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Rainer Hausmann Problems of interpretation regarding the European Regulation on Service The European Legal Forum (E), 1/2, 2007, 8 - 20 © 2007 IPR Verlag GmbH Mьnchen
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for the development of a more congruous practice of the respective instruments in the jurisdictions considered. The European Commentary is however more than a format of uniform legal publication. It introduces an important element of legal thinking, i.e. of a subject oriented structuring of the information, into the context of electronic information. As such it is an important structure element of the unalex system and of the "unalex method". 6.2. The network unalex as a stimulus for the international legal research It was said before that the creation of an international system of uniform legal information is primarily a research project, which needs to rely on research of the highest possible standards. The unalex method is based on two main concepts under which the uniform legal information is formed. They consist (1) in the formation of teams of authors from different jurisdictions and (2) in a concept of the organisation of the work which distinguishes between editorial work and research, allowing the researchers to focus on the scientific part of the work. The first concept can be explained from the concept under which the European Commentary is prepared. It is based on teams of authors from different jurisdictions, who join their research work in order to produce the commentary as a legal publication of European nature. In order to produce the complex work of the European Commentary, they contribute to different functions: Some authors contribute the comments on certain articles of the instrument, whereas others take the responsibility of a "language author" for a certain language edition of the European Commentary. Each author contributes information and critical assessment from his or her jurisdiction. The European Commentary therefore is by nature the
joint work effort of a network of researchers, who together create a work of European dimension. The second concept can be explained with reference to the example of the formation of the unalex case collection. In general, the collecting and the editing of cases are typically the work of publishers but not necessarily that of researchers. In the field of uniform law, for the preparation of a well edited collection of cases regarding certain instruments, the contribution of researchers is instead indispensable. Other than in the practice of some of the above named specialised databases, it is however not necessary that editorial functions and research work are both provided by the same persons. On the contrary, a good organisation disburdens the researchers from tasks of a merely editorial character and allows them to focus on the scientific part of the preparation of the cases. In conclusion, unalex is essentially based on the joining of groups or networks of researchers for the development of the information on certain instruments of European and international uniform law; furthermore as to the form of organisation of the work, the editorial team of unalex will seek to cover those functions which are not necessarily of scientific character, allowing the teams of authors to focus on the necessary research work. If the large and complex character
of the international uniform legal information system is considered, which shall be developed, it becomes clear, that several and even many individual networks of researchers are needed in order to produce the European Commentary only for the most relevant uniform law instruments. As the formation of networks of researchers and the organisation and coordination of their work is a basic principle of unalex, the questioned arises whether unalex should become the focus of a European Research Network
of wider dimension and scope. That is however a question which goes beyond the reach of this essay.
Civil Procedure ________________________________
Problems of interpretation regarding the European Regulation on Service Prof. Dr. Rainer Hausmann*
I. Introduction 1. Purposes of service Service in civil proceedings is characterised by a tension between the right to administration of justice1 on one hand and the protection of defendants on the other hand. According to * Rainer Hausmann, Professor at the University of Konstanz (DE). 1 See §§ 261, 270 ZPO (German Code of civil procedure).
national procedural rules
, it is often the service of the statement of claim which leads to pendency. At the same time it serves the purpose of safeguarding procedural as well as material time limits2 and thus safeguards the claimant's right to administration of justice. On the other hand, it is only through the service of the statement of claim that the defendant learns about the proceedings instituted against him, 2 See § 262 ZPO; § 204(1) no. 1-3 BGB (German civil code).
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which gives him the opportunity to defend himself against the claim. Therewith, his right to a fair hearing as well as his right to a fair trial (see Article 103 German constitution; Article 6(1) ECHR) are safeguarded. The service of judgments or titles has the same function in enforcement proceedings. For the creditor, the service is a necessary prerequisite for the access to the debtor's assets by way of enforcement3 and gives the latter the possibility to defend himself against the imminent enforcement through legal remedies. The conflict of interests between the claimant's right to administration of justice and the protection of the defendant's right to a fair hearing by timely and effective information aggravates in international legal relations. The claimant is mainly interested in a fast service of the document instituting the proceedings to the defendant domiciled abroad, in order to assure the institution of the proceedings before the domestic courts.4 Moreover, the claimant is interested in sufficient documentation regarding the service to the foreign defendant, in order to ensure the required proof of service in case of a subsequent enforcement either domestically5 or in the state of the defendant's domicile.6 Not least, the claimant seeks to limit the costs incurred in international service, which he has to advance and which he has to bear in case service fails. On the other hand, the defendant's main objective is to be informed as comprehensively as possible about the proceedings instituted against him abroad. This especially presupposes that the defendant understands the writ served to him. One of the main problems of cross-border service is the translation of the documents into a language comprehensible for the defendant. As the defendant has to have enough time to prepare for his defence before the foreign court, due service affects the beginning of the time limit given to the defendant for entering an appearance (see Article 34(2) Brussels I Regulation). Last but not least the interests of the States involved in an international service have to be considered. While for a long time the law regarding international service was characterised by the apprehension of service as a sovereign act and thus the avoidance of interventions in the sovereignty of the State addressed was a priority,7 these interests in state sovereignty play a minor role in connection with the judicial cooperation between the member states
of the European Union
(see Articles 61, 65 EC).8 The interest of the parties to the proceedings in fast and safe information is now in the fore. At the same time, an effective cross-border service furthermore helps avoid 3 See § 750 ZPO. 4 The former problem within the scope of Article 21 Brussels Convention of the parties' rush to the courthouse which was decided by the efficiency of the postal services in the state of the defendant's domicile and which could be influenced by the parties only to a limited extent, has been significantly relaxed due to the autonomous definition of pendency within Article 30 of EC Regulation 44/2001 (Brussels I). 5 See §§ 182, 418 ZPO. 6 See Articles 34(2), 45 Brussels I Regulation. 7 See Siegrist, Hoheitsakte auf fremdem Staatsgebiet (1987); furthermore German Constitutional Court NJW 1995, 649. This concept is still at the basis of § 183 para. 1 ZPO where cross-border service of a document by post is only allowed if admitted by an international convention. 8 See HeЯ, Die Zustellung von Schriftstьcken im europдischen Justizraum, NJW 2001, 15, 16.
parallel proceedings in the States involved and thus serves the States' interest in procedural economy. 2. EU Regulation No. 1348/2000 on the Service Abroad During the second half of the 20th century cross border service of documents has been governed by the Hague Conventions on civil procedure of 1954 and on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (`the Hague Convention'). These conventions were replaced in legal relations between the Member States of the European Union except for Denmark9 by Council Regulation (EC) No. 1348/200010 (`the Regulation') which came into force on 31 May 2001. In particular, it improves the Traditional procedure
s of judicial assistance by providing for the discharge of requests for service directly between the competent authorities acting as transmitting agencies and receiving agencies on the basis of standard forms (Articles 2, 4 et seq. of the Regulation). In comparison to the Hague Convention, the Regulation furthermore facilitates language problems, because a translation into the official language of the receiving State is no longer necessary in every case.11 Furthermore, the Regulation is more generous than the Hague Convention, as it allows for other ways of service than by way of judicial assistance. Especially different from Article 10(a) Hague Convention direct service by mail can no longer be completely excluded by the Member States. Last but not least the Regulation renounces to the public policy
proviso provided for in Article 13
of the Hague Convention in cases of service between Member States.12 a) Scope of application According to Article 1(1) the Regulation is only applicable to civil and commercial matters. This legal term should be interpreted autonomously as in other Regulations in the field of European law of civil procedure. In this regard reference can be made to the jurisprudence of the ECJ regarding Article 1 of the Brussels Convention.13 There doesn't seem to be a necessity for interpreting the term "civil and commercial matters" within Article 1 of the Regulation on Service Abroad more broadly than in other areas of European law of civil procedure.14 For the purpose of legal certainty and legal clarity, this term should be interpreted in a consistent way in all European acts on the subject of International Law
of civil procedure.15 9 See below sub a. 10 OJ EC 2000 No. L 160, at 37. 11 See below sub. III. 12 See HeЯ (supra note 8), NJW 2001, 15, 17 et seq. 13 See for Article 1(1) Brussels Convention, ECJ 14 October 1976 C29/76 Eurocontrol,  ECR 1541 ; ECJ 16 December 1980 C814/79 Rьffer  ECR 3807; ECJ 21 April 1993 C-172/91 Sonntag  ECR I-1963. 14 See Jastrow, in: Gebauer/Wiedmann, Zivilrecht unter europдischem Einfluss (2005), Chapter 28, Regulation on Service para. 26. 15 See also Rauscher/Heiderhoff, Europдisches Zivilprozessrecht, volume II, (2. ed. 2006), note before Article 1 Regulation on Service para. 31.
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According to its Article 1(1), from a territorial point of view
, the Regulation on Service Abroad is applicable in cases where a judicial or extrajudicial document has to be transmitted from one Member State to an other for the purpose of being served there. An exception is only made for Denmark, which does not participate in legal acts on the basis of Articles 61 and 65 EC-Treaty in the field of judicial cooperation due to the reservation it declared regarding the 1997 treaty of Amsterdam. As the lack of participation of Denmark in the Regulation has led to significant problems regarding the service of titles from Denmark in other Member States,16 the Kingdom of Denmark has concluded on 19 October 2005 a bilateral convention with the EU on the basis of the Regulation on Service Abroad.17 This convention will enter into force on 1. July 2007 as will the parallel Convention implementing the Brussels I Regulation18. 19 Therewith, the international law relating to service in relation to Denmark has been substantially adjusted to the provisions within the Regulation on Service Abroad which are applicable between the other Member States. Due to its legal character as Regulation, the EC Regulation on Service Abroad is directly applicable in the Member States of the EU since its entry into force on 31. May 2001 and it supersedes rules of national law in the field of international service.20 Furthermore, according to Article 20(1), the Regulation also takes precedence over all multi- and bilateral Conventions which have been concluded on the subject of international law on service. This priority is especially effective vis a vis the provisions of the 1965 Hague Convention. However, according to Article 20(2) of the Regulation, the latter does not impede the Member States from upholding existing bilateral conventions which have been entered into in order to further simplify and speed up the transmission and service, even under the application of the Regulation, provided that they are consistent with the Regulation. So far, the Member States have only availed this possibility sporadically.21 b) Significant innovations The Regulation on Service Abroad is oriented in its concept by the Hague Convention. Thus, the service of judicial documents is explicitly determined in chapter II (Articles 4-15). Chapter III then globally refers to these provisions regarding the service of extrajudicial documents (Article 16). More clear than the Hague Convention, the Regulation distinguishes between the transmission and service by way of judicial assistance on one hand (Section 1, Articles 4-11) and other ways of transmission and service on the other hand (Section 2, Arti- 16 cf. Regarding the refusal of acceptance of the service of default judgments from Denmark in Germany OLG Hamm IPRax 2005, 146 = FamRZ 2004, 1593; OLG Dьsseldorf IPRax 2005, 148 = RIW 2004, 389; criticism by Fogt/Schack, Keine Urteilszustellung im deutschdдnischen Rechtsverkehr?, IPRax 2005, 118 et seq. 17 OJ EC 2005 No. L 300, at 55. 18 OJ EC 2005 No. L 299, at 62. 19 OJ EC 2007 No. L 94, at 70. 20 In German law § 183(3) ZPO expressly clarifies this point. 21 cf. in this regard Rauscher/Heiderhoff (supra note 15), Article 20 EuZVO para. 1 et seq.
cles 12-15 of the Regulation). aa) Service by way of judicial assistance Especially the implementation of direct transmission between transmitting and receiving agencies serves the improvement and speeding up of international service between Member States22 sought by the Regulation (Article 4 (1)). Therewith, the inconvenient path through central government bodies, provided for in Article 2 of the Hague Convention, is waived. Now, the German court which according to § 1069 (1) of the German Civil procedure code is competent for the service to a foreign country, may directly call on the foreign receiving agency.23 The institution of central bodies in each Member State is retained under the Regulation; however, according to Article 3 they only have a supporting function, particularly in cases of ambiguity regarding the competent agency in the receiving State. Especially Article 4(2) of the Regulation serves the speeding up of service, according to which the transmission of documents 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. The standard form in the Annex to the Regulation, which, according to Article 4(3), should be used by the transmitting agency and which has to be principally filled out in the official language of the receiving Member State in order to prevent problems of understanding, further facilitates service. Lastly, Article 4(4) of the Regulation waives the necessity of any legalisation or other formalities and hence opens the possibility of service by way of an electronic document (e-mail) or by fax.24 bb) Other ways of transmission Besides service by way of judicial assistance, the second section of the Regulation provides for four further possibilities for the transmission and service of documents, namely: - transmission to agencies of another Member State as designated pursuant to Article 2 or 3 for the purpose of service by way of consular or diplomatic channels (Article 12). - direct service by diplomatic or consular agents of the transmitting State without application of any compulsion (Article 13). - direct service by post (Article 14). - direct service through the judicial officer
s, officials or other competent persons of the Member State addressed at the instance of one of the participants in proceedings in the transmitting State. 22 cf. recitals 2 and 6 re. Regulation on Service. 23 cf. thereto Lindacher, Europдisches Zustellungsrecht, ZZP 114 (2001) 179, 183 et seq., HeЯ, Neues deutsches und europдisches Zustellungsrecht, NJW 2002, 2417, 2422; Stadler, Die Reform des deutschen Zustellungsrechts und ihre Auswirkungen auf die internationale Zustellung, IPRax 2002, 471, 473; Jastrow (supra note 14), chapter 28 para. 44 et seq. 24 cf. Stadler, Neues europдisches Zustellungsrecht, IPRax 2001, 514, 517; Schlosser EU-Zivilprozessrecht (2nd ed. 2003), Article 4 EuZVO para. 1; Jastrow (supra note 14), chapter 28 para. 86.
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Of the four mentioned ways of transmission, especially direct service by post according to Article 14 of the Regulation has significant practical importance; it will be referred to the problems involved with it at a alter point.25 In contrast, the service by consular or diplomatic way or by diplomatic/consular agencies of the transmitting State according to Articles 12, 13 of the Regulation are relicts from the 1954 Hague Convention on civil procedure, which have no reason to exist in a unified European judicial territory. Thus, in the course of a reformation of the Regulation, they could easily be striken out;26 furthermore, the Federal Republic
of Germany only allows service according to Article 13 of the Regulation in its sovereign territory towards nationals of the transmitting State.27 Moreover, the direct service at the instance of the parties or other persons interested according to Article 15 of the Regulation to persons residing in another Member State cannot be used in the context of proceedings which are pending before a German court, as German law, even after the reformation of the law on service in 2001, continues to adhere to the principle of service ex officio at the instance of the court (§ 166(2) of the German civil procedure code). Last but not least, so far, service at the instance of the parties of proceedings pending in another Member State on German sovereign territory is precluded to a large extent,28 as the Federal Republic of Germany has used the reservation provided for in Article 15(2) of the Regulation.29 3. Criticisms Despite of undisputable improvements vis-а-vis the provisions of the Hague Convention, literature mostly appraises the Regulation on Service in a negative way.30 Apart from a variety which is unusual for an EC Regulation as far as the options of the Member States to deviate from single Articles of the Regulation (e.g. Article 2(3), 9(3), 13(2), 15(2), 19(2)) are concerned, the criticism is mainly fused by three problems, which have not been solved in a satisfactory way in the Regulation and continue impeding cross border service between Member States. The first problem regards the question of distinction between effective service abroad and fictious inland service which has been disregarded in the Regulation as well as in the Hague Convention (see II.). A second problem regards the unsuccessful regulation of language difficulties in Article 8 of the Regulation as well as the closely related question, whether and how infringements 25 cf. under IV. 26 Likewise HeЯ (supra note 8), NJW 2001, 15, 19; Stadler (supra note 24), IPRax 2001, 514, 516. 27 cf. § 1067 ZPO. 28 An exception is made in relation to the UK as well as to the other Member States of the convention between Germany and Great Britain on mutual legal assistance from 20. 3. 1928 (see Jayme/Hausmann, Internationales Privat- und Verfahrensrecht (13th ed. 2006), no. 228 note 2). 29 cf. § 1071 ZPO. 30 cf. Lindacher (supra note 23), ZZP 114 (2001) 179, 185, 193; Gottwald, Sicherheit vor Effizienz? Auslandszustellung in der Europдischen Union in Zivil- und Handelssachen, in: FS Schьtze (1999) S. 225 et seq., Stadler (supra note 24), IPRax 2001, 514, 521; HeЯ (supra note 8), NJW 2001, 15, 19 et seq.
can be subsequently remedied (see III.). The third problem regards direct service by post which has been provided for in Article 14 of the Regulation in a very elementary way; the scarce wording of Article 14(1) of the Regulation noticeably contradicts the practical importance of this particular way of service (see IV.). Meanwhile, the Commission has reacted to the persisting problems of cross border service and on 11.07.2005, it presented a recommendation for a Regulation for the amendment of the Regulation on Service.31 Subsequently, reference will be made to this recommendation whenever factually coherent. II. Boundaries of fictitious domestic service within the scope of the Regulation on Service 1. Fictitious domestic service and the Hague Convention on Service a) Initial Situation Since, according to its Article 1, the 1965 Hague Convention on Service is only applicable where a document has to be transmitted abroad "for the purpose of service", an application in cases of fictitious domestic service, as e.g. the "remise au parquet" in French law, is out of question. In such cases, the transmission of the document to the defendant domiciled abroad has only the purpose of informing the defendant about the domestic service which has already been accomplished. The question, at what point in time a document can be considered as transmitted for the purpose of service abroad has to be determined solely according to the provisions of the lex fori.32 However, with reference to the broader French wording of Article 1(1) of the Hague Convention33, the rules of the convention are extended to the transmission of mere notifications.34 Accordingly, in previous practice after an accomplished filing of the document with the French public prosecutor's office, the addressee was regularly notified by post (Article 686 n.c.p.c.) as well as by way of judicial assistance according to the Hague Convention (Article 685(2) n.c.p.c.).35 The service by post of the notification required by French law failed under the Hague Convention in legal relations between France and Germany due to Germany's objection to Article 10(a) of the Hague Convention. However, since according to French law, the effectiveness of service only depended on the filing of the document with the public prosecutor's office and of the notification of the addressee by post, infringements of 31 COM (2005) 315 final/2. 32 BGH RIW 1999, 456; OLG Kцln RIW 1989, 815; OLG Oldenburg IPRax 1992, 169; Schlosser (supra note 24), Article 1 of the Hague Convention para. 5 and further chapter. 33 "(...) droit кtre transmit a l'йtranger pour y кtre signifiй ou notifiй." 34 OLG Dьsseldorf IPRax 1985, 289 with annotation by Schuhmacher 265; Rauscher, Strikter Beklagtenschutz durch Art. 27 Nr.2 EuGVЬ, IPRax 1991, 155; Schack, Internationales Zivilverfahrensrecht (4. ed. 2006), para. 610 ff.; Schlosser (supra note 24), Article 1 of the Hague Convention para. 8; contrary OLG Koblenz, IPRax 1988, 97, 98 with annotation by Dubois 85; OLG Oldenburg IPRax 1992, 169 with annotation by Nagel 150. 35 Schlosser (supra note 24), Article 1 of the Hague Convention para. 6; Kondring, Die Heilung von Zustellungsfehlern im internationalen Zivilrechtsverkehr (Diss. Mьnster 1995) at 144 et seq.
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the requirement of a translation only provided for in case of service by way of judicial assistance in Article 5(1) of the Hague Convention did not lead to the defectiveness of service.36 As a consequence, for the purpose of the 1968 Brussels Convention, regarding the recognition and enforcement of French (default) judgments in another Member State, duly service within the meaning of Article 27(2) of the Brussels Convention had to be determined solely on the basis of the provisions regarding the `remise au parquet'. The additional notification by way of judicial assistance and the abidance to protective provisions in favour of the defendant in default according to Article 15 of the Hague Convention only were relevant under the aspect of timely service within the meaning of Article 27(2) of the Brussels Convention.37 b) The ECJ's Scania Judgment from 13.10.2005 In its judgment re: Scania from 13.10.2005, the ECJ has clarified to a certain point the problem of (fictitious) domestic service within the system of European law of civil procedure.38 The case involved the enforcement of a default judgment by the Cour d'appel d'Amiens, against the German defendant. The service of the document instituting the proceedings was effected by lodging it with the public prosecutor's office in Amiens on the basis of a "remise au parquet". As the German defendant refused to accept the statement of claim due to the lack of a translation into German, the statement of claim had been transmitted anew to the defendant by way of post again, without a translation. The OLG Munich, which had been seised for the enforcement of the French default judgment had referred the question to the ECJ for a preliminary ruling, whether duly service according to Article 27(2) of the Brussels Convention required that in matters relating to service to a defendant domiciled in another Contracting State to the Brussels Convention, the conventions which were effective between the Contracting States were abided to. Alternatively, the OLG Munich had sought a statement of the ECJ regarding the compliance of service by "remise au parquet" with Article 12 EC.39 With reference to its former jurisprudence regarding the interpretation of Article 27(2) of the Brussels Convention, the ECJ justly emphasizes that the intended simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals cannot be attained by undermining in any way the right of the defendant to a fair hearing. Article 27(2) of the Brussels Convention serves this aim, as it excludes the recognition and enforcement of a judgment where the defendant has not been given the opportunity to defend himself in the State of the court of the original pro- 36 Kondring (supra note 35), at 151. 37 Schlosser (supra note 24), Article 15 of the Hague Convention para. 2; Schack (supra note 34), para. 610; Geimer, Europдisches Zivilprozessrecht (1. ed. 1997), Article 27 Brussels Convention paras 114 and 118. 38 ECJ 13 October 2005 C-522/03 Scania Finance France S.A. v Rock- inger GmbH & Co.,  ECR I-08639 =  EuLF I-217; IPRax 2006, 157 with annotation by Stadler 116. 39 OLG Munich IPRspr. 2003 no. 185.
ceedings. The Brussels Convention does not itself harmonise the diverse systems of the Member States regarding the service of judicial documents abroad. However, Article IV(1) of the Protocol to the Brussels Convention refers to the conventions which are effective between the Contracting States. The ECJ makes the conclusion, that in cases where there is a convention regarding the service of judicial documents between the State of the original proceedings and the State in which enforcement is sought, the service of documents which institute the proceedings is only considered as duly according to Article 27(2) of the Brussels Convention, if the provisions of the convention have been abided to. Regarding service proceedings, Article IV of the Protocol to the Brussels Convention contains a final regulation. Hence the ways of service provided for by the national law of the State of the original proceedings can only be considered where neither service according to paragraph 1 nor paragraph 240 of Article IV of the Protocol to the Brussels Convention is possible.41 As an argument, the ECJ accurately refers to the fact that duly service according to the Brussels Convention has to be determined by the courts of the State of the original proceedings (Article 20(2)) as well as by the courts of the State in which recognition is sought (Article 27(2)); for the efficiency of this double control it is indispensable that both courts preferably took the same service provisions as a basis for their decision.42 Since Germany as well as France are Contracting States to the Hague Convention, service would thus have to be effected according to the provisions of this convention in order to be considered duly service within the meaning of Article 27(2) of the Brussels Convention.43 This apodictic approach by the ECJ could indicate that the ECJ has declared the "remise au parquet" in relations between the Contracting States to the Hague Convention categorically inadmissible. Therewith the ECJ would exceed its jurisdiction to interpret, which only relates to Article IV of the Protocol to the Brussels Convention, and not however to the conventions regarding law of service between Contracting States referred to in Article IV. The ECJ is disallowed to interpret Article 1 of the Hague Convention in a restrictive way as meaning that (fictitious) domestic service according to the system of "remise au parquet" in relations between Contracting States is inadmissible.44 The ECJ's judgment must rather be interpreted as meaning that already "duly service" (not just "timeliness") depends on the compliance of the notification of the defendant domiciled in another Contracting State to the Brussels Convention with the requirements of the Hague Convention. Thus, the German "exequatur judge" can already deny duly service according to Article 27(2) of the Brussels Con- 40 Service according to Article IV(2) of the Protocol to the Brussels Convention is out of question in cases of service to parties domiciled in Germany due to the Federal Republic of Germany's objection, cf. BGBl. 1972, II, 773. 41 ECJ (supra note 38), paras 19-22. 42 ECJ (supra note 38), para. 26. 43 ECJ (supra note 38), para. 27 et seq. 44 Accurately: Stadler, OrdnungsgemдЯe Zustellung im Wege der remise au parquet und Heilung von Zustellungsfehlern nach der EuZVO, IPRax 2006, 116, 118 et seq. reference to the Advocate General's opinion from 17 March 2005, n. 32.
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vention where the notification, which is necessary pursuant to French law, has not been transmitted to the German defendant pursuant to the provisions in Article 5 of the Hague Convention; insofar, as mentioned above, the mere transmission by post does not suffice with regard to Germany's objection to Article 10(a) of the Hague Convention.45 2. The significance of the judgment in Scania after the entry into force of the Regulation on Service and of the Brussels I Regulation Following the amendments of the relevant European legal bases regarding law on service as well as enforcement law, the dispute regarding the interpretation of the ECJ's judgment in Scania outlined above has become practically irrelevant. EC Regulation no. 44/2001 (Brussels I) which superseded the Brussels Convention on 1. 3. 2002 does no longer contain a rule which corresponds to Article IV of the Protocol to the Brussels Convention, as since 31.05.2001, in the field of law on service between Member Sates the Regulation on Service has become directly applicable law which prevails over conventions concluded between the Member States (Article 20 Regulation on Service). The Regulation on Service does not solve the problem of the admissibility of domestic service to addressees domiciled in another Member State.46 Due to the service by post, which has now been declared categorically admissible in Article 14 of the Regulation on Service, the notification of the defendant domiciled in another Member State required by French law on service, can now be effected by way of post according to the Regulation on Service; therewith, the transmission by way of judicial assistance according to Article 5 of the Hague Convention, which was required additionally in relations between France and Germany due to Germany's objection to Article 10(a) of the Hague Convention, has become unnecessary. As, according to the accurate approach, the mere notification falls within the scope of Article 1 of the Regulation,47 the requirements for a translation specified according to Article 14(2) of the Regulation by each State addressed must already be considered at the time of transmission by post, Article 686 n.c.p.c.. Where this rule is infringed, the service already has to be considered invalid by the French court; in that case, the latter has to stay the proceedings according to Article 19(1) of the Regulation. Furthermore, an important amendment has been made in European law regarding the recognition of judgments, as Article 34(2) of the Brussels I Regulation unlike the anteceding provision of Article 27(2) of the Brussels Convention no longer prescribes a review of duly service of default judgments. For the purpose of safeguarding the defendant's right to be heard, the "exequatur" judge only has to determine according to Article 34(2) of the Brussels I Regulation, whether the document instituting the proceedings has been served in sufficient time and in such a way as to enable the defendant to 45 Stadler (supra note 44), IPRax 2006, 116, 118. 46 Geimer, Internationales Zivilprozessrecht (5. Aufl. 2005) para. 2074 a; HeЯ (supra note 8), NJW 2001, 15, 19; Stadler (supra note 24), IPRax 2001, 514, 516 et seq. 47 Stadler (supra note 44), IPRax 2006, 116, 120.
arrange for his defence. Even though in cases of the recognition of a judgment it no longer depends on whether the service procedure has in all respects complied with the Regulation on Service, as Article 34(2) of the Brussels I Regulation requires an autonomous minimum standard isolated from the law on service,48 it does not follow that duly service no longer has any significance. On the contrary, duly service indicates that the defendant was given enough opportunity to defend himself.49 On the other hand, an infringement of the provisions of the Regulation on Service causes enough grounds for the pursuit of the question whether the defendant had an adequate possibility to defend himself. Where as in the Scania case the provisions of the State addressed regarding the requirement of a translation for direct service by post according to Article 14(2), 23(1) of the Regulation on Service have not been followed, it is seriously questionable whether the defendant, who has to take care of the translation himself within the time period for the preparation of his defense, can still react timely to the action. The disregard of the requirement of a translation can thus very well pose an obstacle to the enforcement of a foreign default judgment according to Article 34(2) of the Brussels I Regulation.50 III. Language problems and the infringement of the requirement of translation according to the Regulation on Service The question in which circumstances a translation has to be attached to the document to be served according to the Regulation on Service, and what effect the lack of such a translation has on service cannot be answered easily. 1. Interpretation of Article 8(1) of the Regulation on Service According to Article 8(1) of the Regulation on Service, the addressee may refuse to accept a document to be served if it is in a language other than the official language of the Member State addressed (lit. a),51 or other than a language of the Member State of transmission which the addressee understands (lit. b). The receiving agency shall inform the addressee about his right to refuse acceptance. It follows that a translation of the document to be served into the language of the Member State addressed is not required in every case in order to achieve due service. In fact, in cases where the addressee demonstrably understands the lan- 48 Rauscher/Heiderhoff (supra note 15), Introduction to the Regulation on Service para. 14; Roth, IPRax 2005, 438, 439 contrary OLG Celle IPRax 2005, 450, 451. 49 Rauscher/Leible, Europдisches Zivilprozessrecht, vol. I (2. ed. 2006), Article 34 Brussels I Regulation para. 31; Stadler (supra note 44), IPRax 2006, 116, 120. 50 Accuratley: Stadler (supra note 44), IPRax 2006, 116, 120; Roth, IPRax 2005, 438, 439; Kropholler, Europдisches Zivilprozessrecht (8. ed. 2005) Article 34 Brussels I Regulation para. 40; Thomas/Putzo/HьЯtege, ZPO (28. ed. 2007), Article 23 Brussels II Regulation para. 2. 51 Where the State addressed has several official languages, the official language of the place where service shall be effected is relevant. cf. thereto LG Berlin 20. 8. 2002 (case number 15 O 562/01): The service of an interim injunction in German language on a merchant seated in the German language area of Belgium is considered due service.
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guage of the transmitting Member State , Article 8(1) of the Regulation on Service allows for a faster service, as in that case a translation of the document which often tends to be time consuming and costly - can be waived. The acceleration of service intended by this rule however is achieved by running a significant risk of judicial insecurity. Article 8(1) of the Regulation does not contain sufficient criteria in order to determine the question when the applicant may rely on a sufficient linguistic knowledge of the addressee.52 Due to this insecurity, it is partly recommended to attach a translation into the official language of the State addressed in case of a doubt.53 In part, in order to determine sufficient linguistic knowledge reference is made to the individual linguistic knowledge of the addressee. Where the latter denies having the linguistic knowledge alleged by the applicant, he has the burden of proof regarding his linguistic knowledge, as Article 8(1) of the Regulation on Service only grants him a right to refuse acceptance.54 The significant problems in determining the individual linguistic knowledge of the addressee service speak against such an interpretation. If evidence regarding the linguistic knowledge of the defendant domiciled abroad already had to be gathered already in this phase of the proceedings, the acceleration of service aimed at by Article 8(1) of the Regulation would be twisted around. Furthermore, the court in the original State handling service may not make a definitively binding determination of the addressee's linguistic knowledge. However, where the court seised for the enforcement of the judgment in another State unlike the court of the original proceedings would find that the defendant's linguistic knowledge is insufficient, the claimant would be placed at a disadvantage. Due to the infringement of the defendant's right to be heard according to Article 34(2) of the Brussels I Regulation, he could be barred from enforcing the judgment in another State and from bringing new proceedings in the State of the original proceedings due to res judicata.55 Thus, a determination of the addressee's linguistic knowledge on the basis of general and objective criteria is preferable. Accordingly, in the case of service to a natural person sufficient linguistic knowledge can be assumed, where the addressee is a citizen of the transmitting State or another State which has the same official language.56 However, where service is effected to a citizen of the State addressed who is domiciled 52 For criticism see Bajons, Internationale Zustellung und Recht auf Verteidigung, in: FS Schьtze (1999) S. 49, 71; Lindacher (supra note 23), ZZP 114, 179, 187; Stadler (supra note 24), IPRax 2001, 514, 517. 53 See Sharma, Zustellungen im Europдischen Binnenmarkt (2003) S. 100; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 3; likewise Stadler (supra note 24), IPRax 2001, 514, 515 (Waiver of translation only in cases where refusal of acceptance would constitute abuse of law); contrary Jastrow (supra note 14), Chapter. 28 para. 155. 54 See Schlosser (supra note 24), Article 8 Regulation on Service para. 1; contrary Lindacher (supra note 23), ZZP 114, 179, 187; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 11. 55 cf. hereto Bajons (supra note 52), in: FS Schьtze (1999) 49, 54; G. Geimer, Neuordnung des internationalen Zustellungsrechts, p. 93 et seq.; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 6. 56 See Bajons (supra note 52), in: FS Schьtze (1999) S. 49, 73; Lindacher (supra note 23), ZZP 114, 179, 187. cf. for same approach § 1068 (2) p. 2 no. 2 ZPO.
there, it can be assumed that he has no knowledge of the language of the transmitting State, unless he has spent a significant period of time in that State.57Correspondingly, in the case of service to a legal entity the existence of sufficient linguistic knowledge cannot be based on the individual linguistic knowledge of the board member authorised to represent the entity or of the latter's executive director;58it should rather suffice that the document is composed in the language which constitutes the official language at the place of the active centre of administration or at the place where the registered office is situated.59 Moreover, the requirements are met where the document is composed in the language in which the contract was negotiated and concluded.60 Building on such general criteria is also advantageous where the addressee of the service could not be met in person. If the individual linguistic knowledge of the addressee was relevant, in cases where the document is not conceived in the language of the State addressed, only the addressee could personally decide whether he was willing to accept the document. The risk of not meeting the addressee in person would be borne by the party applying for service; even where the latter waived a translation only on the basis of the addressee's linguistic knowledge that he is aware of. Certainly, the building on the aforementioned general criteria can only establish an assumption of sufficient linguistic knowledge of the addressee, which can be refuted in individual cases. On the other hand, due to the right to be heard, the addressee has to be granted the possibility to call evidence in rebuttal of such an assumption and to prove that he does not know the language of the transmitting State. He can only do so by refusing acceptance in the original proceedings, not however in enforcement proceedings in another State. 2. Scope of the requirement of translation according to Article 8(1) of the Regulation on Service a) Previous practice Regarding the quality requirements for the translation of the document instituting the proceeding, previous German practice was very generous. Concerning the summons to a hearing, in order to recognise a judgment according to Article 27(2) of the Brussels Convention the BGH considered it sufficient that the addressee was able to extrapolate the signification of the summons as well as the time and date of the hearing from the context.61 This is acceptable in cases of formal documents
as a 57 OLG Dьsseldorf FamRZ 2006, 130 = IPRax 2006, 270 with annotation by Rцsler 236. 58 See Jastrow (supra note 14), chapter 28 para. 146. 59 See Lindacher (supra note 23), ZZP 114, 179, 187; Stadler (supra note 24), IPRax 2001, 514, 518 in Fn. 49. According to Schlosser (supra note 24), Article 8 Regulation on service para. 2, it shall suffice that any of the chief executives masters the language. 60 See also Stadler (supra note 24), IPRax 2001, 514, 518; Rauscher/Heiderhoff (supra note 15), Article 8 Regulation on Service para, 7. more restrictively OLG Munich IPRspr. 2003 no. 185, which held that the mastering of the business language is not enough but that also knowledge of the language of the proceedings is necessary, cf. see also below at 2b. 61 BGH IPRax 2002, 395 with annotation Geimer 378; likewise OLG Nьrnberg IPRax 2006, 38.
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summons to a hearing since Article 34(2) of the Brussels I Regulation states even less prerequisites for due service than Article 27(2) of the Brussels Convention. In contrast, significantly higher demands are made on translations of statements of claim or judgments within the scope of the Brussels I Regulation. Insofar, the mere abstract of the important contents of the document in a language which the addressee understands is by far not enough.62 b) The BGH's reference to the ECJ for a preliminary ruling from 21.12.2006 The ECJ's answer to the questions regarding the interpretation of Article 8(1) of the Regulation referred to it by the BGH for a preliminary ruling by an order from 21. 12. 200663, is expected to clarify the requirements for the translation of documents instituting the proceedings. In this case, the German claimant commenced proceedings against the defendant, an English company having its seat in London (UK) seeking damages due to deficient planning on the basis of an architects' contract. The defendant had committed itself in the contract to perform planning services regarding a building project in Berlin (DE). The architects' contract provided inter alia: "the services have to be performed in German language. The correspondence between the parties, agencies and public institutions
shall be written in German." In order to effect service to the defendant, the claimant had lodged copies of the statement of claim as well as of all attachments to which reference was made in the statement of claim, with the LG Berlin. By way of judicial assistance, the latter had requested service in London of the statement of claim and of the attachments. After the defendant had refused acceptance of the claim due to the lack of an English translation, it was served in London with the English translation of the statement of claim as well as with the annexes which were not translated. The defendant refused the acceptance of the claim anew making reference to Article 8(1) of the Regulation on service, since the annexes had not been translated into English. On appeal, the court held that service of the claim had been duly effected. The BGH is inclined to agree with that legal point of view. However, as it still had doubts about the interpretation of Article 8(1) of the Regulation, it referred three questions to the ECJ for a preliminary ruling. Firstly, the BGH underlines that the possibility to refuse acceptance of a document which lacks translation also serves the protection of the addressee against procedural disadvantages, which the latter could suffer because he cannot understand the information served on him as it is written in a language that the addressee does not know. Accordingly, from the point of view of the BGH, service is generally invalid where the defendant rightly refused acceptance of the document to be served according to Article 8(1) of the Regulation due to insufficient linguistic knowledge and where the claimant as in this case 62 Accurately: Rauscher/Heiderhoff (supra note 15), Article 8 para. 2. 63 In this issue at 22, and in Section II at 19.
refuses to produce a translation.64 The appellate court had not deemed a translation of the attachments to the statement of claim necessary, as they only contained a clarification of the implementations in the statement of claim regarding the deficiency of the architect services rendered by the defendant. Quite rightly, the BGH does not share this opinion. The BGH holds that even the withholding of details in the attachments can lead to a lasting negative impact on the defendant's information interest, as the defendant's decision on its defence strategy can also depend on the additional information contained in the attachments. The latter had the purpose of making the deficiencies of the construction plan and the costs which the claimant incurred for the correction of the defects more understandable. Accordingly, the defendant would generally already have a right to refuse acceptance according to Article 8(1) of the Regulation where only the attachments are not in the official language of the Member State addressed or a language of the Member State of transmission which the addressee understands. Alternatively, the appellate court had found due service on the ground that the parties had expressly agreed in the contract that correspondence should be maintained in German and that the attachments contained correspondence in terms of this agreement. Even in this point, the BGH did not follow the appellate court's point of view. It held that the contractual agreement regarding the parties' obligation to maintain correspondence in German does not indicate that the defendant understands the language fort he purpose of the Regulation. The right to refuse acceptance according to Article 8(1)(b) of the Regulation on Service cannot be denied with reference to a mere assumption regarding the linguistic knowledge of the defendant. In fact, it is only crucial whether the addressee of the document truly understands the language. It seems that with this determination the BGh wanted to establish an individual point of view regarding linguistic knowledge according to Article 8(1)(b) of the Regulation on Service. The mere circumstance that the addressee agreed in the exercise of his business activity in a contract with the applicant that correspondence was to be conducted in the language of the Member State of transmission should not concede the right to the claimant to plead sufficient linguistic knowledge within the meaning of Article 8(1)(b) of the Regulation. Instead, it depends on the individual linguistic knowledge of the persons authorised to represent the defendant company. Therewith however the requirements regarding the addressee's right to be heard are exceeded. Rather, the parties to an international agreement should also be granted the right to determine the relevant language for services according to Article 8(1)(b) of the Regulation in an autonomous way. Ultimately, the BGH comes to the same conclusion by denying the English defendant a need for protection under the particular circumstances. Even according to Article 8(1) of the Regulation the addressee does not have a right to refuse acceptance where his need for information can be satisfied in another way than by service of a translation. This rule should 64 Regarding the possiblity of rectification by the claimant's posterior presentation of the translation, see below at 3.
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also apply where the addressee has stipulated within an independent agreement that correspondence should be maintained in a specific language. Such an arrangement regarding the relevant contractual language serves a smooth performance of the agreement and also has to retain importance in case of a legal dispute between the parties. The purpose pursued by Article 8(1)(b) of the Regulation, to accelerate the service procedure, can only stand back where the addressee of the service has an exceptional need for protection. Such a need however lacks where the defendant as in the present case agreed with the foreign contracting partner in the exercise of his business activity that correspondence was to be conducted in a specific language. 3. The legal consequences of a justified refusal of acceptance Where a translation necessary according to Article 8(1) of the Regulation is not attached to the document to be served and the addressee justly refuses acceptance due to that reason,65 the question arises which legal consequences follow from such a justified refusal of acceptance. This question is also connected with the more general problem of curing defects of service according to the Regulation on Service. The significance of this question has decreased in the course of the replacement of the Brussels Convention by the Brussels I Regulation as, unlike Article 27(2) of the Brussels Convention, Article 34(2) of the Brussels Regulation does no longer require due service.66 However, due service remains important for the determination of the court of first instance regarding the question whether the defendant was granted a right to a fair hearing and whether the claimant has adhered to the deadlines imposed on him. a) The ECJ's Leffler-Judgment from 8. 11. 2005 In its judgment in Leffler, the ECJ has once again failed to answer the question as to who should determine the prerequisites for a sufficient linguistic knowledge of the addressee according to Article 8(1)(b) of the Regulation on Service and which criteria should hereby be taken as a basis. However, the ECJ has at least clarified the question regarding a possible rectification of service defects, in particular of infringements of the need for a translation according to Article 8(1) of the Regulation. Although Article 8 of the Regulation does not expressly state the legal consequences which flow from refusal of a document by its addressee, the ECJ rejects to conclude a nullity of service. Rather, the ECJ deduces from Article 8(2) of the Regulation, which grants the addressee the right to request a translation of the document served on him, that generally there should be a possibility for a rectification.67 Espe- 65 Where the addressee wrongly refuses to accept service, recourse should be taken to the lex fori, i.e. in Germany §179(2) ZPO, as there is no relevant provision in the Regulation; accordingly, the document is considered as served at the point in time of the refusal of acceptance, cf. Schlosser (supra note 24), Article 8 of the Regulation on Service para. 5; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 16; Jastrow (supra note 14), Chapter 28 para. 142. 66 cf. above II.3. 67 In this sense see de Lind von Wijngaarden-Maack, IPRax 2004, 212, 216 et seq.
cially the aim to accelerate service between Member States pursued by Article 8 of the Regulation supports that point of view. If in cases of an infringement of Article 8 of the Regulation any kind of rectification would be precluded, the practical benefit of the provision would be taken away as the addressor would be unable to take the risk of serving an untranslated document.68 The conclusion that there should be a principal possibility to rectify infringements against the need for a translation according to Article 8(1) of the Regulation is drawn by the ECJ as a basic principle of European law by way of an autonomous interpretation of the Regulation. The ECJ expressly declines a recourse to the national law of the Member State addressed or of the Member State of transmission due to the uniform application of the law in the Member States intended by the legal form
of the Regulation.69 As the Regulation does not contain uniform rules regarding the rectification of defects of service, the ECJ leaves it to national law to shape the means of rectification of defects of service in detail. These means should be applied by the competent courts in a way that on the one hand the effectiveness of Community law and on the other hand the addressee's right to a fair hearing are safeguarded.70 The lack of a translation can be rectified if after learning about the addressee's refusal of acceptance, the transmitting agency immediately provides without delay a translation according to Article 4(1) of the Regulation. The ECJ deems a period of one month from the day of reception of the notification regarding the refusal of acceptance adequate; in particular cases the time period can be prolonged by the national courts, especially in cases of very long documents.71 Where a defendant who has rightly refused the acceptance of a document instituting the proceedings according to Article 8(1) of the Regulation, does not appear in the proceedings, the court shall stay the proceedings according to Article 26(2) of the Brussels I Regulation and Article 19(1) of the Regulation on Service until it is proven that the defectiveness of the document has been rectified by the sending of a translation and that this took place so timely that the defendant had the opportunity to prepare for his defense.72 Insofar as time limits have to be kept through service the ECJ comes out in favour of an adoption of the double-date system within Article 9 of the Regulation on Service. Where the point in time of service is relevant for the applicant (e.g. for the interruption / suspension of the prescription period by a timely institution of proceedings) the applicant may invoke the effect of the original service provided that the defect of service is rectified by providing a translation without further delay. In contrast, the addressee remains protected by the relevant point in time in which the addressee not only took notice of the served document but in which he also was able to understand the document. Hence, it is the point in time in which the defendant received the translation of the document 68 ECJ see paras 37-42. 69 ECJ see paras 43-46. 70 ECJ see paras 49-52. 71 ECJ see para. 64. 72 ECJ see para. 68.
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which is relevant for the running of the time limits regarding entry of appearance and legal remedies.73 b) Criticisms The ECJ's Leffler-Judgment can be insofar agreed with as it finds that the problem regarding the possibility of a rectification of a defect of service within the scope of the Regulation on Service can only be regulated in a uniform way. A recourse to national law regarding this question which has significant relevance for the effectiveness of the Regulation on Service would not only contravene the aim of unifying cross-border service within the European Union but would also present the addressee of the document to be served with unsurmountable problems. In order to make a decision regarding the refusal of acceptance he would be obliged to inform himself about the legal consequences according to the law of the transmitting State unknown to him.74 In the Leffler case the ECJ has justly refused to extrapolate from the lack of translation to the nullity of service. Defects of translation only grant the addressee a right to refuse acceptance according to the provisions within Article 8(1) of the Regulation. It is not the infringement of the need for a translation which leads to the partial - failure of service but rather the refusal of acceptance based on the latter. Only the possibility of a subsequent rectification of infringements of the prescribed need for a translation is compatible with the aim to accelerate cross-border service pursued by Article 8(19 of the Regulation.75 In conclusion, the ECJ's proposed solution regarding the relevant point in time for service in cases of infringements of Article 8(1) of the Regulation conforms to the principle of an adequate balance of interests between addressor and addressee. As the claimant may invoke the date of the first service without a translation in order to preserve his rights, there is a risk that in the future service will be effected at first without observance of the rules regarding language in Article 8(1) of the Regulation. The required translation will be only presented after the defendant has refused to accept the document according to Article 8(1) of the Regulation. This consequence is only acceptable where the addressee has been sufficiently instructed about his right to refuse acceptance. This prerequisite however does not exist in the applicable version of the Regulation on Service. 76 Moreover, it must be feared that applicants will even use the possibility of a term keeping service without abidance to the translation prerequisites presented by the ECJ, in cases where they know that the addressee cannot understand the document due to his lack of linguistic knowledge. In such cases of obvious misuse, the applicant should be barred from invoking the establishment of effects of service.77
c) Reformation Due to its obvious deficiencies, the rule governing languages within Article 8 of the Regulation is a core theme in the reforma of the Regulation of Service proposed by the European Commission
.78 In order to limit the cases of a refusal of acceptance according to Article 8(1) of the Regulation, in its amendment proposal from 11. 7. 2005 the Commission amplifies the sphere of allowed languages. According to the new version of Article 8(1)(b) of the Regulation the document does not necessarily have to be in the language of the State addressed or the State of transmission; rather, any other language that the addressee understands is sufficient. Thus, it can suffice that the wording of the document is in a universal language as English, even where this language is neither the official language of the State addressed nor of the State of transmission. Hence, not only costs of translation can be saved but also the service to several defendants having their seats in different countries is facilitated.79 Moreover, the Regulation draft provides for an instruction of the addressee regarding his right to refuse acceptance in Article 8(1) of the Regulation. The lack of such instruction in the present version of the Regulation has been rightly criticized.80 According to the draft, the receiving agency has to instruct the addressee, if possible orally and in any case in writing by using a form especially created for it, about his right to refuse acceptance of the document to be served at the time of service or up to one week after service by sending the document back where the document is in a language other than the ones admitted by Article 8(1) of the Regulation and no translation into one of these languages is attached. Especially the addressee's possibility to subsequently refuse acceptance provided for in Germany for service to a foreign country in §1070 ZPO as well as the unification of the previously different time limits according to the law of the Member States to one week is welcomed. Thus, in the future, the addressee of a document will have the possibility to decide himself on his right to refuse acceptance, especially in cases where service is effected for the first time.81 A newly introduced paragraph 3 within Article 8 of the Regulation regulates the possibility of rectifying defects of service which result from infringements of Article 8(1) of the Regulation. The new provision complies with the basic principles of the ECJ's judgment in Leffler.82 In this judgment the ECJ was obviously oriented by the Commission's draft already available at that time. Due to the wording of the new rule it can be concluded that the possibility of rectification should be upheld, despite its effects on the date of service, even where the addressee refuses acceptance without good reason.
73 ECJ see paras 65-67. 74 Accurately Rцsler/Siepmann, Language problems in the European law on service, NJW 2006, 475, 476. 75 See also Stadler (supra note 44), IPRax 2006, 116, 122 et seq. for the same conclusion; Rцsler/Siepmann (supra note 74), NJW 2006, 475, 477. 76 Stadler (supra note 44), IPRax 2006, 116, 123, see also below at d). 77 See also Rцsler/Siepmann (supra note 74), NJW 2006 475, 477; Rauscher/Heiderhoff (supra note 15), Article 8 Regulation on Service para. 14 at the end.
78 COM (2005) 305 ; cf. above I.4. 79 See also Rцsler/Siepmann, Die geplante Reform der europдischen Zustellungsverordnung, RIW 2006, 512, 513. 80 Stadler (supra note 24), IPRax 2001, 514, 518. 81 Accurately Rцsler/Siepmann (supra note 79), RIW 2006, 512, 513. 82 cf. above 1 at the end.
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IV. Problems of service by post according to Article 14 of the Regulation on Service The undoubtedly most important innovation which the Regulation has brought in comparison to the Hague Convention - especially from the point of view of Germany - is the possibility granted by Article 14 to all Member States to effect service of judicial documents directly by post.83 As no Member State can any longer prohibit the direct service by post, all Member States are obliged to accept such service from other Member States on addressees in the own State. Even though this possibility to serve judicial and extrajudicial documents directly by post has already led to a significant acceleration of service between Member States,84 in practice, the service by post still poses difficulties as the return receipt required by most Member States is often sent back with significant delays or not at all. Thus, its is widely recommended to continue to serve in particular documents instituting the proceedings additionally by way of judicial assistance according to Article 2 et seq. of the Regulation.85 The very brief regulation of service by post in Article 14 of the Regulation has furthermore led to a number of problems as to its interpretation.
If cumulative service by post and by way of judicial assistance according to the ECJ is admitted the question arises which of the two services shall be relevant for the purpose of the beginning of time limits which are tied to an effected service. Part of literature held that for the purpose of the time limits to be considered by the addressor the first successful service was relevant, while the addressee could refer to the receipt of the second document regarding the time limits that he had to observe, especially where the second document contained an information on legal remedies.89 In contrast, regarding deadlines, the ECJ adheres to the principle of equal ranking between all ways of service. Accordingly, also vis-а-vis the addressee, the point in time of service by post is relevant, where it is effected earlier than service by way of judicial assistance, which usually is the rule. As the addressee already takes notice of the document when it is first served effectively and thus has enough time to prepare for his defense, his right to a fair hearing is sufficiently protected by such an interpretation. The mere circumstance that the same document is served on him again at a later point in time in another way does not require further reaching protection.90
1. Relationship between service by post and formal service according to Article 2 et seq. of the Regulation on Service Due to the very detailed regulation of formal service in the first section (Articles 4-11 of the Regulation) and the com- paratively brief regulation of "other means of transmission and service of judicial documents" in the second section (Arti- cles 12-15 of the Regulation, literature held in part that service by post was subsidiary to formal service.86 Upon a reference for a preliminary ruling by the Belgian appellate court, the ECJ repudiated such a perception in its judgment from 9. 2. 200687. The ECJ emphasizes that the Regulation does not indicate any hierarchy between the ways of service provided for. As the Regulation's purpose to guarantee successful ser- vice with full reserve to the interests of the addressee, is en- sured by all of the ways of service provided for in the Regula- tion, direct service by post can be considered to be a way of service of equal rank as service by way of judicial assistance. Thus, judicial documents can be served by either way or by both ways at the same time.88 83 cf. Rauscher/Heiderhoff (supra note 15), Article 14 para. 1, the provision of Article 14 of the Regulation on Service is justly considered to be the "central provision" of the Regulation on Service; likewise Zцller/Geimer, ZPO, Article 14 Regulation on Service para. 1. 84 cf. the Commission's statement from 11.7.2005 regarding the recomendation for an amendment of the Regulation on Service, COM (2005) 305 final. 85 cf. in this sense HeЯ, Noch einmal: Direktzustellungen nach Art. 14 EuZVO, NJW 2004, 3301; Rauscher/Heiderhoff (supra note 15), Article 14 Regulation on Service para. 1. 86 HeЯ (supra note 23), NJW 2002, 2417, 2422. 87 ECJ 9 February 2006 C-473/04 Plumex v Young Sports N.V.,  EuLF I-23 = NJW 2006, 975. 88 ECJ see paras 19-22; as already in OLG Dьsseldorf IPRax 2006, 270; Stadler (supra note 23), IPRax 2002, 471, 472; Gsell, Direkte Postzustellung an Adressaten im EU-Ausland nach neuem Zustellungsrecht, EWS 2002, 115, 117; Lindacher (supra note 23), ZZP 114, 179, 185; Schlosser (supra note 14), Article 14 of the Regulation on Service para. 2; Musielak/Weth, ZPO (3. edition 2005), preliminary note to Ar-
2. Relationship between service by post and direct service according to Article 15 of the Regulation on Service Significant legal insecurities exist regarding the relationship between service by post according to Article 14 of the Regulation and direct service according to Article 15 of the Regulation. Thereby, the question is raised whether Article 14 only applies to service on the court's own motion or also to service by the parties themselves or by other private persons authorised by the State of transmission. The practical significance of this question results from the circumstance that while the Member States have the right to bar direct service in their territory at the instigation of persons interested in judicial proceedings (see Article 15(2) of the Regulation), they do not have the right to bar direct service by post according to Article 14 of the Regulation. As the Federal Republic of Germany has used its possibility of declaring its opposition according to Article 15(2) of the Regulation, the service of judicial documents by post on an addressee domiciled in Germany at the instigation of an attorney who has been authorised according to the relevant national (e.g. English) law can only be approved where Article 14 and not Article 15 of the Regulation is applicable.91 An application of Article 14 of the Regulation should be favoured, as otherwise those Member States which do not know the service ex officio and thus always serve judicial documents at the instigation of the parties could not use the accelerated service by post according to Article 14 of the Regulation. Instead, they would have to rely on the more ticle 12 of the Regulation on Service; Jastrow (supra note 14), chapter 28 para. 221. 89 cf. Rauscher/Heiderhoff (supra note 15), Article 14 of the Regulation on Service para. 5. 90 ECJ see paras 28-33. 91 However, in cases of service abroad, Article 15(1) of the Regulation on Service is also applicable from the point of view of Germany as long as it is due direct service according to § 166 (2) ZPO and the State addressed does not oppose such service according to Article 15(2) of the Regulation on Service.
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difficult service according to Articles 4 et seq. by transmitting agencies and receiving agencies.92 On the other hand, the systematic coherency between Article 14 and Article 15 (2) of the Regulation speaks against the application of Article 14 of the Regulation regarding direct service. The opposition by a Member State as the Federal Republic of Germany - according to Article 15 of the Regulation would exclude the formal service by authorised persons in the State addressed (e.g. the bailiff) at the instigation of the foreign party to the proceedings. However, it would not exclude direct service at the latter's instigation. Therewith, the right granted to the Member States in Article 15(2), to oppose to the service of judicial documents in its territory at the instigation of foreign parties would be hollowed. The concession in Article 14(1) of the Regulation, of direct service by post only to the `Member States', cannot be interpreted as meaning that private persons e.g. foreign attorneys can never make use of this way of service.93 The wording of Article 14(1) of the Regulation and the systematics of the Regulation however indicate that only transmitting agencies have the right to service by post.94 Thus, it is necessary that the foreign party which shall effect service by post is named as "transmitting agency" by the respective Member State.95 As there is no plausible reason for a discrimination of Member States which follow the principle of service by the parties the possibility to oppose service according to Article 15(2) of the Regulation should be abolished. The Commission has justly made such a suggestion in its draft for an amendment of the Regulation. 3. Service by post and language requirements A further problem posed by Article 14 of the Regulation follows from the circumstance that in relation to service by post the Regulation does not make any specifications regarding the language of the document to be served which could be compared to Article 8 of the Regulation. While in the beginning doubts were expressed whether the Member States should be allowed within the scope of their competence according to Article 14(2) of the Regulation to specify the conditions for the acceptance of service of judicial documents by post, to also specify language conditions, the Commission has meanwhile approved the language requirements established by the Federal Republic of Germany within § 1068 (2)( 2) ZPO, as well as by other Member States following Article 8 of t he Regulation.96 More- 92 On this account, regarding the application of Article 14 of the Regulation on Service to service by a private person authorized according to his national law, see HeЯ (supra note 85), NJW 2004, 3301; also OLG Kцln IPRax 2004, 521 with critical annotations by Geimer 505 = EWiR 2004, 441 with dissenting annotation Emde. 93 Following this opinion anyhow LG Trier NJW-RR 2003, 287 = IPRax 2004, 249; assenting de Lind van Wijngaarden-Maack, IPRax 2004, 212, 215; Schmidt, Parteizustellung im Ausland durch Einschreiben mit Rьckschein ein gangbarer Weg?, IPRax 2004, 13 et seq. 94 Emde, Zulдssigkeit von Direktzustellungen auslдndischer Prozessbevollmдchtigter an deutsche Parteien nach Art. 14 EuZVO, NJW 2004, 1830 et seq.; same author EWiR 2004, 441; Rauscher/Heiderhoff (supra note 15), Article 14 of the Regulation on service para. 4; Jastrow (supra note 14), chapter 28 para. 222. 95 Accurately Geimer, IPRax 2004, 505, 506; same author, in: Geimer/Schьtze, Europдisches Zivilverfahrensrecht (2. ed. 2006), Article 14 of the Regulation on Service para. 9; Rauscher/Heiderhoff (supra note 15), Article 14 of theRegulation on Service para. 4 at the end with an indication to the example of Scotland. 96 cf. hereto an overview in Rauscher/Heiderhoff (supra note 15), Article 14 of
over, Article 8 of the Regulation can be applied analogously to service by post even where a Member State has not established any language prerequisites of which deviate from the ones in Article 8.97 Thus, the addressee has to be given a right to refuse acceptance according to Article 14 of the Regulation in the case of direct service by post of the document whenever the document does not meet the language requirements of Article 8 of the Regulation.98 In order to eliminate the sickliness justly pilloried by literature99 which arises from the application of very different "preconditions" of the meanwhile 27 Member States of the EU, the commission has advocated a striking out of Article 14(2) of the Regulation in its draft for an amendment from 11. 7. 2005. Rather, registered mail with a return receipt (or an equal receipt) which has been so far favoured by the Federal Republic of Germany (§1068(1), (2)(1) ZPO) and most of the other Member States is prescribed uniformly as only way of service. Furthermore, the Commission expressly clarifies in a new version of Article 15 of the Regulation that the provisions regarding the right to refuse acceptance according to Article 8 of the Regulation as well as the provisions regarding thed ate of service according to Article 9 also apply to service by post according to Article 14 and direct service according to Article 15. After the entry into force of the amendment to the Regulation, this provision will supersede the more restrictive rule of § 1068 (2)(2) ZPO regarding services to be effected in Germany. As the addressee will have the right to refuse aceptance even one week after service (Article 15 in connection with Article 8(1) of the amended Regulation), the problem often discussed in literature regarding the safeguarding of the examination of the linguistic and translation requirements by the addressee of the post will be solved. Thus, at the latest with the entry into force of the amendment to the Regulation the ECJ's principles in the Leffler judgment regarding the possibility of rectification of infringements of the translation requirement will be transferrable to service by post.100 The addressor will insofar be given the possibility to effect service at first without a translation in order to preserve the relevant time limits, provided that he presents the translation thereafter within an adequate time period.101 the Regulation on Service para. 13. 97 cf. The information of the Member States according to Article 23(1) of the Regulation on Service published by the Commission; see also overview in IPRax 2006, 198; accurately Schmidt (supra note 93), IPRax 2004, 13, 18; Rauscher/Heiderhoff (supra note 15), Article 14 of theRegulation on Service para. 9; Jastrow (supra note 14), Chapter 28 para. 229; contrary Gsell (supra note 88), EWS 2002, 115, 122; Rahlf/Gottschalk, Das Europдische Zustellungsrecht, EWS 2004, 303, 308; the question is expressly left unanswered by the OLG Dьsseldorf IPRax 2006, 270. 98 OLG Dьsseldorf aaO. (NL); contrary OLG Celle NJW 2004, 2315 (GB). 99 cf. HeЯ (supra note 33), NJW 2002, 2417, 2423. 100 See above III.3.b. 101 For an opinion against a transmission of this jurisprudence to cases regarding service by post de lege lata see Rauscher/Heiderhoff (supra note 15), Article 14 of the Regulation on Service para. 12.