Case of the Day: In re Frau R

The case of the day, courtesy of Peter Bert of Taylor Wessing, is In re Frau R (German Fed. Constitutional Ct. 2015). Yes, I know that’s not the proper form for citing German cases, but it will have to do. Frau R., a Romanian national, sued a Romanian widow for a share of her dead husband’s estate on the grounds that the widow and her husband had adopted her. The widow denied the adoption, and so Frau R. sought recognition, in Germany, of the Romanian adoption. The lower court that heard the case failed to request the record of the adoption from the Romanian court under Council Regulation (EC) No 1206/2001, the EU regulation on judicial assistance, even though Frau R. had presented a letter from the Romanian authorities indicating that they would be receptive to a request from the German court. On appeal, the Federal Constitutional Court held that the lower court had violated Frau R.’s constitutional right to effective judicial protection.
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Case of the Day: Alpha Bank Cyprus v. Si Senh

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.
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Fanny Cornette on EC Regulation 1393/2007

Letters Blogatory contributor Fanny Cornette shares thoughts on the recent European Commission report on the operation of EC Regulation 1393/2007

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!