Legal provisions of COM(1999)219 - Service in the Member States of judicial and extrajudicial documents in civil or commercial matters

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(1999)219 - Service in the Member States of judicial and extrajudicial documents in civil or commercial matters.
document COM(1999)219 EN
date May 29, 2000

Contents

Chapter I - GENERAL PROVISIONS

Article 1 - Scope

1. This Directive shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there.

2. This Directive shall not apply where the address of the person to be served with the document is not known.

Article 2 - Transmitting and receiving agencies

1. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as transmitting agencies, competent for the transmission of judicial or extrajudicial documents to be served in another Member State.

2. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as receiving agencies, competent for the receipt of judicial or extrajudicial documents from another Member State.

3. A Member State may designate one transmitting agency and one receiving agency or one agency to perform both functions. A federal State, a State in which several legal systems apply or a State with autonomous territorial units shall be free to designate more than one such agency. The designation shall have effect for a period of five years and may be renewed at five-year intervals.

4. Each Member State shall provide the Commission with the following information:

(a) the names and addresses of the receiving agencies referred to in paragraphs 2 and 3;

(b) the geographical areas in which they have jurisdiction;

(c) the means of receipt of documents available to them; and

(d) the languages that may be used for the completion of the standard form in the Annex.

The Member States shall notify the Commission of any subsequent modification of such information.

Article 3 - Central body

Each Member State shall designate a central body responsible for:

(a) supplying information to the transmitting agencies;

(b) seeking solutions to any difficulties which may arise during transmission of documents for service;

(c) forwarding, in exceptional cases, at the request of a transmitting agency, a request for service to the competent receiving agency.

A federal State, a State in which several legal systems apply or a State with autonomous territorial units shall be free to designate more than one central body.

Chapter II - JUDICIAL DOCUMENTS

SECTION 1 - TRANSMISSION AND SERVICE OF JUDICIAL DOCUMENTS


Article 4 - Transmission of documents

1. Judicial documents shall be transmitted directly and as soon as possible between the agencies designated on the basis of Article 2.

2. The transmission of documents, requests, confirmations, receipts, certificates and any other papers between transmitting agencies and receiving agencies may be carried out by any appropriate means, provided that the content of the document received is true and faithful to that of the document forwarded and that all information in it is easily legible.

3. The document to be transmitted shall be accompanied by a request drawn up using the standard form in the Annex. The form shall be completed in 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, or in another language which that Member State has indicated it can accept. Each Member State shall indicate the official language or languages of the European Union other than its own which is or are acceptable to it for completion of the form.

4. The documents and all papers that are transmitted shall be exempted from legalisation or any equivalent formality.

5. When the transmitting agency wishes a copy of the document to be returned together with the certificate referred to in Article 10, it shall send the document in duplicate.

Article 5 - Translation of documents

1. The applicant shall be advised by the transmitting agency to which he or she forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.

2. 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.

Article 6 - Receipt of documents by receiving agency

1. A receiving agency, on receipt of a document, shall, as soon as possible and in any event within seven days of receipt thereof, send a receipt to the transmitting agency by the swiftest possible means of transmission using the standard form in the Annex.

2. Where the request for service cannot be fulfilled on the basis of the information or documents transmitted, the receiving agency shall contact the transmitting agency by the swiftest possible means in order to secure the missing information or documents.

3. If the request for service is manifestly outside the scope of this Directive or if non-compliance with the formal conditions required makes service impossible, the request and the documents transmitted shall be returned, on receipt, to the transmitting agency, together with the notice of return in the standard form in the Annex.

4. A receiving agency receiving a document for service but not having territorial jurisdiction to serve it shall forward it, as well as the request, to the receiving agency having territorial jurisdiction in the same Member State if the request complies with the conditions laid down in Article 4(3) and shall inform the transmitting agency accordingly, using the standard form in the Annex. That receiving agency shall inform the transmitting agency when it receives the document, in the manner provided for in paragraph 1.

Article 7 - Service of documents

1. The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular form requested by the transmitting agency, unless such a method is incompatible with the law of that Member State.

2. All steps required for service of the document shall be effected as soon as possible. In any event, if it has not been possible to effect service within one month of receipt, the receiving agency shall inform the transmitting agency by means of the certificate in the standard form in the Annex, which shall be drawn up under the conditions referred to in Article 10(2). The period shall be calculated in accordance with the law of the Member State addressed.

Article 8 - Refusal to accept a document

1. The receiving agency shall inform the addressee that he or she may refuse to accept the document to be served if it is in a language other than either of the following languages:

(a) 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; or

(b) a language of the Member State of transmission which the addressee understands.

2. Where the receiving agency is informed that the addressee refuses to accept the document in accordance with paragraph 1, it shall immediately inform the transmitting agency by means of the certificate provided for in Article 10 and return the request and the documents of which a translation is requested.

Article 9 - Date of service

1. The date of service of a document pursuant to Article 7 shall be the date on which it is served in accordance with the law of the Member State addressed, without prejudice to Article 8.

2. Where a document must be served within a particular period in the context of proceedings to be brought or pending in the Member State of origin, the date to be taken into account with respect to the applicant shall be that fixed by the law of that Member State.

3. Each Member State may declare that it will not apply paragraphs 1 and 2.

Article 10 - Certificate of service and copy of the document served

1. When the formalities concerning the service of the document have been completed, a certificate of completion of those formalities shall be drawn up in the standard form in the Annex and addressed to the transmitting agency, together with, where Article 4(5) applies, a copy of the document served.

2. The certificate shall be completed in the official language or one of the official languages of the Member State of origin or in another language which the Member State of origin has indicated that it can accept. Each Member State shall indicate the official language or languages of the European Union other than its own which is or are acceptable to it for completion of the form.

Article 11 - Costs of service

1. The service of judicial documents coming from a Member State shall not give rise to any payment or reimbursement of taxes or costs for services rendered by the Member State addressed.

2. The applicant shall pay or reimburse the costs occasioned by:

(a) the employment of a judicial officer or of a person competent under the law of the Member State addressed;

(b) the use of a particular method of service.

SECTION 2 - OTHER MEANS OF TRANSMISSION AND SERVICE



OF JUDICIAL DOCUMENTS

Article 12 - Transmission by consular or diplomatic channels

Each Member State shall be free, in exceptional circumstances, to use consular or diplomatic channels to forward judicial documents, for the purpose of service, to those agencies of another Member State which are designated pursuant to Article 2 or 3.

Article 13 - Service by diplomatic or consular agents

Each Member State shall be free to effect service of judicial documents on persons residing in another Member State, without application of any compulsion, directly through its diplomatic or consular agents.

Any Member State may declare that it is opposed to such service within its territory, unless the documents are to be served on nationals of the Member State in which the documents originate.

Article 14 - Service by post

1. Each Member State shall be free to effect service of judicial documents directly by post to persons residing in another Member State.

2. Any Member State may specify the conditions under which it will accept service of judicial documents by post.

Article 15 - Direct service

1. This Directive shall not interfere with the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the Member State addressed.

2. Any Member State may declare that it is opposed to the service of judicial documents in its territory pursuant to paragraph 1.

Chapter III - EXTRAJUDICIAL DOCUMENTS

Article 16 - Transmission

Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Directive.

Chapter IV - FINAL PROVISIONS

Article 17 - Implementing rules

The Commission shall adopt, in accordance with the procedure prescribed by Article 18, rules for the purposes of:

(a) drawing up and annually updating a manual containing the information provided by Member States in accordance with Article 2(4);

(b) drawing up a glossary in the official languages of the European Union of documents which can be served under this Directive;

(c) making amendments to the standard form shown in the Annex;

(d) giving effect to implementing measures to expedite the transmission and service of documents.

Article 18 - Committee

The Commission shall be assisted by a committee of an advisory nature composed of the representatives of the Member States and chaired by the representative of the Commission.

The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote.

The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.

The Commission shall take the utmost account of the opinion delivered by the committee. It shall inform the committee of the manner in which its opinion has been taken into account.

Article 19 - Defendant not entering an appearance

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 Directive, 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 Directive;

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

2. Each Member State shall be free to declare 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 Directive;

(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 of the State addressed.

3. Notwithstanding the provisions of paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures.

4. When 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 Directive, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled:

(a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; and

(b) the defendant has disclosed a prima facie defence to the action on the merits.

An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.

Each Member State may declare that such application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment.

5. Paragraph 4 shall not apply to judgments concerning status or capacity of persons.

Article 20 - Relationship with agreements or arrangements to which Member States are parties

1. This Directive shall, in relation to matters to which it applies, prevail over other provisions contained in conventions concluded by the Member States, and in particular Article IV of the Protocol to the Brussels Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

2. This Directive shall not preclude the maintenance or adoption of provisions to expedite the transmission of documents provided that they are compatible with the Directive. Member States shall notify the Commission of drafts of the measures which they propose to adopt.

Article 21 - Legal aid

This Directive shall not affect the application of Article 23 of the Convention on civil procedure of 17 July 1905, Article 24 of the Convention on civil procedure of 1 March 1954 or Article 13 of the Convention on international access to justice of 25 October 1980 between the Member States parties to these Conventions.

Article 22 - Protection of information transmitted

1. Information, including in particular personal data, transmitted under this Directive shall be used by the receiving agency only for the purpose for which it was transmitted.

2. Receiving agencies shall ensure the confidentiality of such information, in accordance with their national law.

3. Paragraphs 1 and 2 shall not affect national laws enabling data subjects to be informed of the use made of information transmitted under this Directive.

4. This Directive shall be without prejudice to Directives 95/46/EC and 97/66/EC.

Article 23 - Publication

The Commission shall publish in the Official Journal of the European Communities the information referred to in Articles 2, 3, 4, 9, 10, 13, 14, 15 and 19 and furnished by the Member States.

Article 24 - Review

No later than three years after the date of entry into force of this Directive, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, paying special attention to the effectiveness of the bodies designated pursuant to Article 2 and to the practical application of point (c) of Article 3 and Article 9. The report shall be accompanied if need be by proposals for adaptations of this Directive in line with the evolution of notification systems.

Article 25 - Transposal

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 June 2000. They shall forthwith inform the Commission thereof. They shall apply these provisions with effect from 1 October 2000.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall immediately notify to the Commission all provisions of domestic law which they adopt in the field governed by this Directive.

Article 26 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 27 - Addressees

This Directive is addressed to the Member States.