Case of the Day : French Cour de cassation, May 12th 2012 (N°11-15.508)
Posted on August 29, 2012
This is the first guest-post by Fanny Cornette, a member of Letters Blogatory’s IJA Brigade. Fanny holds positions at the Université de Rouen and the Université du Havre
I would like to thank Ted for welcoming me as a French correspondent for his blog. For my first post, I would like to give an example of a French case dealing with the application of the Hague Service Convention.
In the case of the day, a person living in India asked the Caisse nationale d’assurance vieillesse de Paris for a pension. As this body refused to award him the pension he asked for, he applied for relief to the Tribunal des affaires de la sécurité sociale (TASS). This tribunal is competent in pension and health care insurance issues. After a first decision, the case went to the Court of Appeal of Paris.
Under French procedure in such a case, once the court is seized, it sends a summons by registered letter to invite the claimant to express its view before the judges.
In our case, the document was posted to the claimant’s address in India. We do not know if he received it or not, and if so, whether he got the document on time or too late. In any case, he did not come to the hearing, and the court rejected his claim for a pension. The claimant then sought relief in the French Cour de cassation.
In its decision, the court dealt only with the regularity of the service of the summons under Articles 14, 683 and 684 of the French Code de procédure civile and Article 10 of the Hague Convention on Service Abroad. According to the court:
Attendu qu’il résulte de ces textes que l’acte destiné à être notifié par le secrétaire d’une juridiction à une personne ayant sa résidence habituelle en Inde est transmis directement à l’autorité centrale désignée pour le recevoir; que si l’intéressé est de nationalité française, la notification peut être faite par voie diplomatique ou consulaire.
In English, the court’s holding was that documents to be served on someone living habitually in India should be sent either by the Central Authority or, when the addressee is French, by diplomatic or consular channels.
In the case, as the document was sent by mail, the service was irregular and the claimant was not properly invited to present his claim to the Court. The Cour de cassation reversed the decision of the Court of Appeal and decided, following French normal procedure, that the case has to be judged once again by a second-degree court, the same Court of Appeal of Paris, but this time composed of different judges.
This decision highlights several points concerning the service of documents abroad.
The court reasserted exclusive character of the Hague Service Convention for all the judicial documents. According to article 10(a) of the Convention, the use of postal channels is allowed only if the receiving state did not object to it. In our case, India refuses the service of foreign documents by post. Thus, the judges considered that the service was irregular and said that only three channels are permitted: the diplomatic channel, the consular channel, and the main channel with the intervention of the central authority. Due to the objection of India to all the alternative channels of article 10, no other channel could be used. Thus the holding is not completely applicable to all the countries that are party to the Hague Service Convention, but only to those rejecting all the alternative means. For the countries that agree to the use of alternative channels, these methods can be used complementarily to the Central Authority and the diplomatic or consular channel. Note that, on the contrary, the use of the Central Authority is always possible. It is the heart of the system of the Hague Service Convention, and states cannot reject it. Considering the efficiency of this channel, most of the time it is the best option to serve a document abroad.
The application of an international agreement changes the proceedings in front of the TASS. These are supposed to be very simple because the cases need to be treated quite quickly as they deal with pensions people may need for daily life. The claimant chose mail for the service in this case in order to respond to this need for quick proceedings. Another reason which can explain this choice of registered letter is linked to the course of the procedure itself. The summons has to be served on the claimant, wwho is already involved and aware of the procedure, as he seized the judges. Thus, the protection required is not the same as for a defendant who has no idea of the existence of the case before he receives the documents. That is why service by signification, which is more formal and requires the intervention of an “huissier de justice,” was not chosen in this case.
The solution of the Cour de cassation will lead to more formal service in international cases than in domestic ones.
This case in not the first one dealing with the regularity of a service of documents abroad by registered letter, but this is a new issue since the topic arose for the first time only in 2011. Since the first case, more than seventy cases have arisen in front the second Chamber of the French Cour de cassation. However, this case is the first one dealing with the application of the Hague Service Convention. In all the previous cases, the documents were to be served in accordance with a bilateral agreement between France and Algeria, Morocco, or Tunisia (For an example see French Cour de cassation Civ. 2ème 10 novembre 2011 N° de pourvoi: 10-20617). In all these cases the holding of the Cour de cassation was the same: the bilateral agreement should have been applied.
The solution in this case seems the same, but the practical application will be different depending on whether the applicable convention is a bilateral agreement or the Hague Service Convention. In the first case, the document is to be served through the “Parquet”, which means a very long proceeding as the document could not be sent directly abroad to the competent authority. I should add, as I noted in my thesis on the topic, that this channel is not only very slow (taking a few months or even years) but is also not really reliable. Sometimes the document is lost, and if not, most of the time, it is delivered too late. Compared to registered letter, the application of the channel includes in bilateral agreements may not improve the efficiency of the service. The solution is maybe to change these bilateral agreements, but that requires political will. Another solution might be to order the claimant to choose an address in France. In that case, the document would be served in France, applying domestic law. The international nature of the procedure is removed, which in one sense is not satisfactory, but it seems there is no other option.
In the second case, the application of the Hague Service Convention leads to the use of the Central Authority, which will facilitate the service. This is more reliable than the postal channel, and depending on the authority, it could be quicker. In this case, this solution improves the chances of the addressee to have the document on time so that he can present his case to the court.
To conclude, we can see that the French Cour de cassation pays attention to the provisions of international agreements on service of process. The decision does not at all deal with the efficiency of the service. We can wonder what would be the outcome if the claimant, served by mail despite the applicable agreement, got the document on time and appears in court to challenge the regularity of the service …