Once again, I want to write a post concerning a regulation of the European Union. EC Regulation 1393/2007 is, for the member states of the European Union, the counterpart of the 1965 Hague Convention on Service of Documents Abroad, which is well known to the readers of Ted’s blog. One of the characteristics of this regulation is that its article 22 creates a review process. The European Commission is supposed to render a report every five years and to make proposals for changes if needed.

The European Commission issued its report  on 4 December 2013. In its report, the European Commission emphasizes the improvements due to the replacement of Regulation (EC) 1348/2000 of 29 May 2000 by Regulation (EC) 1397/2007 of 13 November 2007, in force since 13 November 2008.

The European Commission also highlights rulings of the European Court of Justice on the topic: the Weiss und Partner case, the Roda Golf case and the Alder case. The first case, Weiss und Partner, concerns the translation of documents. In that case, the ECJ stated that a party is not allowed to refuse a document, the annex of which is not translated, if the annex was not essential for the comprehension of the case. It also stated that the language of correspondence between the parties, specified in a clause of the contract, is mere evidence concerning their knowledge of this language and not conclusive on the question of knowledge. The second case, Roda Golf, is linked to the type of documents that may be transmitted according to the Regulation. The ECJ held that a notarial document is an extrajudicial document that has to be served according to the procesess of the Service Regulation. The third case, Alder (see the case here and my post here), held that domestic law is not competent to determine whether a service falls under the scope of the Regulation or not. The regulation itself must be applied to answer this question. In that case, as the plaintiff lived in another member state, service should have been made according to the provisions of the Regulation.

Even if the application of the Regulation is satisfactory, the report raises a number of difficulties that remain and that might be solved by the adoption of a new text. For example, the report lists a certain number of issues concerning the standards form and the faculty for the addressee to refuse a document that is not translated. It also points out the disparities among the domestic law of the member states concerning proceedings and conclude that this issue should be addressed. The report also takes into account the impact that the suppression of the exequatur introduced by the new Brussels I regulation (introduced by Pietro Franzina and me in two other posts) will have on the process of service of documents.

This report is an important step in the process of revision of the regulation concerning service of documents among member states of the European Union.

The conclusion of the report gives a good idea of the progress that has been made but also of the work that still needs to be carried out :

The Regulation has been applied in general satisfactorily by the Member States’ authorities. Nevertheless, the increasing judicial integration of Member States has brought to light the limits of the current text of the Regulation. In the light of the role of the Regulation in the entire framework of judicial cooperation in civil justice matters, particularly in the light of the abolition of exequatur a deeper integration within the Union, for instance by way of minimum standards on service, may be considered. Furthermore, even if the delays for cross-border service have been progressively reduced, an efficient conduct of judicial proceedings in Europe requires further progress to be made. This report will serve to encourage a broad public debate on the role of the Service Regulation in the Union’s civil justice area and how in particular the service of documents may be further improved.

The reviewing process will follow several steps, which I will gradually introduce to the reader of the blog.

I also take this occasion to introduce a new blog concerning European agenda for civil justice and entitled Justice civile européenne: Random comments on European Civil Justice. Welcome to this blog!

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This is the second of two posts concerning the new Brussels I a regulation. It deals with the rules related to recognition and enforcement of judgments. The background and preparatory works are explained by Pietro Franzina in his post concerning jurisdiction and parallel proceedings. As Pietro mentioned, the abolition of exequatur, which is the procedure for the declaration of enforceability of a judgment from another member state, is seen as the major change introduced by the new regulation. This change was presented both by the European Council and by the European Commission as the main improvement of the text and even as “a small revolution” by Viviane Reding, who is Vice-President of the European Commission and EU Commissioner for Justice.

Prior to introducing the content of the new rules, some remarks can be made. First, regulation No. 1215/2012 is not the only regulation that abolishes this procedure. All of the following regulations contain rules abolishing exequatur for some of the judgments falling within their scope: regulation N° 805/2004, creating a European enforcement order for uncontested claims, N°1896/2006, instituting a European order for payment procedure, N° 861/2007, instituting a European small claims procedure, N° 4/2009, concerning maintenance issues, and N°2201/2003, dealing with matrimonial matters and matters of parental responsibility.

Moreover, the abolition is limited only to judgments coming from the courts of member states of the European Union. For the decisions coming from other states, the applicable rules are those of the national law of the member state where enforcement or recognition is sought. E.g., the rules applicable to the recognition of a US judgement in France are the provisions of the French law and not the provision of the European regulation. Finally, we can say that this text is less ambitious than the proposal presented in 2010 by the European Commission and appears to be disappointing on many points (some of them can be found in Pietro Franzina’s post, such as the small changes concerning jurisdiction).

Concerning the content of the text, I decided to divide my post into two parts. First I want to explain the abolition of exequatur. Secondly, I will introduce the new procedure created by the regulation to replace exequatur.

The abolition of exequatur

The goal of abolishing exequatur is that “a judgment given by the court of a Member State should be treated as if it had been given in the Member State addressed.” (Recital 26 of regulation No. 1215/2012) To achieve this goal, the legislator decide to abolish all intermediate procedures.

Thus, for the execution of a decision under the new regulation, the applicant may apply directly to the competent authorities to carry out the execution. Contrary to the prior law, the new regulation does not require that the person seeking enforcement have his or her address in the State. It facilitates the procedure of recognition and enforcement, as the applicant does not need for example to appoint a lawyer who has an address in the requested state.

The applicant only need to provide a copy of the decision and the certificate issued by the competent authority of the country of origin certifying the enforceability of the decision authority (Art. 42 of regulation No. 1215/2012).
This certificate is the chore of the procedure. The document, filled in by the court that gave the underlying decision, must enable the competent authority to carry out the execution. It must contain all the information required. The preparatory works for the revision highlighted the role of the courts or authorities in charge of pronouncing exequatur under the current regulation N°44/2001. Most of the time, they have to deal with practical issues such as the calculation of the interest or the implementation of the decision. Thus, the suppression of the intermediate stage was accompanied with measures to enable the competent authorities to have the information needed to be able to carry out the enforcement proceedings.

The content of the certificate is now more detailed (see annex I of regulation No. 1215/2012). In particular, the new certificate includes provisions concerning the amount of the debt, due dates, currency and interest. To facilitate implementation, competent authorities “may, when necessary, require the applicant, [ellipsis] to provide a translation or a transliteration of the contents of the certificate.” (Art 42 of regulation No. 1215/2012). The authorities may also “require the applicant to provide a translation or a transliteration of the judgment,” but “only if it is unable to proceed without such a translation”.

Before any enforcement measures are taken, Article 43 of the new regulation provides that the certificate must be served on the person against whom the decision is to be executed. If it has not yet been served, the decision to enforce must also be served. Surprisingly, the regulation specifies the rule applicable to translation in Article 43 § 2. However, for the service of documents between Member States, EC regulation N° 1393/2007 of 13 November 2007 on service of documents among members States lays down the procedure for service, including rules for translation. Both texts are similar to the Service regulation, and it would have been easier if the new text only referred to the Service regulation for all aspects concerning service of documents, including translation. As the applicant informs the other party before any enforcement measure, there is no more surprise for the defendant. The recipient information appears necessary for him to challenge enforcement, but it may also encourage it to move his assets before the execution. In such a case, the applicant may have to seek enforcement in another state, possibly a third state.

Once the documents served, the competent authority carries out the execution by applying its own national law (Article 41 of regulation No. 1215/2012). The regulation itself does not contain any material rules related to the conduct of the proceeding. The regulation only specifies that if the measure or order to enforce is not known by the law of the State where it must be executed, the competent authorities “that measure or order shall, to the extent possible, be adapted to a measure or an order known in the law of that Member State which has equivalent effects attached to and which pursues similar aims and interests. Such adaptation shall not result in effects going beyond those provided for in the law of the Member State of origin” (Article 54 of regulation No. 1215/2012). The parties have the opportunity to challenge the choice of an equivalent measure (Article 54 of regulation No. 1215/2012) but the regulation is silent concerning the case in which there is no equivalent measure in the law of the requested states.

Finally, the abolition of exequatur, which appears, at a first glance, to simplify the circulation of judgments is in reality rather complicated. It was justified both on economic and political grounds.

The European Commission considers that exequatur proceedings cost as much as € 48 million for consumers and businesses. The idea behind abolition is to save part of this money. Moreover, one of the aims of the European Union was to abolish all intermediate procedure in order to have a “free” circulation of judgments to comply with the idea of mutual trust.

One of the arguments given by the European Commission is that 90% of the applications for enforcement are accepted under the current Brussels I Regulation, the procedure itself is then seen unnecessary and could be deleted. However, the last argument was unpersuasive. The efficiency of a procedure is a good argument to keep it unchanged. Anyway, the need to protect fundamental rights led the European Parliament to create a procedure to offer the opportunity to contest the recognition or enforcement of a judgment from another Member State.

The refusal of recognition or enforcement

In itself, the creation of a new proceeding reveals that it is not so easy to abolish any kind of control of the judgments from other member states. Contrary to the intentions of the European Commission in its initial project, intermediate proceedings have not completely disappeared, since the new regulation creates an opportunity for the party against whom the decision will be enforced to ask the courts of the requested State to refuse recognition or enforcement.

The abolition of exequatur without any mechanism to check the judgment from another member state is not yet possible among members of the European Union, especially because one of the functions of enforcement is to protect fundamental rights.

The new regulation creates an opportunity to challenge the execution or recognition of a judgment in the requested State. Once served, the person against whom the decision must be executed has the opportunity to challenge the recognition or enforcement in court. According to article 45 of regulation N°1215/2012, the grounds of objection are the same as the ones existing in the current Brussels I Regulation: contrary to public policy (ordre public), default of appearance of the defendant who was not duly served, incompatibility among decisions, and non-compliance with jurisdiction concerning insurance, consumer contracts and contracts of employment. Thus the jurisprudence of the European Court of Justice on the interpretation of these elements remains valid.

This new procedure replaces the exequatur and is not very different. The same arguments can be used before the judges. The same judges are competent, namely the judges of the requesting states. The main difference is that their intervention occurs only if the recognition of the enforcement is challenged. The hope is that most of the time people will not challenge the decision to be executed or recognized. If that hope is realized, we will be able to say that the exequatur is really abolished for the most part.

To conclude, we can say that as long as the procedural rules are not harmonized among the national laws of the member states, it seems impossible to abolish all the controls of the judgment to be executed in another member state. The new regulation is not the small revolution some expected, but it is a step further in the construction of an area of freedom, security and justice among the member states of the European Union.

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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.

The post Case of the Day: Alder v. Orłowska appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

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.

The decision

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.

Comment

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 [ellipsis]

The post Case of the Day : French Cour de cassation, May 12th 2012 (N°11-15.508) appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.