Explanatory Memorandum to COM(2005)305 - Amendment of Council Regulation 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)305 - Amendment of Council Regulation 1348/2000 on the service in the Member States of judicial and extrajudicial documents in ... |
|---|---|
| source | COM(2005)305  |
| date | 07-07-2005 |
On 29 May 2000 the Council adopted Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters i. The Regulation aims at expediting the transmission of documents which is to be made directly between local bodies (transmitting and receiving agencies) designated by the Member States. Since the entry into force of Regulation (EC) 1348/2000 on 31 May 2001, the Commission has sought to receive as much information as possible about the application of the Regulation. The Commission has therefore gathered information and discussed the application of the Regulation on various occasions. Furthermore, a Study on the application of the regulation has been made by a contractor of the Commission. Finally, the Commission has adopted the Report on the Application of the Regulation foreseen in Article 24 of the Regulation.
- In December 2002, one session in the context of the first meeting of the European Judicial Network in Civil and Commercial Matters was devoted to a discussion of the first experiences with the application of the Regulation. On that occasion, different types of problems were identified which could be summarised as follows: Practical problems due to the fact that the Regulation was introduced only recently (for example, standards forms were not used or the provisions concerning the use of languages were misunderstood); Failure of national administrations to always act within the deadlines provided for by the Regulation; High costs and lack of transparency concerning composition of these costs.
- As a next step in the process of consultation, the Commission organised a public hearing on the application of the Regulation in July 2003. The public hearing provided a forum for an exchange of views for authorities and professions involved in the application of the Regulation. The issues which received most attention in the discussion were the amount of time required for transmission and service of documents, the effectiveness of transmitting and receiving agencies and central bodies, and the issue of costs of service. Several Member States expressed their concerns about the fact that forms were either not used correctly, or not used at all.
- Furthermore, a Study on the application of the Regulation has been prepared by a contractor of the Commission i. The Study concludes that the Regulation has made the transmission and service of documents faster and, by improving judicial cooperation between Member States, has contributed significantly to establishing a European Judicial Area. However, currently professionals involved in the application of the Regulation are still in an adaptation phase and there is still a lack of knowledge about the Regulation. The Study emphasises the need for training of professionals involved in the application of the Regulation.
- Finally, the Commission convened a meeting of the Advisory committee on the service of documents (provided for by Article 18 of the Regulation) in April 2004 in order to discuss the results of the Study as well as possible adaptations of the Regulation, and in order to gather further information from Member States on the functioning of the Regulation.
Based on the information gathered in the Study and in the various steps in the consultation process, the Commission on 1 October 2004 adopted a Report on the Application of Council Regulation (EC) 1348/2000 i including an Annex. The Report concludes that since its entry into force in 2001, the application of the Regulation has generally improved and expedited the transmission and the service of documents between Member States. Nevertheless, in the period of adaptation which is still ongoing, many persons involved in the application of the Regulation, in particular local bodies, still do not have sufficient knowledge about the Regulation. Furthermore, the application of certain provisions of the Regulation is not fully satisfactory.
- In February 2005, the Commission held a public hearing on the Report. A discussion paper which listed a number of concrete proposals for possible modifications of the Regulation served as a basis for the hearing.
Contents
- 2. SUBSIDIARITY AND PROPORTIONALITY
- 3. COMMENTS ON THE SPECIFIC ARTICLES
- 1. Paragraph 1 (Article 7)
- 2. Paragraph 2 (Article 8)
- b) Article 8 (3)
- 3. Paragraph 3 (Article 9)
- 4. Paragraph 4 (Article 11)
- 5. Paragraph 5 (Article 14)
- 6. Paragraph 6 (Article 15)
- 7. Paragraph 7 (Article 15a)
- 8. Paragraph 8 (Articles 17 and 23)
- 9. Paragraph 9 (Annex)
The objective of this Regulation is to further improve and expedite the transmission and service of judicial and extrajudicial documents in civil or commercial matters for service between the Member States, to simplify the application of certain provisions of the Regulation and to improve legal certainty for the applicant and for the addressee.
This objective is in line with the Hague Programme strengthening Freedom, Security and Justice in the European Union adopted by the European Council on 4/5 November 2004. The Programme stresses the necessity of coherence and better legislation and of an evaluation of the acquis in order to increase its effectiveness.
The objective of the proposal cannot be sufficiently accomplished by the Member States themselves as they cannot guarantee the equivalence of rules applicable throughout the Community. The objective can therefore be only achieved at Community level.
The proposal is also fully consistent with the principle of proportionality since it is strictly limited to what is necessary in order to reach its objective.
Article 1
The Commission Report indicates that – compared with the situation under the 1965 Hague Convention on the Service of Documents - the application of the Regulation has made the transmission and the service of documents faster. While the amount of time required for transmission and service has generally been reduced to 1 to 3 months, in some cases up to 6 months are still required. Such delays for the transmission and service of documents between Member States are unacceptable in a European area of justice in civil and commercial matters. This paragraph introduces therefore an obligation to effect the service of a within one month of receipt of the document by the receiving agency.
This paragraph provides furthermore that the receiving agency shall inform the transmitting agency immediately , if it has not been possible to effect service.
The sentence “The period shall be calculated in accordance with the law of the Member State addressed” should be deleted since for the purpose of calculating the periods and time limits provided for in this Regulation, Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits shall apply (see recital 10).
a) Article 8 (1)
In view of divergent approaches in the Member States with respect to a time limit for the refusal to accept a document i, it is appropriate in the interest of a uniform application of the Regulation in all Member States to introduce a common time limit of one week within which the addressee can refuse to accept the document by returning it. It should also be clarified that the addressee may exercise his right also immediately at the time of service directly with the person serving the document.
Furthermore, an obligation to inform the addressee in writing about his right to refuse to accept the document should be introduced since the Commission Report indicates that currently the addressee is not always informed of his right to refuse to accept the document. The receiving agency shall inform the addressee about his right using the standard form in the Annex. In addition, the receiving agency shall - where possible - inform the addressee about his right also orally.
In Article 8 i b) the words “of the Member State of transmission” should be deleted. It is sufficient that the addressee understands the language of the document, whether or not it is a language of the Member State of transmission.
The words “and not accompanied by a translation into one of those languages” are added in order to clarify that if the document is not in one of the languages provided for in Article 8 i, also the original document must be served in addition to the translation (i.e. that it is not sufficient to serve only the translation of the original document).
In view of the fact that the Regulation does not expressly provide for a rule concerning the legal consequences of a justified refusal to accept the document in accordance with paragraph 1, there is currently a case pending at the European Court of Justice with respect to that question i.
For reasons of legal certainty, the Regulation itself should provide for an explicit rule for such cases. This paragraph makes a rectification of the service of the document possible through the service of a translation of the document in accordance with the provisions of the Regulation. In order to effectively protect the rights of both the applicant and of the addressee, the date of service of the document should in that case be the date on which the translation is served. However, where according to the law of a Member State a document shall be served within a particular period in order to preserve the rights of the applicant, the date to be taken into account with respect to the applicant should be the date of service of the initial document.
The purpose of the double date system in Article 9 is to protect the rights of both the applicant and the addressee. Paragraph 1 lays down the principle that the date of service is to be the date on which the document is served in accordance with the law of the Member State addressed. It is intended to protect the rights of the addressee. Paragraph 2 is intended to protect the rights of the applicant, who may have an interest in acting within a given period or on a given date. In such cases it is appropriate to enable him to assert his rights on a date which he can determine himself, instead of referring to an event (the service of a document in another Member State) over which he has no direct influence and which might occur after the due date.
Currently, several Member States i have invoked derogations in accordance with Article 9 i, on the basis that the double-date system is not known in their national procedural laws. Those Member States do, however, have equivalent rules in order to protect the rights of the applicant (e.g. by providing that prescription is interrupted through the seizure of the court).
In paragraph 1, the words “pursuant to Article 7” should be deleted since Article 9 should also apply to the service of a document in accordance with Section 2 (i.e. Articles 12 to 15; see new Article 15a).
In paragraph 2, the wording “within a particular period in the context of proceedings to be brought or pending in the Member State of origin” is too narrow and not sufficiently clear. It should be replaced by the words “within a particular period in order to preserve the rights of the applicant”.
Furthermore, the words “according to the law of a Member State” should be added in paragraph 2. This reference to national law ensures that paragraph 2 is applied only in those Member States which have provided for the double-date system in their national legislation. For this reason, paragraph 3 can be deleted and the complex mechanism of communications under the current paragraph 3 can be replaced by a simpler and clearer provision.
The issue of costs was already brought to the attention of the Commission soon after the entry into force of the Regulation, and has been the subject of extensive discussions on several occasions. The Commission Report indicates that the application of this provision is not satisfactory, mainly due to the fact that in certain Member States the costs charged for the service of documents are very high (above 150 €) and not fully transparent (since the amounts are not known to the applicant beforehand).
The systems Member States have in place with respect to the service of documents differ significantly. In many Member States the service of documents is performed by the courts which in practice often have the documents effectively served by post. In these cases there are no or very low fees for the service of documents. On the other hand, there are some Member States in which a liberal profession such as the huissiers de justice is authorized to serve documents. These professions charge fees for serving documents.
The Regulation is intended to function with different systems of serving documents, and it should neither encourage nor discourage the one or the other system. On the other hand, it cannot be denied that the Regulation has caused problems with respect to some Member States because costs are not fully transparent and in some cases are deemed to be very high.
In order to facilitate access to justice, this paragraph provides that costs occasioned by the employment of a judicial officer or of a person competent under the law of the Member State addressed shall correspond to a fixed fee laid down by that Member State in advance which respects the principles of proportionality and non-discrimination.
As regards the proportionality of such a fixed fee, the amount of existing fixed fees for the service of documents i should be taken into account.
This paragraph aims at further facilitating the application of the Regulation by introducing a uniform rule for all Member States concerning postal services. Currently, the identification of the conditions applicable in a specific Member State is not user-friendly. The paragraph provides for a uniform requirement (registered letter with acknowledgement of receipt or equivalent) which is applicable already in many Member States. This requirement guarantees with sufficient certainty that the addressee has received the document, and that there is sufficient proof thereof.
For reasons of clarification, the term “post” in Article 14 is replaced by the term “postal services”. In accordance with the Postal Directive i, Member States can organise the registered mail service used in the context of judicial or in administrative procedures in accordance with their national legislation, which includes the possibility of appointing the entity or entities responsible for providing these services. The term “postal services” in this context includes therefore (depending on the solution adopted at the level of the Member States) services provided by both public and private operators, irrespective of whether or not these operators are subject to a universal service obligation.
The deletion of paragraph 2 which provides for a possibility for Member States to oppose themselves to direct service will further facilitate the application of the Regulation by introducing a uniform rule for all Member States. Currently several Member States i are opposed to direct service. Provided that the competences of the judicial officers, officials and other competent persons are respected, there is no reason for denying persons interested in judicial proceedings the possibility to effect service directly. This method can in certain cases speed up service significantly.
In order to improve legal certainty for the applicant and the addressee and for reasons of consistency, this paragraph provides – as a clarification - that the rules concerning the refusal to accept the document (Article 8), and the rules concerning the date of service (Article 9), shall apply to the means of transmission and service provided for in this section (i.e. Articles 12 to 15). This modification clarifies also that the language rules of Article 8 also apply for service by postal services i.
The requirement for the adoption of the manual of receiving agencies and the glossary by a Commission Decision (Article 17) should be deleted as well as the requirement of the publication of the information communicated by Member States in the Official Journal (Article 23). Instead, this paragraph provides that a rule equivalent to Articles 19 and 22 of Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters i is introduced since Articles 17 and 23 unnecessarily complicate making available the information communicated by Member States.
The information communicated by Member States is now available in the European Judicial Atlas in Civil Matters i where it is updated continuously. In the Atlas a record should be kept of changes and of time periods during which different declarations have been successively in force.
This paragraph brings the standard forms in line with the new wording of Articles 7 and 8, and introduces an additional standard form concerning the Information of the Addressee about the Right to Refuse to Accept a Document (see Article 8(1)). Furthermore, missing reference numbers of the transmitting and receiving agency and missing references to the new languages are added in the forms.