days of the receipt of the request whether direct taking of

evidence is permitted (Form J –Article 17 para 4 )

If the the request is granted (Article 17 para 4),

the central body may specify the conditions under which direct taking

of evidence is to be performed

Refusal of Request:Grounds for Refusal (Article 17 para 5)

i) The Request does not fall within thescope of the Regulation

ii) Direct taking of evidence is contraryto fundamental principles of law

iii) The Request in not complete

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Costs (Article 18) The execution of the request for taking of evidence abroad does

not give rise to a claim for any reimbursement of taxes or costs. Asregards the notion of taxes and costs: ECJ, Weryński,17.2.2011,Case C-283/09, [2011] ECR I-601

Upon request of the requested court, the requesting court has toreimburse the fees paid to experts and interpreters, as well as thecosts occasioned by the application of a method for taking ofevidence requested by the requesting court or the use of moderncommunication technology


Modern Communications Technology – VideoconferencingAvailable on e-justice Portal

Information on general videoconferencing policy Practical Guide: Using videoconferencing to obtain evidence in civil

and commercial matters under Council Regulation (EC) No1206/2001 of 28 May 2001-A practical guide (EJN)

Booklet: Videoconferencing as a part of European e-Justice (e-Justice-2009)

Information on national facilities enabling videoconferencing

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Modern Communications Technology – VideoconferencingGood Practices- Data Communicated by the Member States

to the European Commission

Germany: simultaneous interpreting facility into thevideoconferencing equipment enables interpreting inproceedings in which a number of defendants speak aforeign language

Austria: centralised booking system forvideoconferencing, available to all national courts (directbookings of the courtrooms with videoconferencingequipment)

Finland: different kinds of videoconferencing equipmentfor different purposes (court sessions, preliminaryhearings, hearing witnesses, mobile use)


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