The case of the day is Alpha Bank Cyprus Ltd. v. Si Senh (E.C.J. 2015). Alpha Bank, a Cyprus bank, had lent money to Dau Si Senh and several other residents of the UK for the purchase of immovable property in Cyprus. Alpha sued Si Senh and the others for payment of the loans. The suit was brought in a Cyprus court. On Alpha’s motion, the Cyprus court of first instance ordered service on the UK defendants under the Service Regulation, Regulation No. 1393/2007. The UK defendants were served with Alpha’s ex parte application and a “notice of writ” in Greek and English, the court’s order authorizing service outside of Cyprus, in Greek only, and the affidavit of the translator concerning the faithfulness of the translation of the main document. The UK authorities determine that the Greek document didn’t need to be translated, and so they didn’t include the form prescribed by the Regulation that advises defendants of their right to refuse receipt of untranslated documents.
Si Senh and the others appeared under protest and sought an order declaring the service of process invalid on the grounds that the service did not comply with Article 8 of the Service Regulation or Article D.48, Rule 13 of the Cyprus Code of Civil Procedure. Among other things, they argued that the standard form mentioned in Article 8(1) had not been served on them.
The court of first instance ruled in favor of Si Senh and the others, and Alpha appealed. The Supreme Court of Cyprus, the Ανώτατο Δικαστήριο της Κύπρου, reversed to the extent the lower court had held that the violation of Cyprus law justified invalidating the service. But it referred the question of compliance with the Service Regulation to the European Court of Justice.
A few references before we proceed: Letters Blogatory contributor Fanny Cornette wrote about Alder v. Orłowska, an earlier ECJ case construing the Service regulation, in a post in January 2013. Also, the new Alpha Bank case is the subject of a post on Aldricus by Letters Blogatory contributor Pietro Franzina, cross-posted at Conflict of Laws.
The issue in the case was this: under Article 8 of the Service Convention, the defendant has a right to refuse to accept a document if it is not translated into a language he understands or the official language of the state where service is made. The “receiving agency” (the authority in the receiving state charged with effecting the service, similar to a central authority under the Hague Service Convention) is required to “inform the addressee” of this right “using the standard form set out in Annex II.” Here, the UK receiving agency did not deliver the prescribed form. Is it necessary to use the form in every case? And what is the consequence for failing to use the form?
The court held that under Article 8 the receiving agency was indeed “required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document.” Moreover, the receiving agency has to use the prescribed form. However, failing to give the form to the defendant “does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation.”
The basic policy of the decision seems right: the receiving agency should not be in a position of judging whether the defendant was justified in refusing to accept a document; that’s the job of the court hearing the action, just as in a Hague Convention case the central authority’s task is purely ministerial except in those few cases where the central authority has the power to refuse to execute a request for service. You might ask why it is sensible to give the defendant the right to refuse to accept a document rather than simply give the court hearing the case the power to invalidate the service if the document is not translated into the correct language. But the language of the Regulation is clear on that point.
The decision also seems sensible insofar as it holds that a failure to provide the required form is a fixable mistake, particularly because the failure to provide the form is not a failure by the plaintiff but by the receiving agency.
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