IJA Brigade member Fanny Cornette is back with a look a Alder v. Orłowska, a new case from the European Court of Justice on fictitious service of process or notification au parquet in the European Union. Readers may recall that the case came up in the comments to Peter Bert’s piece on The Hague Service Convention, Default Judgments, and Deemed Service under German Law. We know that the Hague Service Convention is non-mandatory, and that the law of the forum determines whether a judicial document must be transmitted for service abroad. As Fanny tells us, the situation is now different in Europe, where EC Regulation 1393/2007, the regulation of service of process, is mandatory. That is, the regulation itself, and not the law of the forum, determines when a document must be transmitted abroad. As Fanny notes, this is problematic insofar as the regulation does not make it clear when the document must be transmitted abroad. So we can expect to see further legislative or judicial developments in this area, I think.

The service of documents among the member states of the European Union is governed by EC regulation 1393/2007, 13 November 2007. This text entered into force on 13 November 2008 and replaced the first Service Regulation, EC regulation 1348/2000 of 29 May 2000. These two regulations were inspired by the Hague Service Convention of 1965. Alder v. Orłowska (ECJ 2012) gave the European Court of Justice its first opportunity to give an interpretation of the second Service regulation, EC 1393/2007.

In that case, Mr. and Mrs. Alder, Germans living in Germany, decided to sue Mrs. Orłowska, who lived in Poland, concerning the recovery of a debt. In accordance with European conflict of jurisdiction rules, they seized the Polish court, the Sąd Rejonowy w Koszalinie, or District Court of Koszalin. That court instructed the Alders that under article 1135 of the Polish Code of Civil Procedure, they had to appoint “a representative who is authorized to accept service of documents in the Republic of Poland.” If they did not, “judicial documents addressed to that party shall be placed in the case file and shall be deemed to have been effectively served.”

The Alders did not appoint any representative, and a notice was placed in the case file without having been sent to their address in Germany. The Sąd Rejonowy w Koszalinie delivered a default judgment and rejected the Alders’ claim. The decision was not challenged and acquired the force of res judicata. The Alders decided once again to seize the Sąd Rejonowy w Koszalinie concerning the same issue, but the judges rejected their claim. They challenged the decision in front of the Sąd Okręgowy w Koszalinie (the Regional Court of Koszalin). That Court vacated the decision and send the case back to the Sąd Rejonowy w Koszalinie. The lower court expressed its disagreement and decided to seek a preliminary ruling from the European Court of Justice on the following question:

Are Article 1(1) of Regulation … No 1393/2007 … and Article 18 TFEU to be interpreted as meaning that it is permissible to place in the case file, deeming them to have been effectively served, judicial documents which are addressed to a party whose place of residence or habitual abode is in another Member State, if that party has failed to appoint a representative who is authorized to accept service and is resident in the Member State in which the court proceedings are being conducted?

The Court answered:

1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) and repealing Council Regulation (EC) No 1348/2000 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that judicial documents addressed to a party whose place of residence or habitual abode is in another Member State are placed in the case file, and deemed to have been effectively served, if that party has failed to appoint a representative who is authorized to accept service and is resident in the first Member State, in which the judicial proceedings are taking place.

Some comments are needed to understand the importance of the decision.

The regulation itself does not give clear guidance concerning its scope. Article 1 just says:

1. This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii).

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

The text contains no explanation to determine when a document has to be transmitted from one Member State to another for service there.”

A similar expression can be find in the 1965 Hague Service Convention, which states:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

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

For the application of the Hague Convention, this issue concerns the mandatory character of the Convention (see The Permanent Bureau of the Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Service Convention, 3d ed. (Montreal: Wilson & Lafleur, 2006) (“Handbook”). The Convention is said to be non-mandatory, which, regarding to the Handbook, means that the law of the forum has to determine whether a judicial document has to be sent abroad. Two main cases lead to the conclusion: Segers and Rufa BV c. Mabanaft GmbH of the Hoge Raad van Nederlands (Dutch Supreme Court), H.R 27 June 1986, NJ 1987 p. 764 RvdW 1986 p. 144; and Volswagenwerk Aktiengesellschaft c. Schlunk of the Supreme Court of the United States, 486 U.S 694 (1988), AJIL 1988, note C. M. Vázquez pp. 816-820. If, due to the law of the forum, a document has to be sent abroad, the convention is said to be exclusive, which means that the channels offered by the Convention are the only ones applicable for the service of the document between two member states.

Concerning the mandatory character of the text, the solution offered by the ECJ to this issue is the opposite of the solution of the Hague Convention. The ECJ stated that it does not for national law to determine if the document has to be sent abroad (see § 24-27 and especially § 25: “ In … situations … where the person to be served with the judicial document resides abroad, the service of that document necessarily comes within the scope of Regulation No 1393/2007 and must, therefore, be carried out by the means put in place by the regulation to that end, as provided for by Article 1(1) thereof.”)

This solution is new as long as the regulation does not refer to the place where the addressee lives or has his center of interest. The only point referring to a geographical criterion is article 1(2) of the regulation: “This Regulation shall not apply where the address of the person to be served with the document is not known.” A contrario, we can say that an address of the recipient is needed, not more.

The first consequence of such a statement is that it is impossible to know what criteria to use to determine if a document has to be sent abroad or not. Shall we use the residence of the addressee? There is no such criterion in the regulation. The numerous cases concerning the criteria of residence and “habitual residence” used in other European regulations reveal the complexity of such a criterion. Considering that point, the ECJ rule makes the service of document among member states more complicated.

The main goal of the court was to protect the plaintiff as, in this case, the plaintiff had no chance to express its view, as the notice was not sent to him. The real problem, then, is not the scope of the regulation but the deemed service and the violation of the fundamental right to real access to justice (article 6 of the European Convention on Human Rights and article 47 of the Charter of Fundamental Rights of the European Union).

The solution in itself is satisfactory, as the Polish law, which in that case deprives the plaintiff of the right to real access to justice, has to be changed.

It does not mean that the document has to be served abroad if the plaintiff does not nominate a representative; otherwise lots of people may not do so. The Polish law has to be changed to comply with fundamental rights, which does not mean that the regulation has to be applied. For example, this issue can be solved by domestic rules concerning the beginning of the trial. We can imagine that the judge cannot rule any decision before the nomination of the representative.

Maybe, in that case, it would have been sufficient to consider that Polish law does not respect the fundamental right of access to justice and therefore is contrary to the European regulation without interfering with the scope of the regulation. Apparently, the desire of the Court to protect the party may lead to more complexity in the process of serving documents abroad.

If we consider that to achieve the goals of creation of an area of freedom, security and justice, the issue of the mandatory character of the Regulation should be answered by a European source, the answer may not belong to the ECJ (especially if the solution is not clear at all). The solution should come from the legislator of the European Union during the next revision of this regulation.

On the same topic see the post of Gilles Cunberti on Conflict of Laws.net.