Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

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FINAL_REPORT_1393_v150

European Commission - Directorate-General for Justice More information on the European Union is available on the Internet (http://europa.eu) © European Union, 2014

ISBN: 978-92-79-34791-7 doi: 10.2838/84790

Reproduction is authorised provided the source is acknowledged. Printed in Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

TABLE OF CONTENTS

1 ACKNOWLEDGEMENTS ...... 5

2 EXECUTIVE SUMMARY ...... 6

3 THE PROJECT ...... 13 3.1 INTRODUCTION ...... 13 3.2 SCOPE...... 15 3.3 TEAM ...... 17 3.4 SURVEYS ...... 17 4 STUDY FINDINGS ...... 20 4.1 SPEED OF TRANSMISSION AND SERVICE ...... 20 4.1.1 Introduction ...... 20 4.1.2 Previous advances in the service of documents ...... 20 4.1.3 Practical problems ...... 21 4.1.4 Opinions and Proposals ...... 24 4.2 TRANSMITTING AND RECEIVING AGENCIES ...... 24 4.2.1 Introduction ...... 24 4.2.2 Brief approach to the system of service of documents in Regulation 1393...... 24 4.2.2.1 Transmitting and receiving agencies ...... 24 4.2.2.2 Other means of transmission ...... 25 4.2.3 Practical problems ...... 25 4.2.4 Opinions and Proposals ...... 29 4.3 CENTRAL BODY...... 30 4.3.1 Introduction ...... 30 4.3.2 Remarks on the functions assigned ...... 30 4.3.3 Practical problems ...... 30 4.3.4 Opinions and Proposals ...... 31 4.4 FORMS ...... 32 4.4.1 Introduction ...... 32 4.4.2 Types of Form and practical problems ...... 32 4.4.3 Language barriers ...... 34 4.4.4 Opinions and Proposals ...... 36 4.5 INFORMING ADDRESSEE OF RIGHT TO REFUSE TO ACCEPT A DOCUMENT ...... 37 4.5.1 Introduction ...... 37 4.5.2 Informing addressees of rights ...... 37 4.5.3 Exercises of this right ...... 38 4.5.4 Practical problems arising from this right ...... 41 4.5.5 Opinions and Proposals ...... 43 4.6 DATE OF SERVICE ...... 45 4.6.1 Introduction ...... 45 4.6.2 The double-date system ...... 45 4.6.3 Practical problems ...... 46 4.6.4 Opinions and Proposals ...... 47 4.7 COST OF SERVICE...... 47 4.7.1 Introduction ...... 47 4.7.2 Costs incurred by the Regulation...... 48 4.7.3 Practical problems ...... 50

2 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

4.7.4 Opinions and Proposals ...... 51 4.8 SERVICE BY POST...... 52 4.8.1 Introduction ...... 52 4.8.2 Method of service by post ...... 52 4.8.3 Practical problems ...... 53 4.8.4 Opinions and proposals ...... 55 4.9 DIRECT SERVICE ...... 56 4.9.1 Introduction ...... 56 4.9.2 Direct service ...... 56 4.9.3 Practical problems ...... 62 4.9.4 Opinions and proposals ...... 63 4.10 CONSULAR SERVICE ...... 63 4.10.1 Introduction ...... 63 4.10.2 Indirect diplomatic and consular channels (ART. 12) ...... 64 4.10.3 Direct diplomatic and consular channels (Art. 13) ...... 65 4.10.4 Opinions and proposals ...... 68 4.11 ELECTRONIC SERVICE ...... 68 4.11.1 Introduction ...... 68 4.11.2 Problems dealing with its practical implementation ...... 69 4.11.3 Opinions and proposals ...... 79 4.12 COMPARISON OF VARIOUS MODES OF SERVICE IN EU REGULATION ...... 80 4.12.1 Regulation 805/2004 ...... 82 (European Enforcement Order for uncontested claims) ...... 82 4.12.2 Regulation 1896/2006 (European Order for Payment) ...... 83 4.12.3 Regulation 861/2007 (Small claims) ...... 84 4.12.4 Conclusions ...... 84 4.13 COMPARISON OF NATIONAL RULES ...... 85 4.13.1 Right to refusal ...... 86 4.13.1.1 Comparative table ...... 86 4.13.1.2 Conclusions ...... 97 4.13.1 Cost of service ...... 97 4.13.1.1 Comparative table ...... 97 4.13.1.2 Conclusions ...... 99 4.13.2 Direct service ...... 99 4.13.2.1 Comparative table ...... 99 4.13.2.2 Conclusions ...... 105 4.13.3 Electronic service ...... 105 4.13.3.1 Comparative table ...... 105 4.13.3.2 Requirements for the implementation of the electronic transmission ...... 115 4.13.3.3 Conclusions ...... 118 4.14 COMPARISON OF NATIONAL RULES ON NATIONAL SERVICE OF DOCUMENTS .118 5 STUDY METHODOLOGY ...... 155 5.1 INPUT COLLECTION-METHODOLOGY ...... 155 5.1.1 European Experts ...... 155 5.1.1.1 Information gathering procedure ...... 156 5.1.2 Global Survey ...... 156 5.1.2.1 Targets for the Survey ...... 157 5.1.2.2 Groups of Professionals ...... 158 5.1.2.3 Information gathering procedure ...... 159 5.1.3 Central Bodies ...... 159 5.1.3.1 Objectives...... 160 5.1.3.2 Information gathering procedure ...... 160 5.2 GLOBAL SURVEY ...... 161

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5.2.1 Survey form ...... 161 5.2.2 Results of the global survey ...... 167 5.2.2.1 General knowledge of the Regulation ...... 169 5.2.2.2 Transmitting and Receiving Agencies (Art. 2)...... 171 5.2.2.3 Central Body (Article 3) ...... 176 5.2.2.4 Forms (Articles 4, 6, 7, 8, 10, Annex) ...... 178 5.2.2.5 Informing addressee of right to refuse to accept a document (Article 8) ...... 181 5.2.2.6 Article 8 related problems ...... 183 5.2.2.7 Date of service (Article 9) ...... 186 5.2.2.8 Costs of service (Article 11) ...... 189 5.2.2.9 Service by post (Article14) ...... 192 5.2.2.10 Problems concerning postal service...... 193 5.2.2.11 Direct service (Article15) ...... 198 5.2.2.12 Consular and diplomatic mode (Articles 12 and 13)...... 203 5.2.2.13 Electronic transmission ...... 206 5.2.2.14 Problems encountered ...... 207 5.2.2.15 Restrictive application of Regulation ...... 209 5.2.2.16 Direct cross border service of documents ...... 212 5.2.2.17 Recomendation of the direct service ...... 215 5.2.2.18 Electronic cross border service...... 217 5.2.2.19 Recommendation of the electronic service ...... 220 5.2.2.20 General narrative comments ...... 223 5.3 STATISTICAL DATA CONCERNING THE TRANSMISSION AND SERVICE OF DOCUMENTS ...... 227 5.3.1 Survey Form ...... 227 5.3.1.1 Tasks Central Bodies ...... 228 5.3.1.2 Global Figures ...... 229 5.3.1.3 Figures by Member State ...... 230 5.3.2 Information gathered ...... 231 5.3.2.1 Tasks Central Bodies ...... 231 5.3.2.2 Global figures ...... 239 5.3.2.3 Figures by Member State ...... 250 6 REFERENCES ...... 255

ANNEX 1 ...... COUNTRY REPORTS

ANNEX 2 ...... INFORMATION PROVIDED BY THE EXPERTS

ANNEX 3 ...... INFORMATION PROVIDED BY THE CENTRAL BODIES

ANNEX 4 ...... LIST OF E-MAIL ADDRESSES USED IN THE SURVEY

ANNEX 5 ...... FULL SET OF LITERAL NARRATIVE COMMENTS RECEIVED

ANNEX 6 ...... RESULTS BY MEMBER STATE AND PROFFESION

ANNEX 7 ...... ADAPTATION OF THE REGULATION-PROPOSAL

ANNEX 8 ...... RULES ON NATIONAL SERVICE OF DOCUMENTS

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1 ACKNOWLEDGEMENTS

We would like to express our gratitude for the support of all the Central Authorities, local bodies, transmitting and receiving agencies, and all the professionals (huissiers, barristers, lawyers, judges, etc) of the Member States who have contributed to this study with their many and very valuable comments on their own experiences concerning the application of EC Regulation 1393/2007. In particular, we could not have prepared this study without the feedback received from the experts who have contributed either with a view on the national legislations or with their opinion about the Regulation 1393/2007 and its application. Annexes to the present report list the professionals who have participated.

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2 EXECUTIVE SUMMARY

Council Regulation (EC) No 1393/2007 of the 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 (Official Journal L 324, 10.12.2007, pp. 79 – 120) establishes that “No later than 1 June 2011, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation”. Within this framework, the concluded a contract with MainStrat to obtain an empirical analysis of the application of the regulation, in particular concerning the effectiveness of the agencies designated pursuant to Article 2 and to the practical application of Article 3(c) and Article 9 and, if necessary, to propose adaptations of the Regulation in line with the evolution of notification systems. In fulfillment of this mandate, MainStrat produced this Study that will be used as input in the preparation of the Commission’s report referred to in article 24 of the Regulation. This Study is based on the feedback provided by the Central Bodies and more than 465 professionals from many legal sectors across all Member States (private lawyers, huissiers, solicitors, judges, transmitting and receiving agencies, public notaries, etc). The feedback was collected by means of several surveys and requests for information carried out between the months of April 2011 and December 2011. One of the main aspects of these surveys is the very detailed quality of the comments provided by the different segments of interviewees. This Study is also based on Country reports on the current rules on national service of documents in civil and commercial matters in each Member State. The aim of these reports was the identification of the current national rules that govern the service of documents in each Member State, as well as the description of the different types of service in order to establish, if possible, minimum standards for the cross-border service of documents. The Study has also been supported on the opinion of European Experts (mainly, academicians) concerning the practical application of Regulation (EC) 1393/2007 and the differences, similarities and synergies between the previous Regulation and the modes of service stipulated in other legal instruments. This Study shows that Regulation 1393/2007 represents a relevant step forward in the objective of achieving a Common European Judicial Area, being one of the cornerstones of judicial cooperation in civil and commercial matters within the European Union, providing judicial support to the practical application of all the other Regulations approved up to now in this field. We now present our main conclusions under this Study, based on the feedback provided by the interviewees: GENERAL CONCLUSIONS

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 The impact of the undeniable technical quality of the Service Regulation has been undermined by the lack of knowledge about its practical application by the professionals, bodies and institutions of the different Member States, who frequently are not familiar with the Regulation.

 There is no qualitative progress in comparison with the situation under Regulation 1348, up to the point that most of the conclusions and suggestions made in that report are repeated again in the current Study.

 There is still much room for improvement, being necessary more actions at European and National level to achieve a general knowledge of this Regulation, as well as the different tools provided by to improve the service of documents within the European Union. On this subject, as in the previous Study, a key factor is to foster the development of new programmes and training activities concerning the Regulation.

 There is no uniform application of the Service Regulation within European Union. Differences between Member States arise and make some assertions of this study not applicable with the same intensity in every Member State.

 Major dysfunctions of Regulation 1393 appear where remission to national rules and traditions is made. It seems necessary to eliminate the sickliness which arises from the application of very different preconditions of the meanwhile 27 Member States of the EU. It is necessary a step forward in the uniformity of procedural solutions to achieve the aims and objectives of the Service Regulation. While for a long time rules regarding international service were characterised by the apprehension of service as a sovereign act, these interests in state sovereignty play a minor role in connection with the judicial cooperation between the Member States of the European Union. The interest of the parties to the proceedings in fast and safe information is in force.

 However, common minimum procedural rules should only be introduced if the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the action, be better achieved at Community level, in accordance with the principle of and proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

 Current situation poses a risk of incoherent use of EU Regulations by the legal practitioners. In order to establish an efficient European judicial area this risk should be prevented. It is undeniable that the modes of service, according to the degree of certainty which they bring in information to the addressee, influence the process of abolishing the exequatur. We wonder why having found a mode as specialised and protective (in terms of the parties ‘right) as that of the general mode of transmission between transmitting and receiving agencies (section 1), finally other means of service (section 2) which distort its substance are promoted. Transmission of documents through local agencies should be promoted without derogation of other means, applicable in special circumstances. However, other means of service should not be advocated

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until the effectiveness and proper working of central bodies and transmitting and receiving agencies have notably improved.

 The restrictive application of the Service Regulation just to the first service of documents, with the obligation of providing a national address for subsequent services is currently under the analysis of the European Court of Justice (Preliminary Question C-325/11)1. However, reports on national legislation show that this solution is shared by several legal systems (as for, Belgium, , , Ireland, , , or ).

 Article 1.2 could be derogated, assigning Central Bodies functions of searching for unknown domicile of the addressee. But in any case, prior to the amendment of Regulation 1393/2007 obliging Central Bodies to assume this function, a deeper study should be necessary to know how it works in each Member State, how long does the judicial way take in comparison to the consular one or who assumes the cost.

SPECIFIC CONCLUSIONS:

SPEED OF TRANSMISSION: In general terms, the speed of transmission after the entry into force of Regulation 1393 is faster (a view shared by 32,3% of the interviewees), although differences between Member States are rather relevant and this conclusion need to be qualified by countries. Translations and problems dealing with the return of the certificate are the main difficulties that slow down the service of documents. It would be helpful if Member States could reach an agreement on using a common language in the communications between transmitting and receiving agencies, mainly English (language commonly accepted by all Member States, except by ). Also, it seems recommendable to foster the development of new programmes and training activities concerning the Regulation, especially in those Member States less familiar with the tools introduced by the Regulation.

TRANSMITTING AND RECEIVING AGENCIES: Transmitting and receiving agencies have helped to streamline the system for the service of documents. However, the general survey has revealed the lack of familiarity with the Regulation of some local authorities, lack of familiarity specially pronounced in some Member States (conclusion shared by one third of respondents).

OJ C 269 from 10.09.2011, p.29, p.29 (Question referred: Are Article 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 1 and Article 18 of the Treaty on the Functioning of the European Union to be interpreted as meaning that it is permissible to place in the case file, deeming them to have been effectively served, court 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 authorised to accept service and is resident in the Member State in which the court proceedings are being conducted?)

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Once again, according to the 28% of the interviewees, language barriers between transmitting and receiving agencies hinder the effectiveness of the Regulation. It seems recommendable to promote the use of electronic means of communication between transmitting and receiving agencies and, if possible, the implementation of an electronic platform where requests of transmission are entered by the transmitting agencies, and where centralize and computerize the different phases of service of document process. This platform would facilitate and speed up communication between transmitting and receiving agencies and would allow a direct control of the application of the Service Regulation by different Member States. On the other hand, the improvement and update of the electronic directory of transmitting and receiving agencies in the European Judicial Atlas would facilitate the identification of the right and nearest agency. In this sense, the outdated information displayed by the electronic directory slows down the transmission of documents.

CENTRAL BODIES: The designed functions of the central bodies, helping the transmitting and receiving agencies, seeking for solution to difficulties during the service of documents process and, in exceptional cases, making an application to the competent body are without doubt a key cornerstone of the Regulation. However, the effectiveness of the Central bodies varies between Member States, and contacting these authorities may be difficult, not only because of lack of familiarity with the Regulation, but also because of language barriers. The designation of the Central Bodies should be followed by proper training programmes and procedure to ensure that theses bodies have the required knowledge of the Regulation and of the common language, if possible, chosen by the Member States.

FORMS: Problems and solutions regarding the forms have not varied in comparison with the previous Service Regulation. They are inappropriately used and they are not sufficiently suited to real needs. The forms should be improved and filled out typed, since hand writing makes them often not readable.

INFORMING ADDRESSEE OF RIGHT TO REFUSE TO ACCEPT A DOCUMENT: The right of the addressee to refuse to accept the document because of languages requirements is a procedural guarantee with important consequences in the field of enforcement of resolutions. The Service Regulation should grant the right to defense of the addressee but also the right of the applicant to a fast development process. The receiving agency should certify not only the transmission of the document but also whether the addressee was taught about the right of refusal fulfilling correctly the Certificate of Annex I. The right to defense may be violated if the addressee does not understand the official language of the required State and there is no translation to a language he understands. Breaching of the defense rights may lead to the denial of the enforcement of a future judgment. Therefore, a new provision should be included according to which the addressee may refuse to accept documents

9 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters if they are written in the official language of the country of his domicile under the condition that he does not understands this language but he understands other official language of the EU that should be in any case identified. In this sense, article 8.1 of Regulation 1393 should be amended in the following sense: “The receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into a language which the addressee understands. In the case of service to a natural person sufficient linguistic knowledge can be assumed if the document is drafted in the official language of the receiving State. The previous legal presumption may be rejected if the addressee refused a document on grounds of lack of understanding but he/she provides the official language of another Member State he/she understands. In the case of service to a legal entity sufficient linguistic knowledge is assumed if the document is composed in the language which constitutes the official language of the place of the active centre of administration or of the place where the office is situated.

DATE OF SERVICE: Rights of the applicant and of the addressee are protected by the system of double date of transmission introduced by Regulation 1393. The main problem arises from the difficulty of establishing the dates of transfer and from the impossibility of serve a document in time when a specific date is requested If according to the law of a Member State a document has to be served within a particular period of time, and this period of time expires, the receiving agency shall immediately inform the transmitting agency by the fastest mean of communication instead of directly return it back unserved.

COST OF SERVICE. Member States use different systems to fix the rates of transmission of documents, ranging from the free of charge service to a wide variety of charges. The wide majority of complaints regarding the cost of service has to do with the high rates of some member states (29,2% of the interviewees), with the lack of transparency in the calculation of the payment of rates in Member States where such payment is not fixed in advance, and with the problems arisen by the requirement of payment in advance (21,1% of the interviewees). Problems related to the cost of service could be overcome by the creation of a uniform procedural rule in article 11 (of direct application in all Member States except for ). This rule should oblige the required Member State to fill a new form informing the applicant of the following aspects: • Cost of service required • Details of every concept charged. • Deadline for making a provision of funds. • Clear information about the recipient details, such as personal details, international bank code (IBAN and BIC code) and VAT identification number.

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Cost of service should be paid in advance, avoiding the risk of lack of reimbursement of the payment and providing the applicant with adequate protection, since the effective cost of the service is known in advance.

SERVICE BY POST. Despite the wide acceptance of this mean of transmission of documents, service by post is not advisable in terms of legal certainty. Right to refusal is not adequately protected since persons effecting the service are not properly trained on Service Regulation. Moreover, the method does not guarantee that delivery is effected to the right person. Dysfunctions detected in the service of documents by post are not connected with the need of establishing new common procedural rules different from the need of requiring registered letter and acknowledgement of receipt, but with the need of improving the proper working of the service by post.

DIRECT SERVICE. Direct service is not sufficiently known within European Union. The opposition of different Member States, and the remission to the legal conditions required in those States where this method is allowed, weaken the scope of direct service, and make this method of service of document not recommendable on grounds or legal certainty. Principle of proportionality discourages the recommendation of drafting new procedural rules related to the direct service of documents (unknown in several Member States)

CONSULAR OR DIPLOMATIC SERVICE. Consular or diplomatic channels to forward documents are rarely or infrequently used. With the current structure of transmitting and receiving agencies and its consolidation as the main system of service of documents, indirect consular or diplomatic channels (art. 12) have definitively lost its prominence. The recourse to the direct diplomatic or consular channel of transmission of documents should be limitated to exceptional circumstances. Principle of proportionality discourages the recommendation of drafting new procedural rules related to diplomatic and consular service (used only under exceptional circumstances).

ELECTRONIC MEANS OF TRANSMISSION. Recent advancements in technology have made it possible to exchange information electronically instead of relying on paper. There are significant advantages to doing so, and courts should be actively pursuing this new approach. There are several ways to exchange documents electronically, ranging from simple e-mail to sophisticated systems designed specifically to maximize the benefits of electronic service. Few benefits can be realized from simply e-mailing documents. The more features and integration that are included in an electronic service system, the greater the benefits are to users. But experience suggests that developing a sophisticated electronic service system with the features and support needed to achieve maximum benefit requires significant resources and time. Many courts are simply not able to acquire sufficient resources to develop a system, not to say technical requirements the addressee should fulfill. At the present time the absence of

11 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters technical uniform condition around Europe makes the risks of the electronic transmission of documents more important than the positive consequences of its implementation, since rights of the sender and of the addressee cannot be adequately protected, unless a new procedural rule is introduced, admitting the electronic means attested by an automatic confirmation of delivery, provided that the addressee has expressly accepted this method of service in advance. The protection of the right to refuse a document would become unnecessary if the validity of this service of documents should be conditioned to the translation of the documents served to the official language of the receiving State, although additional translation into the language the addressee understands may be included.

COMPATIBILITY WITH OTHER MODES OF SERVICE UNDER EU REGULATION: The disparity of these modes reveals a lack of coherence which seems to go against the need for improving and simplifying the system of cross-border service of judicial and extra-judicial documents envisaged by article 65 of the Treaty establishing the European Community.

The mode of transmission regulated in Section 1 of the Regulation 1393/2007 should be promoted. If Central bodies and transmitting and receiving agencies were effective in the functions assigned by the Regulation, this method of transmission would be the best one from a perspective of granting the rights of both procedural parties the applicant and the addressee, in any kind of proceedings.

While the role of the transmitting and receiving agencies is not effective enough, methods of service of documents regulated in article 13 (service with proof of receipt), 14 (service without proof of receipt by the debtor) and 15 (service effected on a debtor's representative) of Regulation 805/2004 may be used in simplified procedures, as those regulated by Regulation (EC) No 1896/2006 creating a European order for payment procedure and Regulation (EC) No 861/2007 establishing a European Small Claims Procedure.

In the light of our findings we can conclude that Regulation 1393 continues with the advance in the field of service of documents initiated by Regulation 1348. The current Service Regulation corrects the technical mistakes and loopholes detected in its predecessor (as for example, regarding the regulation of right of refusal). In this sense, main problems detected in its practical application are not concerned with the adopted technical solutions, but with the lack of training of professionals, institutions and bodies involved in its application, together with linguistic barriers. The problems observed arise also from the different standards currently co-existing with the Regulation across Member States. In this respect, the opinions expressed by the interviewees and experts who contributed to this study, constitute significant contributions that should not be overlooked, as they represent feedback from highly technical professionals directly involved in the process of transmission of documents.

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3 THE PROJECT

3.1 INTRODUCTION

The area of freedom, security and justice was created to ensure the free movement of persons and to offer a high level of protection to citizens. It is based on the Tampere (1999-04), Hague (2004-09) and Stockholm (2010-14) programmes and it derives from Title V of the Treaty on the Functioning of the European Union, which regulates the “Area of freedom, security and justice”. To establish such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market, that seeks to eliminate obstacles deriving from incompatibilities between the various legal and administrative systems, and thus facilitate access to justice. The cornerstone of judicial cooperation in civil matters is the principle of mutual recognition and enforcement of judgments and of decisions resulting from extrajudicial cases. Closely connected with that, the judicial cooperation entails the need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States.

On 26 May 1997, the Council adopted, on the basis of the EU Treaty, the Convention on the service in the EU Member States of judicial and extrajudicial documents in civil or commercial matters, together with a Protocol on the interpretation of the Convention by the Court of Justice (Official Journal C 261, 27.8.1997). Explanatory reports on the Convention and Protocol were approved by the Council on 26 June 1997. Nevertheless, the Convention has not been ratified by the Member States.

The enter into force of the Amsterdam Treaty, in 1999 meant a great advance in this matter, as incorporating it to the “first pillar” within the new Title IV (art. 61), specifying that in order to progressively establish an area of freedom, security and justice, the Council would adopt measures in the field of judicial cooperation in civil matters having cross-border implications, in conformance with the art. 65; that is, measures with cross-border impact that would include among others the improvement and the simplification of the system for cross-border service of judicial and extrajudicial documents.

It is precisely in this normative context, where the Council Regulation 1348/2000, of 29th May 2000 (OJ L 160, June 30th 2000) was placed. This Regulation related the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, and entered into force on 31st May 2001. The main content of that Regulation was based on the Convention of 1997. Three years later, on 1 October 2004 the Commission adopted a report on the application of Regulation (EC) No 1348/2000 (COM (2004) 603 final). The report concluded that the application of Regulation (EC) No 1348/2000 had generally improved and expedited the transmission and the service of documents between Member States since its entry into force in 2001, but that nevertheless the application of certain provisions was not fully satisfactory. Different types of problems were identified which could be summarised as follows:

13 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

a) Practical problems due to the fact that the Regulation was introduced only recently (for example, standards forms were not used or the provisions concerning the use of languages were misunderstood);

b) Failure of national administrations to act within the deadlines provided for by the Regulation;

c) High costs and lack of transparency concerning composition of these costs.

Trying to improve the European system on service of documents, Regulation 1393/2007 has repealed Council Regulation (EC) No 1348/2000, and the new characters of the current Regulation are:

a) Introduction of a rule providing that the receiving agency shall take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt;

b) Introduction of a new standard form to inform the addressee about his right to refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week;

c) Introduction of a rule providing that costs occasioned by recourse to a judicial officer or to a person competent under the law of the Member State addressed shall correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and nondiscrimination;

d) Introduction of uniform conditions for service by postal services (registered letter with acknowledgement of receipt or equivalent).

The new measures try to comply with some of the recommendations made on the Study on the application of Regulation (EC) No 1348/2000 on the service of judicial and extra judicial documents in civil and commercial matters and on the Report from the Commission to the Council, the European Parliament and the European and Social Committee on the application of Council Regulation (EC) 1348/2000 on the service in the Member States of Judicial and Extrajudicial documents in civil or commercial matters (COM(2004) 603 final). The study should analyze if those recommendations are still applicable and necessary in the current legal context.

The Regulation 1393/2007 establishes in its article 23 the obligation of Member States of communicate several information, under articles 2, 3, 4, 9, 10, 13, 14,15 and article 19. Based on this premise, such information has been published is periodically updated:

. The consolidated version of the communications is updated regularly: Consolidated version of the communications of the Member States (updated) PDF File 390 KB) (Updated 12.11.2010).

14 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

. Manual of receiving agencies (updated: updated 12.11.2010): This version of the manual is updated regularly. o Contents (PDF file 17 KB). (Updated: 29.07.2011) o Manual (PDF file 108,258 KB). (Updated: 29.07.2011) Furthermore, in article 24 the Regulation establishes that “No later than 1 June 2011, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation, paying special attention to the effectiveness of the agencies designated pursuant to Article 2 and to the practical application of Article 3(c) and Article 9. The report shall be accompanied if need be by proposals for adaptations of this Regulation in line with the evolution of notification systems”.

In this contextual framework, the Study aims at performing an empirical analysis of application of the Regulation. That is, to find out and notify all the circumstances that have occurred since its enter into force and applicability in all Member States, including Denmark, in accordance with the Article 3(2) of the agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters (OJ L 300, 17.11.2005, p. 55), and the decision notified to the Commission to implement the contents of Regulation (EC) No 1393/2007 (OJ L 331, 10.12.2008, p. 21).

The result of the Study lead to a synthesis reflecting the problems occurred during its application, as well as the elicitation of those Member States where such problems could have occurred. In particular, of key relevance will be the question whether through the application of the Regulation the transmission of documents between Member States has been improved and expedited.

The Study would reveal all such circumstances, trying to point out proposals that can introduce, if possible, adequate modifications, addressed to an improvement of this important EU normative instrument.

3.2 SCOPE As Council Regulation 1348/2000 of 29th May 2000, Regulation 1393/2007 established a decentralized system of service of judicial and extra judicial documents, creating bodies named “transmitting and receiving agencies”, without prejudice to the existence of other subsidiary means of transmission (such as service by post, direct service or diplomatic or consular channels).

The main new characters of Regulation 1393/2007, in comparison of Regulation 1348/2000, were the introduction of a rule providing that the receiving agency shall take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt; the introduction of a new standard form to inform the addressee about his right to refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week; the introduction of a rule providing that costs occasioned by

15 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

recourse to a judicial officer or to a person competent under the law of the Member State addressed shall correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and nondiscrimination; the introduction of uniform conditions for service by postal services (registered letter with acknowledgement of receipt or equivalent).

The scope of this Study remains limited to a partial analysis of Regulation 1393/2007. In this sense, its aim is not to analyze all the transmission systems referred to, but its application concerning the following main issues:

 Speed of transmission  Transmitting and receiving agencies  Central Bodies  Forms  Informing addressee of right to refuse to accept a document  Date of service  Cost of service  Service by post  Direct service  Consular or diplomatic service  Electronic means of transmission

Regarding this task, European Commission has been highly interested in the identification of the current national rules that govern the service of documents in each of the 27 Member States, as well as the description of the different types of service in order to establish, if possible, minimum standards for the cross-border service of documents, paying special attention to the direct service of documents and the possibility of promoting the service of documents by electronic means.

The complexity of the Study has been increased by the fact of the different professions involved (a wide diversity of them, as for judges, lawyers, huissiers de justice, bailiffs...), the number of Member States bound by the Regulation and the different level of application of the Regulation among the 27 Member States. The Analysis is based on the opinion gathered at over 465 interviews across the EU and the knowledge and reflections of 38 European experts that have enriched the findings and recommendations of this Study.

16 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

In the following pages we will try to present in a clear manner the situation with regard to the application of the Regulation, based on the views expressed by the experts and interviewees on the aforementioned aspects of this European legal instrument.

3.3 TEAM

For this project, MainStrat has counted with the expertise of legal specialists from the University of the Basque Country, the University of Deusto and the Public University of Navarra. In particular, Professors Mr. Juan José Alvarez, Ms. Marta Casado and Mr. José Luis Iriarte acted as legal assessors in this study. This study relied on their valuable expertise for the execution of the different surveys, providing as many specialized contacts as possible, and most importantly, their assessment of the analysis of the survey results and comments from all contacted respondents.

3.4 SURVEYS

This Study was designed principally around gathering the opinions of professionals involved in the application of the Regulation. Opinions were gathered by means of four separate questionnaires addressed to different agents involved by reason of the type of data to be gathered each time: national rules on the service of documents, statistical information the Central Entities, the opinion of European experts selected by our legal experts and a self- administered questionnaire (on-line) globally addressed to different professionals. In this last case, an invitation to participate was sent to 13375 professionals across Europe: central entities of all Member States, transmitting/receiving agencies, interested bodies such as the European Judicial Network, European and National professional associations and legal professions involved in the application of the Regulation. The Survey was carried out over more than one month. For the purpose of this report 465 survey responses received were used for our analysis.

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The distributions of the survey responses by profession and Member State are as follows:

Profile of the participant by Profession (n=465)

Bailiff 30,8%

Judge 20,2%

Solicitor/Barrister 10,3%

Attorney 8,4%

Lecturer/Professor 5,8%

Institution 3,0%

Legal Assistant 2,6%

Court Clerk 2,2%

Public Notary 1,1%

Other 7,1%

NA 8,5%

18 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

Profile of the participant by Member State (n=465)

Germany 21,3% 11,8% 9,5%

Belgium 7,1%

Spain 5,4%

Lithuania 4,7% Czech 3,7% Republic 3,2% 2,4% 2,4% Luxembourg

2,2% 2,2% Latvia 2,2% Romania Estonia 1,9%

Portugal 1,9%

Denmark 1,7% 1,7% 1,7% 1,7% United 1,7%

Kingdom 1,5% 1,5% 1,3% 1,3% Ireland 1,1%

Malta 0,9%

Poland 0,9%

NA 1,1%

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4 STUDY FINDINGS

4.1 SPEED OF TRANSMISSION AND SERVICE 4.1.1 Introduction

Regulation 1393 has introduced some deadlines to be complied in the transmission of documents. They have been established by reasons of speed and efficiency in judicial procedures in civil and commercial matters. So, all the necessary steps to serve a document have to be effected in the shortest period of time. When the service of documents is effected through transmitting and receiving agencies, the period of time considered as reasonable is one month2. However nothing is said when the transmission of documents takes place by post, direct service or diplomatic channels. It might be due to the fact that these means of service are not under the control of specialised bodies.

In any case the philosophy that underlies to all means of transmission is that service of documents should be effect in the shortest period of time.

4.1.2 Previous advances in the service of documents

Regulation 1393 has introduced relevant changes with regard to the previous situation that has contributed to speed up the service of documents. Mainly, the fact that information relating to each Member State is available online, and translated into each official language of the European Union. Specifically;  Identification of the territorial competent transmitting and receiving agencies and contact details

 Determination and contact details of the central bodies

 Language requirements

 Forms

 Communications of the different Member States regarding their peculiarities on the following fields:

• Transmission of documents: languages

• Refusal to accept a document

• Date of service

• Certificate of service and copy of the documents served: languages

• Costs of service

2 Article 7.2

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• Service by diplomatic or consular agents

• Direct service

• Defendant non entering an appearance

• Agreements or arrangements to which Member States are Parties

• Means of receipt of documents However, the availability of this information does not guarantee by itself the speed of the service process (as it is pointed out by the fact that in some Member States the average number of days required for service of documents is more than 300 days).

4.1.3 Practical problems

There is a general perception that the entry into force of Regulation 1393 and online information has improved and speeded up the service of documents among Member States. Only 21,5% of the interviewees do not share this assertion. However, when comparing the time invested for the completion of a request under Regulation 1348, with the current situation there are no breakthroughs:

AUSTRIA Receiving 1-3 months 1-2 months + Transmitting -1 month -1 month = BELGIUM Receiving 1-3 months 1-2 months + Transmitting ------FINLAND Receiving 1-3 months 1 month + Transmitting 2-6 months 1 month + FRANCE Receiving 1-2 months 2-4 months - Transmitting --- 1 month GERMANY Receiving 1-3 months 1-2 months + Transmitting 1-2 months 1-2 months = GREECE Receiving 2-6 months 3-4 months + Transmitting -1 month -1 month = IRELAND Receiving 2-3 months 2-3 months = Transmitting -1 month -1 month = ITALY Receiving 2-3 months 3-6 months - Transmitting 2-3 months 2-3 months = LUXEMBOURG Receiving 1-2 months 1-2 months = Transmitting --- 1-2 months Receiving 1-6 months 2-3 months + Transmitting --- 9 months - Receiving 2-6 months 3-5 months = Transmitting 1-2 months 1-4 months - SWEDEN Receiving 1-2 months --- = Transmitting -1 month --- =

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In any case, there are still many factors that need to be taken into account in order to progress in the European Judicial Cooperation:

 Variable criteria in relation to Member States There is no a uniform application of Regulation 1393. It is difficult to draw a general conclusion applicable to all Member State, considering the diversity of Member States and its situation previous to the entry into force of the Service Regulation. As for the responses obtained, the average number of days required for effecting a service of documents ranges from less than 30 to 492 days.

As transmitting States, the fastest ones seem to be Austria, Greece, Ireland and Sweden, investing less than one month on each application. On the opposite side is Portugal (more than 9 months).

When being receiving States, the fastest Member States are Finland and Estonia (1 month), Austria, Belgium, Germany, Luxembourg, Denmark, and Poland (between 1 and 2 months). On the opposite side, Italy, Bulgaria and Spain (between 3 and 6 months) or Slovakia (between 2 and 5 months)

It has to be pointed out that countries as the , Cyprus, Denmark, Estonia, Hungary, Lithuania, Malta, Poland or Slovenia, even being Member States that did not participate on Regulation 1348 (and therefore did not have a previous experience), do not invest more than 1 month as transmitting Member States or 3 months as receiving States. However, experienced Member States as France, Italy, Portugal or Spain have worsened their effectiveness in comparison with the time needed for the completion of a service request under Regulation 1348 (almost doubling the needed time).

 Delay in identifying the competent receiving or transmitting agency The main option chosen by Member States is the designation of several transmitting and receiving agencies. The determination of the territorially competent body is conditioned in most cases by the domicile of the addressee. Whenever the address is unknown is not possible to identify the competent body and support of the receiving agency would be essential to overcome this barrier. However, as said by article 1.2, Regulation 1393 does not apply when the address of the addressee is unknown. This provision may deprive Regulation 1393 of important effects since, each time more, public registers are computerized and this information is easily available to central bodies. What is clear is that tools available to these bodies in order to identify the address of the recipient are much more than those available to the applicant domicile in a different Member State. The scope of the Regulation could be improved if article 1.2 was derogated and Central Bodies assume functions of locating the unknown address when necessary. As shown by the answers of the Experts in the Study of Regulation 1206/2001, in most of the Member States there are no restrictions to the access by judicial authorities to personal details of

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the defendant (not only related to the address but, what is more important, to bank details, description of assets…). Each Member State should follow its procedural rules to obtain these data but, finally, they are available to their judicial authorities. While public registers are not interconnected, the fastest way to obtain the address of a natural or legal person that is supposed to be domiciled in a Member State is to ask for the cooperation of the authorities of that specific Member State or to use the consular way3. In any case, in order to amend Regulation 1393/2007 obliging Central Bodies to assume this function, a deeper study would be necessary to know how it works in each Member State, how long does the judicial way take in comparison with the consular one or who assumes the cost.

Moreover, according to the responses obtained, online information does not always address to the competent agency. Delays in updating it may explain this discrepancy between the information provided by Member States and the practice.

 Language problems As it is explained in the subsequent parts of this Study, language is the ever-recurring problem in the practical application of the Service Regulation. Most delays and dysfunctions are directly connected with linguistic problems. Agencies designated by Member States are not always fluent in the chosen languages. Therefore, request forms non translated into the official language of the receiving State are rejected by the mere fact that the receiving agency does not know the language in which the document is drafted, irrespective of being one of the languages accepted by its own Member State. Or, requests addressed to the agencies get unanswered because of lack of knowledge of the language used. From the survey addressed to the professionals, several problems have been detected. The table below shows them:

MEMBER COMMENT STATE Germany Denmark and Italy do not use for the return, the EU form, but responded in a way that need to be translated. Slovakia I believe it is faster in general, but is not much faster in Slovakia. Here the service often takes several months, even a year. Germany I can only reflect my experiences from last year. With regard to Poland, I must say to the effect that the delivery against registered mail with return receipt so not often work properly. Belgium Indeed, all depends of the Member State you´re sending de documents. My experience is that the Netherlands are very fast, France not because they´re asking to pay an amount before notifying. With the Central authorities the Member States of the South of Europe are slow. France For Ireland and the UK a significant number of requests do not succeed. There is no feedback.

3 Relating to the interconnection of central, commercial and companies registers, vid. Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directives 89/666/EEC, 2005/56/EC and 2009/101/EC as regards the interconnection of central, commercial and companies registers (COM(2011) 79 final), and related documents.

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4.1.4 Opinions and Proposals

Our main proposals at this stage, and taking into account the input from the Survey are:  In general terms the service of judicial and extrajudicial documents has improved after the entry into force of the Service Regulation. It would be helpful if Member States could reach an agreement on using a common language in the communications between transmitting and receiving agencies.  It seems recommendable to foster the development of new programmes and training activities concerning the Regulation, especially in those Member States less familiar with the tools introduced by the Regulation.

4.2 TRANSMITTING AND RECEIVING AGENCIES

4.2.1 Introduction

According to article 7.2, the receiving agency shall take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt. If it has not been possible to effect service within one month of receipt, the receiving agency shall immediately inform the transmitting agency by means of the certificate in the standard form and continue to take all necessary steps to effect the service of the document, unless indicated otherwise by the transmitting agency, where service seems to be possible within a reasonable period of time. This period of one month is established by reasons of speed and efficiency in judicial procedures in civil and commercial matters. So, all the necessary steps to serve a document have to be effected in the shortest period of time.

4.2.2 Brief approach to the system of service of documents in Regulation 1393

4.2.2.1 Transmitting and receiving agencies

The main feature of Regulation 1393 consists of organising the direct transmission between the transmitting agencies and the receiving agencies designated by each Member State. A central body in each Member State has an exceptional function of support in actual transmission (supplying information to the transmitting agencies; seeking solutions to any difficulties which

24 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

may arise during transmission of documents for service; and, in exceptional cases, forwarding a request of service at the request of a transmitting agency).

Transmission and service through agencies is dealt with in section 1 of chapter II (judicial documents) of Regulation 1393. The document to be transmitted has to be accompanied by a request drawn up using the standard form of the annex I, and the receiving agency has to serve itself or have the document served according to a legal method of the requested Member State or by a particular method asked for by the requesting authority provided it is not incompatible with the law of the requested Member State. Equally, once the formalities of service have been completed, a certificate of the outcome has to be drawn up in the standard form of the annex and addressed to the transmitting agency. The proper functioning of this system required the right determination and selection of the competent transmitting and receiving agencies.

4.2.2.2 Other means of transmission In addition to service through agencies, "other means of transmission and service of judicial documents" are provided. Among these, service by post (direct service by post to persons residing in another Member State is allowed and Member States can only specify the conditions under which this method of service will be allowed, but within their competences)4, direct service5 and service of documents through diplomatic and consular channels6. Due to the very detailed regulation of formal service in the first section (Articles 4-11 of the Regulation) and the comparatively brief regulation of “other means of transmission and service of judicial documents” in the second section (Articles 12-15 of the Regulation), legal Doctrine held that service by post was subsidiary to formal service7. However, upon a reference for a preliminary ruling by the Belgian appellate court, the ECJ discarded such a perception. The ECJ emphasized that the Regulation does not indicate any hierarchy between the ways of service provided for. As the Regulation’s purpose to guarantee successful service with full reserve to the interests of the addressee, is ensured by all of the ways of service provided for in the Regulation. Direct service by post, direct service and the consular and diplomatic channels can be considered to be a way of service of equal rank as service by way of judicial assistance8.

4.2.3 Practical problems

There is a general perception that the entry into force of Regulation 1393 has improved and speeded up the service of documents among Member States. Only 21,5% of the interviewees do

4 Article 14 5 Article 15 6 Article 12-13 7 Heß, “Neues deutsches und europäisches Zustellungsrecht”, Neue Juristische Wochenschrift, 2002, pp. 2417-2422; 8 C-473/04, of 9 February 2006 (Plumex v Young Sports N.V.), paras. 19-22.

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not share this assertion. However, there are still many factors that need to be taken into account in order to progress in the European Judicial Cooperation.

 Transmitting and receiving agencies are not familiar with Regulation 1393 29% of the interviewees share this opinion, highly worrying if taking into account that the service of documents between transmitting and receiving agencies is the cornerstone of the solution provide by the Regulation. Some detected practical problems that show this lack of familiarity are the following ones: o Answers to the requests are often sent by the receiving agencies in their local language, making difficult its comprehension: o Additional texts are added to the forms, once again drafted in the official language of the required State. o When the request is sent to a non competent receiving agency, normally it is sent back to the forwarding agency, without making any effort to find the territorial competent agency. o Receiving agencies do not accept documents only drafted in the language understood by the addressee if it is not the official one, ignoring the literal wording of article 8.1. To conclude, the lack of familiarity with the Regulation, far from being improved has increased in comparison with the previous Study on Regulation 1348 (29% of the interviewees, in comparison with the 25% some years ago).

 Communication between transmitting and receiving agencies is not always fluent: Means of communication 28% of the interviewees share this opinion, highly worrying if taking into account that the service of documents between transmitting and receiving agencies is the cornerstone of the Regulation. It is at least surprising that some years after the previous Study on the application of Regulation 1348 the general opinion about the problems of communication between agencies has worsened (28%, in comparison with the 23% in 2004). According to the information provided by the Member States and displayed in the Atlas web page, the means of receipt of documents accepted by each Member States are the following ones:

MEANS OF COMMUNICATION

LETTER POST TELEPHONE FAX E_MAIL OTHERS MEMBER STATE Austria X X X X

Belgium X X X X

Bulgaria X X X

Cyprus X X X

Czech R. X X X

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Denmark X X X

Finland X X X

France X

X X X Germany X Private for receipt and administrative administrative for receipt and dispatch courier dispatch reasons reasons Greece X

Hungary X X X

X X Ireland Service X administrative administrative provider reasons reasons Italy X

Latvia X X X

Lithuania X X

Luxembourg X X available on request Netherlands X X X

Poland X

Portugal X

Romania X X

Slovakia NA NA NA NA NA

Slovenia NA NA NA NA NA

Spain X

Any other means Sweden X X agreed in

the specific case U.K X X

Conventional post is the principal mean of transmission between bodies, and fax the second one. Although the use of internet is quite accepted, and in spite of its undisputed speed, electronic transmission is not frequently used in the practice. In fact, most of the respondents (40,6%) consider that this mean of transmission is never used and 27,5% that only exceptionally. Just a reduced number of the interviewees asserts that electronic means are very frequently used (4,3%) or rather frequently (5,6%). In this sense, the lack of use of new technologies in the communication between agencies contrasts with the development and implementation of electronic means of transmission at a social and economic level. In fact, the analysis of the national Law shows that, although electronic service of document is not compulsory at national level, most internal legislations foresee this possibly under certain security and authentication

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requirements. Security and authentication requirements that may be more strictly controlled in the communications between transmitting and receiving agencies, than when transmitting the document to the final addressee. Because of that, current arguments contrary to the general acceptance of electronic means of transmission as mean of service of documents (lack of proof of notification, uncertainty, lack of a generalized system of electronic signature, differences between internal legislations…) do not apply in the communication between transmitting and receiving agencies. As specialized bodies, they are responsible for controlling the legality of the service of documents to the final addressee, irrespective of the mean of communication used between then (that should be chosen by reasons of efficiency and speed).

 Difficult identification of the territorially competent receiving agency In general terms its identification has been improved. In theory, the current system allows the determination of the competent receiving agency just entering the name of code of the addressed location in the Atlas web page. However, not always the system works properly because the list is not updated or just because information provided by Member States is not right. For example, not always introducing the post code of a city the transmitting and receiving agencies are displayed (for example, 48009 – very Center of Bilbao). And, if the name of the city is introduced (instead of the postal code), sometimes a message of “No municipalities found” appears (for example, Warsaw).

 Linguistic barriers Communication between transmitting and receiving agencies is, once again, hampered because of language barriers. Request of service are returned just because of not being translated into the official language of the receiving agency, or doubts posed by phone, mail or fax get unanswered because of lack of understanding.

From the survey addressed to the professionals, several problems have been detected. The table below shows them: MEMBER STATE COMMENT

Sweden I have tried to contact the receiving agency in France on the e-mail address listed in the contact details in order for Svea Court of Appeal to be able to pay the requested fee of 50 EUR, but no one has answered. My message was written in French. I will now try to get in touch with them by post. Information about bank account etc. should be listed somewhere to enable the service of documents in cases where a fee has to be paid at the same time as/before the document is forwarded to the receiving agency. Czech Republic some less active states (Spain, Italy) shall be encouraged; using English-only would be helpful

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4.2.4 Opinions and Proposals

Our main proposals at this stage, and taking into account the input from the Survey are:  Direct transmission of documents between transmitting and receiving agencies is the quickest and safest mean of transmission of documents in terms of protection of the procedural parties´ rights. Its general use should be promoted, without derogation of the other means of transmission.  It would be desirable that service by post as mean of communication between transmitting and receiving agencies should be limited to cases were the sending of original documents is necessary, because it slows down the service of documents and impede the immediacy of communication.  It should also be necessary to promote the use of electronic means of communication between transmitting and receiving agencies, because it adequately combines speed with the non immediacy that allows to solved linguistic barriers in cases in which the concrete person of the agency is not fluent in a language accepted by the Member State (other than the official one).  A European electronic platform where requests of transmission were entered by the transmitting agencies, and where centralize and computerize the different phases of service of document process not only would facilitate and speed up communication between transmitting and receiving agencies, but would allow a direct control of the application of the Service Regulation by different Member States.

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4.3 CENTRAL BODY

4.3.1 Introduction

Regulation 1393 establishes a decentralised method of service of documents, making communication among local bodies the key cornerstone on which to build the system of European transmission of documents. Central bodies are designed by European legislator for "supplying information to the transmitting agencies", "seeking solutions to any difficulties which may arise" and "forwarding, in exceptional cases, at the request of a transmitting agency, a request for service to the competent receiving agency”.

4.3.2 Remarks on the functions assigned

The implementation of direct transmission between transmitting and receiving agencies serves the improvement and speeding up of international service between Member States sought by the Regulation. Therewith, the inconvenient and slow path through central government bodies, provided for in Article 2 of The Hague Convention, is waived. Currently, a national court, which according to its internal procedural law is competent for the service to a foreign country, may directly call on the foreign receiving agency. The institution of central bodies in each Member State is retained under the Regulation; however, according to Article 3 they only have a supporting function, particularly in cases of ambiguity regarding the competent agency in the receiving State. Article 4.2 of the Regulation serves the speeding up of service, according to which the transmission of documents may be carried out ‘by any appropriate means’, provided that the content of the document received is true and faithful to that of the document forwarded and that all information in it is easily legible, opening the possibility of service by way of an electronic document (e-mail) of by fax. The standard form in the Annex to the Regulation, which, according to Article 4.3, should be used by the transmitting agency and which has to be principally filled out in the official language of the receiving Member State in order to prevent problems of understanding, further facilitates service.

4.3.3 Practical problems

Opinions regarding the functioning of Central Bodies vary always according to how diligent and effective are the body requested. So, it may be inferred that problems vary from one country to another. Some countries, that have a long tradition on cross-border service of documents, are really effective on the service provided. Others, are not so efficient or do not have human and technical resources enough to fully comply with the functions assigned. In any case, main detected practical problems are:

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 Lack of knowledge of language accepted by the State Member to which they belong to  No computerization of some Central Bodies  Unjustifiable delays on attending the requests transmitted by the decentralised agencies  Documents are sent back in cases of non territorially competent authorities  Lack of effort to locate the addressee  Lack of interest for searching a solution when difficulties arise

In any case, Central Bodies together with transmitting and receiving agencies are the basis over which the main system of service of documents under Regulation 1393 is built. The dysfunctions detected, which mainly concern the lack of familiarity with the Regulation and the non sufficient knowledge of the language accepted by the Member States (normally English), endanger the most effective method of transmission of documents.

From the survey addressed to the professionals, several problems have been detected. The table below shows them: MEMBER COMMENT STATE Netherlands 1. Example very effective: Germany. Not effective: Bulgaria (language problem) 2. If there are problems with the service, we’ll ask our central body to contact the central body of the relevant Member State. Belgium The Member States having demographic registers or data bases of commercial societies are more efficient than the ones with no source of information. Certain central authorities do not make any effort to identify or locate the addressee of a judicial document. It is sometimes difficult for the transmitting body to communicate the most recent address to the receiving entity and our request of previous identification do not succeed

In any case, when contacting different Central Bodies for obtaining the data of the present Study, it has been observed the following practical problems: - It was difficult to contact with Austria, Romania, Slovenia, Lithuania, and Ireland. - Contact details of Hungary and Malta seemed wrong or at least alternative telephone numbers, mails and address had to be sought. - Contact person of Italy, Romania and Bulgaria did not speak English, French, or Spanish. - It has been impossible to contact with Gibraltar.

4.3.4 Opinions and Proposals

Our main proposals at this stage, and taking into account the input from Survey, are:

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 Central bodies are a key cornerstone of the system of service of documents established by Regulation 1393. To provide fully assistance to transmitting and receiving agencies, Central Bodies must employ professionals trained of the service of documents, fluent in the languages most commonly accepted by Member States and able to answer doubts posed to them.  In order to comply with their functions, Central Bodies should also be provided with the means of communications and new technologies generally used nowadays. Otherwise, the channel of communication between transmitting and receiving agencies and central bodies is slowed down.  Information regarding Central Bodies available in the Manual should be updated and contain the necessary contact details. In this sense, not only the address, but also telephone number, fax and e-mail address should be provided.  A deadline for answering the request transmitted by the agencies should be included. Otherwise, unjustifiable delays keep on arising and divergences on judicial assistance among Member States will vary with detriment of the procedural parties’ rights.

4.4 FORMS

4.4.1 Introduction

Regulation 1393 sets out different types of Form, included in the Annex of the Regulation. The forms should be attached to the documents to be served, and filled out in the different phases of the judicial procedure. The aim of the Forms is the guarantee of the speed, certainty and efficiency of the transmission of the parties involved for overcoming the barriers of the cross-border service of documents.

4.4.2 Types of Form and practical problems

a) Types of Forms F.1 Request for service of documents (art. 4.3) This Form constitutes the first step of the service of documents process, with the request for the transmission of documents from the transmitting agency to the receiving one.

F.2 Acknowledgement of receipt (art. 6.1) This acknowledgement must be sent by the swiftest possible means of transmission as soon as possible after receipt of the document and in any event within seven days of receipt.

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F.3 Notice of request and document (art. 6.3) This Form and document must be returned on receipt when the request for service is clearly outside the scope of the Regulation or if non-compliance with the formal conditions required makes the service impossible.

F.4 Notice of retransmission of request and document to the appropriate receiving agency (6.4)

This Form should be completed and forwarded to the transmitting agency when the receiving agency lacks territorial jurisdiction. In this case, the receiving agency must forward the request together with the documents to the receiving agency having territorial jurisdiction in the same Member State.

F.5 Notice of receipt by appropriate receiving agency having territorial jurisdiction to the transmitting agency (art. 6.4)

The territorially competent receiving agency that has received the Form of request of transmission must send this Form of notice of receipt to the transmitting agency, as soon as possible and in any case within seven days of receipt.

F.6 Certificate of service or non-service of documents (art. 10) When the formalities concerning the service of the document have been completed, this Form shall be drawn up and addressed to the transmitting agency, together with a copy of the document served if it has been previously requested.

F.7 Information to the addressee about the right to refuse to accept a document Form used by the receiving agency to inform the addressee about his right to refuse to accept the document at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into a language he understands or into the official language of the Member State addressed (if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected). b) Practical problems The main difficulties pointed out by the general survey are the following:  Forms are not always filled and forwarded, and in fact, according to the 2,6% of the interviewees they are not used at all.  Forms are not readable because of completed in handwriting (24,1%).  When Forms are filled out on-line, the final result is not user-frien

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 Acknowledgment of receipt is often missing.  The exact date of handing over the document is not always clear, especially when the document is forwarded several times. Moreover, according to the 17,2% of the interviewees, date is not filled in.

4.4.3 Language barriers

a) Language accepted for transmission One of the main problems of cross-border service is the translation of the documents into a language comprehensible, not only for the defendant, but for the persons, bodies or institutions involved in the transmission in order to prevent problems of understanding. In comparison to the Hague Convention, the Regulation furthermore facilitates language problems, because a translation into the official language of the receiving State is no longer necessary in every case. Forms are to be completed in the official language of the State addressed or, if there are several official languages, one of the official languages of the place where service is to be effected, or in any other language that the State has indicated it can accept. Each Member State has communicated European Commission language admitted for the reception of requests9.

LANGUAGE ADMITTED FOR RECEPTION OF REQUESTS MEMBER STATE EN DE FR ES IT DU BG SK CZ FI LT LV PL PT RO SE SL DA GR Austria x x

Belgium x x x x

Bulgaria x x x

Cyprus x x

Czech R. x x x x

Denmark x x x

Finland x x x

France x x x x x

Germany x x

Greece x x x

Hungary x x x

Ireland10 x

9 They appear updated in point IV of the Manual of receiving agencies available at http://ec.europa.eu/justice_home/judicialatlascivil/html/ds_docs_en.htm?countrySession=18&#Manual. 10 Ireland also accepts the reception of documents in Gaelic.

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Italy x x x

Latvia x x

Lithuania x x x

Luxembourg x x Malta x

Netherlands x x

Poland x x x

Portugal x x x

Romania x x x

Slovakia x x

Slovenia x x

Spain x x x x

Sweden x x

U.K x x

The previous table shows that, except for Luxembourg, English is the language commonly accepted by all Member States. Languages most frequently used and admitted among Member States are English and French. Although it is not possible to talk about a language common to all Member States b) Practical problems The ever-recurring problem of the language barriers is present in each and every one of the application problems of Regulation 1393, although its intensity varies among Member States, and even among professionals of the same Member State. The main practical problems detected are the following:  Sometimes they are written notes in languages not accepted by the forwarding State  The need to attach Annex II (F.7 Information to the addressee about the right to refuse to accept a document) in all languages increase the cost of the postal service  Often receiving agencies require that the Forms are written in their official language, irrespective of the language accepted by its Member State.  The acknowledgment of receipt not always is translated into the official language of the forwarding Member State

From the survey addressed to the professionals, several problems have been detected. The table below shows them:

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MEMBER COMMENT STATE Belgium Italian authorities practically never use the certificate form Germany Italy not commonly used form for proof of delivery. Belgium Particularly the south European countries like Spain, Portugal or Italy do not know anything.

Netherlands There are many cases of which the forms are filled incorrectly and/or incomplete. This varies between not sending a form provided by the European Commission (some receiving agencies have made their own forms, handmade forms are not accepted by the Dutch Court), not providing a translation accepted by The Netherlands (especially Italy will not provide any forms translated in the accepted languages), not sending specific forms (we rarely receive an acknowledgement of receipt), not correctly filled forms (any reference number and/or name of the parties), forms written by hand of which we are unable to understand and/or forms not signed and/or legalized.

4.4.4 Opinions and Proposals

Our main proposals at this stage and taking into account the input from the Survey are:  According to the communication forwarded by the Member States, it seems recommendable to establish the use of the English version of the Forms in the communication between transmitting and receiving agencies.  Parallelism in the design of the different language versions of the Forms may help to identify its content, without need of translation in most cases.  The use of Annex II, regarding information about the right to refuse, may be simplified. Translations to languages of each Member State increase the cost of the service, but it is necessary since the lack of understanding of the documents served may constitute a cause of denying the enforcement of a resolution, under article 34.2 of Regulation 44/2001.  A brief description about the use of each Form should be included on them.  The printed version of the Forms completed online should be improved, in order to make it more user-friendly.  Forms should always be completed in typed, avoiding reading problems derived from handwriting.  Once again, main problems dealing with forms are related to the lack of knowledge of the Regulation by the transmitting and receiving agencies, particularly worrying in Italy, Spain and Portugal (according to the comments of the interviewees).

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4.5 INFORMING ADDRESSEE OF RIGHT TO REFUSE TO ACCEPT A DOCUMENT

4.5.1 Introduction

Article 9 aims to guarantee the procedural right of the addressee, who is allowed to refuse the document served if it is not drafted in a official language or one of the official languages of the place where service is to be effected or in a language he understands. This provision incorporates technical improvements suggested in the previous Study, what has had a direct impact on the decrease of the application problems related to right to refusal.

4.5.2 Informing addressees of rights

Language is one of the main causes that slow down the service of documents within the European Union but the efficiency in the service of documents must not infringe the right of the addressee to understand and comprehend the content, scope and consequences of de document served. The question of in which circumstances a translation has to be attached to the document to be served according to the Regulation on Service, and what effect the lack of such a translation has on service cannot be answered easily.

This strain generated with the problem of the language, as a guarantee that should be above all protected, and as one of the main causes of delay in the service of documents, try to be resolved by the Regulation through two phases of information to the parties involved:  First phase: Informing the applicant: Previously to be forwarded, and according to article 5.1, the applicant shall be advised by the transmitting agency that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8, that is: a) The official language of the State addressed; or b) A language which the addressee understands. The applicant shall also be informed that all costs of translation prior to the transmission of the document will have to be borne by him, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs (art. 5.2).  Second phase: Informing the addressee: After being forwarded, and according to article 8, the receiving agency shall inform the addressee, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into a language which the addressee understands; or into the official language of the Member State addressed (or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected). Transmitting and receiving agencies play a key role. Regarding the transmitting agency, as they are fully aware of the content of Regulation 1393, they try to prevent the negative consequences

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of not using the adequate language in the transmission of documents. This preventive work involves a significant saving of expenses and time, although it has a merely informative character. The forwarding agency cannot oblige the applicant to translate the document into a different language. It is up to him to follow the guidelines of the transmitting agency or not. Regarding the receiving agency, its role is to transmit the received information to the transmitting agencies and it belongs to the relevant judge to decide on the validity of the refusal of the document.

4.5.3 Exercises of this right

 Mean of information From the information gathered from the different European experts consulted it has been possible to extract that the recipient is informed about his right to refusal in a written way. Only in Portugal information is provided orally by the serving officer although refusal is mentioned in the certification of the cited acts.

 Language of information Information is provided in any case in the official language of the requested State, although sometimes information is also provided in a language understood by the addressee.

 Proof of the information of the right to refusal Information of this right is normally proved by the signature of the addressee or by a note made by the officer in his statement of service.

 Consequences of the refusal A distinction must be made between refusal supported on article 8.1 or unjustified refusals. Consequences of the first one are regulated in Regulation 1393 (“the service of the document can be remedied through the service on the addressee in accordance with the provisions of this Regulation of the document accompanied by a translation into a language provided for in paragraph 1. In that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed. However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2)”).

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In most legal systems, the consequence of an unjustified refusal is to deem the document served:

. ESTONIA: Section 325. Refusal to accept procedural documents If a person refuses to accept a document without good reason, the document is deemed to have been served on the person as of the refusal to accept the document. In such case the document shall be left in the dwelling or business premises of the recipient or placed in the recipient's post box. In the absence of such premises or post box, the document shall be returned to the court. The refusal shall be certified by a delivery notice which must be returned to the court without delay (sections 313 and 315 (3) of CCP). This does not apply in case of justified refusal under art. 8 of the Regulation.

. FRANCE: For signification: according to art. 656 Code de procedure civile: “if no one may or is willing to receive the copy of the process and if it appears, from the inquiries made by the bailiff to which a reference is made in the writ of service, that the addressee lives at the address indicated, the service will be deemed to have been made at the place of domicile or residence.

In the latter event, the bailiff is bound to deposit a copy of the process at the city hall on the same day, or, no later than the first day on which the city hall services are open to the public. The mayor, his deputy or the town clerk will refer in the delivery list and will give a receipt.

The bailiff will leave at the place of domicile or residence of the addressee a non-delivery notice in pursuance to the provisions of the preceding article. Such notice must state that a copy of the process must be collected as soon as possible from the city hall, against a receipt or annotation, by the interested party or by any person specially authorised The copy of the process will be kept at the city hall for three months. At the expiry of this time-limit, it (the city hall) will be discharged from keeping the same. The mayor, his deputy or the town clerk may, at the request of the addressee, will transmit a copy of the process to another city hall where it may be collected under the same conditions”.

• GERMANY: Under German Procedural Law the addressee is able to refuse a document without any harm in a situation like a mistaken identity, but the law does not provide the need for informing the addressee about a “right” to refuse the documents served. If the document served is refused without good reason, the document is regarded as being served.

• ITALY: Art. 138 Code of the Civil Procedure. In case of refusal by the addressee, the court officer note it down in his registry note, and the notification is considered as effected.

• LATVIA:

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The server makes a mark in a document mentioning reasons of refusal, date and time. It is not an obstacle to heir a case.

• LITHUANIA: If the document served is refused by the addressee, the court informs the Ministry of Justice as central body responsible for supplying information to the transmitting agencies, and informs the sending agency about reasons for not serving the documents.

• PORTUGAL: In case of refusal to sign the citation, the execution agent gives notice that the documents stay at his disposal on the administrative services of the Court, mentioning it in the certificate. The Secretary will afterwards notify the person to be served by registered post, with the indication that the documents can be found there.

If the execution agent or the Court officer are unable to carry out their task, but it is confirmed that the person to be cited lives or works in the indicated place, a note should be left to another person (for instance someone that lives or works with the person to be cited or a neighbour) that is in good conditions of transmitting the precise date and hour for another attempt of serving the documents. If in that precise date and hour, the person to be cited is not present, the citation is done on the person that is in better conditions of transmitting the citation to its addressee.

Whenever a third party receives a citation and does not transmit it to the person that should have been served, this amounts to a crime of disobedience. If the citation is done in a person that does not live with the cited party, this responsibility finishes if the elements are given to a person of the house.

Whenever the cooperation of third persons is unavailable, the citation is done publicizing in the most appropriate place and in the presence of two witnesses the notice of citation, with the indication of all documents that should mandatorily be transmitted to the person to be cited, declaring that the duplicates and documents are available at the judicial secretary.

• ROMANIA: Pursuant to Article 92 of the Code of Civil Procedure. "The summons shall be handed personally to the addressee, who will sign the certificate of receipt, the serving officer certifying her/his identity and signature. (2) If the addressee, being at home, does not want to receive the summons or, receiving the same, does not want or cannot sign the certificate of receipt, the officer shall leave the summons in the hand of the addressee or, in case of refusal to receive the summons, the officer shall post the same on its front door, recording the circumstances in a minutes. (3) If the addressee is not found at home or if, in the case of hotels or buildings consisting of several apartments, he/she did not indicate the room or apartment where he/she lives, the agent shall hand over the summons, in the first case, to a person in the family or, in lack thereof, to any person who lives with him/her, or who, usually, receives the correspondence, and, in other cases, to the administrator, the keeper, or the one who usually replaces him/her; the person

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receiving the summons shall sign the certificate of receipt, the officer certifying his/her identity and signature and filling in a report on the followed procedure. 4) If the persons shown in the preceding paragraph do not want or cannot sign the certificate of receipt, the officer shall draw up minutes, leaving the summons in their hands; if those persons do not wish to receive summons or are not present, the officer shall post the summons either on the front door of the addressee or, if there is no indication on the exact apartment or room, on the main door of the building, also drawing up minutes about all these. 5) The summons cannot be handed to a minor under the age of 14 or to a person incapable of judgement. The power of judgement is presumed until contrary proof. 6) The provisions of this article shall apply also for communication or notification of any procedural act.” • SWEDEN: The addressee may have returned the document stating that he refuses to accept it because he does not understand the language used. And a certificate of non-service of document may have been sent to the requesting authority.

 Information of the right to refusal of non judicial documents In all Member States the same system of judicial documents applies. There is no express rule.

4.5.4 Practical problems arising from this right

The claimant seeks to limit the costs incurred in international service, which he has to advance and which he has to bear in case service fails. On the other hand, the defendant’s main objective is to be informed as comprehensively as possible about the proceedings instituted against him abroad. This especially presupposes that the defendant understands the writ served to him. One of the main problems of cross-border service is the translation of the documents into a language comprehensible for the defendant. As the defendant has to have enough time to prepare for his defense before the foreign court, due service affects the beginning of the time limit given to the defendant for entering an appearance.

 Rejection because of lack of translation into the official language of the receiving State Quite often, receiving agencies refuse to deliver the document, on the ground that the document is not translated into the official language of the Member State addressed. However, according to article 8, it follows that a translation of the document to be served into the official language of the Member State addressed is not required in every case. In fact, in cases where the addressee demonstrably understands the language of the forwarding Member State, Article 8.1 allows for a faster service that translation of the document can be waived.

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Unfortunately, the acceleration of service intended by this rule is achieved by running a significant risk of judicial uncertainty. A generalized translation of the documents to be served into the official language of the receiving State implies to increase unreasonably the procedural expenses, since translations are often quite expensive and, depending on the language, it is not always easy to find a translator of Finnish, Latvian of Greek (just to mention some examples). Therefore, the service of documents on a language understood by the addressee, without need of translations, cannot be derogated. The solution to this cause of rejection is to promote the proper use and knowledge of the Regulation among the agents involved in its application (mainly, transmitting and receiving agencies, together with central bodies).

 Lack of an objective criteria in the determination of the language skills of the addressee Article 8.1 does not contain criteria sufficient enough to determine the question of when the applicant may rely on a sufficient linguistic knowledge of the addressee. Due to this insecurity, in case of a doubt, it is partly recommendable to attach a translation into the official language of the State addressed, especially taking into account that language barriers are one of the main problems in the service of documents because people effecting the service often refuse the documents just because of the mere fact of not being translated into the official language of the State addressed. Thus, a determination of the addressee’s linguistic knowledge on the basis of general and objective criteria is preferable. In this case, a proposal should be the following one:

- Natural persons: In the case of service to a natural person sufficient linguistic knowledge can be assumed if the document is drafted in the official language of the State addressed. Choice could have been made between the language of the State addressed or the language of his nationality:

o Regarding nationality, this connection has many advantages: first, it is a stable connection; indeed, it is too difficult to change it, unlike domicile, increasing the juridical security. Secondly, the nationality allows the foreigner to maintain his legal bonds with his country of origin harnessing the cultural diversity. However, the disadvantages of nationality are: first, nationality does not guarantee the application of the law where the subject develops his life. Secondly, the nationality is not useful in countries which receive foreigners because it implies generalizing the service of documents in a foreign language normally not known by the person effecting the service. Thirdly, in nationality may exists two nationalities nationality and this connection does not guarantee the application of only one law on the person, independently of where he resides, acts or emigrates. Fourthly, the nationality of the addressee may be difficult to be known by the sender.

o Regarding the language of the State addressed, this connection has many advantages: first, the foreigner is supposed to have a sufficient knowledge of the language where he develops his life; secondly, it implies generalizing the service of documents in the foreign language known by the person effecting the service, what

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means that is more likely to reach its recipient fulfilling all formalities; thirdly, it avoids the problem of identifying the nationality of the addressee. Making a balance of the advantages and disadvantages of both presumptions, choice should be made in favor of the official language of the State addressed. It is true that a problem arises when several official language exist but, in any case, if documents are served in an official language not known by the addressee, the proposed solution is just a legal presumption that admits proof on contrary by the addressee. It would be enough with filling the form of Annex II, identifying the language he or she understands. - Legal persons: in the case of service to a legal entity the existence of sufficient linguistic knowledge cannot be based on the individual linguistic knowledge of the board member authorised to represent the entity or of the latter’s executive director; it should rather suffice that the document is composed in the language which constitutes the official language at the place of the active centre of administration or at the place where the office is situated. According to the case law of the ECJ, sufficient knowledge would be assumed if the documents are drafted in the language in which the contract was negotiated and concluded11. However, this connecting point is difficult to be controlled by the person effecting the service of documents.

 Proof of refusal by the addressee Regulation 1393 does not indicate how the form of refusal must be addressed. Consequently, as it has been said by the UIHJ, a simple letter seems possible. However, since the point of view of the enforcement of a future judgement, a dishonest addressee can claim to have sent the form of refusal in due time with a simple letter and then, because having not being served with the translated document, to have legitimately thought that the applicant had not continued his action.

4.5.5 Opinions and Proposals

 With the current draft of article 8, the addressee cannot refuse a document translated into the official language of the receiving State. However, the right to defense may be violated if the addressee does not understand the official language of the required State and there is no translation to a language he understands. Breaching of the defense rights may lead to the denial of the enforcement of a future judgment. Therefore, a new provision should be included according to which the addressee may refuse to accept documents if they are written in the official language of the country of his domicile under the condition that he does not

11 C-473/04, of 9 February 2006 (Plumex v Young Sports N.V.).

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understand this language but he understands other official language of the EU that should be in any case identified.  In order to facilitate legal certainty on application of the Regulation, a general presumption of objective knowledge of a language should be included. In our opinion, Article 8.1 of Regulation 1393 should be amended in the following sense: “The receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into a language which the addressee understands. In the case of service to a natural person sufficient linguistic knowledge can be assumed if the document is drafted in the official language of the receiving State. The previous legal presumption may be rejected if the addressee refused a document on grounds of lack of understanding but he/she provides the official language of another Member State he/she understands. In the case of service to a legal entity sufficient linguistic knowledge is assumed if the document is composed in the language which constitutes the official language of the place of the active centre of administration or of the place where the office is situated.  Regardless of whether the recipient understands the language of the forwarding State, the entirety form should be translated into the official language of the State addressed. Otherwise the service of document may not take place because of lack of understanding by the officials, institutions, bodies or persons involved in the service of documents.  At present the form in Annex II must be filled by the receiving agency as many times as official languages coexist in the same Member State, once by official language. Although it seems logical to limit the translation to the specific official language used in the specific place where the addressee is supposed to be served, or to the language understood by the addressee, the adequately protection of the right of defence of the addressee makes recommendable to send it translated into all the official languages that coexists in the European Union. In this sense, a better design of the Form could help to the easy identification of the language used by the addressee.  It seems recommendable on grounds of legal certainty that article 8 establishes a mean of communication used by the addressee to exercise his right to refuse the document served. In any case, notice need to be given about the sending and reception of the refusal communication.

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4.6 DATE OF SERVICE 4.6.1 Introduction

The determination of the date in which the service of documents is effected has relevance on the procedure because of the legal consequences it displays. Date of service is regulated in article 9 that establishes “the date of service of a document (...) shall be the date on which it is served in accordance with the law of the Member State addressed However, where according to the law of a Member State a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be that determined by the law of that Member State” 4.6.2 The double-date system

Service in civil proceedings is characterised by a tension between the right to administration of justice on one hand and the protection of defendants on the other hand. The conflict of interests between the claimant’s right to administration of justice and the protection of the defendant’s right to a fair hearing by timely and effective information aggravates in international legal relations. Although lex processum normally applies to procedural issues, there are some exceptions. One is that the date of service is the date of service in accordance with the law of the MS addressed (art. 9.1), which is fair for the defendant, who can refer to local law to start the calculation of the time period in which he can appear or answer the claim, but would be unjust for the claimant if the law of the procedure places on him/her a time limit. The purpose of the double date system in Article 9 is precisely to protect the rights of both, the applicant and the addressee. Paragraph 1 lays down the principle that the date of service is to be the date on which the document is served in accordance with the law of the Member State addressed. It is intended to protect the rights of the addressee. Paragraph 2 is intended to protect the rights of the applicant, who may have an interest in acting within a given period or on a given date. In such cases it is appropriate to enable him to assert his rights on a date which he can determine himself, instead of referring to an event (the service of a document in another Member State) over which he has no direct influence and which might occur after the due date12. Under Regulation 1348, several Member States invoked derogations in accordance with Article 9.3, on the basis that the double-date system was not known in their national procedural laws. Those Member States do, however, have equivalent rules in order to protect the rights of the applicant (e.g. by providing that prescription is interrupted through the seizure of the court). Nowadays, the words “according to the law of a Member State” added in paragraph 2 ensures

12 See art. 9 in Explanatory Report on the Convention, drawn up on the basis of art. K3 of the Treaty of the European Union on the service of judicial and extrajudicial documents in civil and commercial matters (OJ C 261, of 27 August 1997).

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that paragraph 2 is applicable only in those Member States which have provided for the double- date system in their national legislation, avoiding the complex mechanism of communications existing under Regulation 134813. Rule on date of service must be completed by article 8.3, related to rectified service. So, whenever a document has to be translated because of the right to refuse of the recipient, the date for the addressee would be the date of the rectified service, while in respect of the applicant the date might be the date of the original, defective service. As we have seen, this rule has also been applied by the ECJ in Götz Leffler14.

4.6.3 Practical problems

The determination of the date of service according to the guidelines of article 9 would affect service by authorities as well as service by other means. Therefore, the scope and degree of unification of the and rules relating to the date of service would prevent Member States from applying different systems to different methods of service. The general Survey shows that the rules governing the determination of the date of service have not caused any major problems in practice The general Survey shows that the rules governing the determination of the date of service have not caused any major problems in practice (45% of the interviewees share this assertion). Major problems detected have nothing to do with the legal solution provided by the Regulation, but with its practical application. The main difficulties are related to the difficulties in clearly determining the date when the addressee is deemed to have been notified. In this sense: - 29,5% of the interviewees consider that is difficult to estimate the date of service. This percentage has to be connected to the answers of the interviewees dealing with the service of documents by post because most of the times the acknowledgment of receipt is not sent back or is not filled in completely. And when documents are served through the institutional mode, frequently receiving agencies fail to indicate the specific date of service. - In the opinion of 13,5% of the interviewees, the declarations of Member States are not clear. Therefore, control over the effectiveness of the service is lost because there is a general lack of information about, for example, the days in which the service may be effected (in some Member States as France or Spain, postal services work on Saturday; in Belgium it is accepted the day of postal transmission in the Belgian post office as official date of transmission; in some Member States the service is deemed to have been effected the same day of reception of documents, whereas in others the next one is taken into account; ...). There are also important differences between Member States in the persons allowed to receive the documents on behalf of the addressee, as explained in the section “Service by Post”.

13 Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters /* COM/2005/0305 final - COD 2005/0126 */ 14 C-443/03, of 8 November 2005.

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- If the documents are impossible to be served in the required time, they are directly returned unserved to the forwarding State, wasting a lot of time and often the legal term expires - It is not clear whether the recipient has actually been served or he has just been notified about a document ready for collection.

As explained above, dysfunctions are not related to the legal solution but to the lack of rigour when effecting the service of documents. Therefore, common minimum standard rules of civil procedure related to the date for the cross-border service of documents do not seem recommendable, complying with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose. However, uncertainties arise from the way in which the certificate is filled out.

4.6.4 Opinions and Proposals

 In paragraph 1, the words “pursuant to Article 7” should be deleted since Article 9 should also refer to the service of a document in accordance with Section 2.  It is necessary higher control over the return of the certificate, since the determination of the date of service is necessary for the exercise of the applicant´s rights.  If according to the law of a Member State a document has to be served within a particular period of time, and this period of time expires, the receiving agency shall immediately inform the transmitting agency by the fastest mean of communication, waiting for instructions, instead of directly return it back unserved.  Member States should provide full information about business days, computing a period of time and persons allowed to receive the documents on behalf of the addressee. A common minimum procedural rule in this field would be recommendable if the common mode of service of documents were the transmitting and receiving agencies. However, nowadays more than 50% of the interviewees admit a very frequent use of the service by post. A unification of the procedural rules would affect to any kind of provision of service by post (not only those related to the service of judicial or non judicial documents).

4.7 COST OF SERVICE 4.7.1 Introduction

Costs for services rendered by the Member States addressed are free of charge. This is the general rule establishes by article 11 of Regulation 1393, aiming to facilitate European citizens the access to Justice under equal conditions.

47 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

However, when service of documents is performed by recourse to a judicial officer or to a person competent under the law of the Member State addressed, or the use of a particular method of service is required the applicant may be requested to bear the cost of the service. In order to facilitate access to justice, costs occasioned by recourse to a judicial officer or a person competent under the law of the Member State addressed should, however, correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and non-discrimination.

4.7.2 Costs incurred by the Regulation

Within the European Union different legal systems coexist. In some of them transmission of documents is free of charge. In others, professionals are authorized to carry out the service and they are subject to fees that vary according to the functions performed. A general overview of the communications sent by Member States shows the complexity of the issue, and the difficulty of finding a system that will satisfy the needs and interest of every person and State involved in.

MEMBER FREE OF ARTICLE 11 STATE CHARGE

Austria No fixed fees apply. X

The costs of service by a bailiff correspond to a flat-rate fee of 135 Belgium per service payable by the natural or legal person to whom the writ is addressed before any intervention in proceedings. Bulgarian legislation does not stipulate a fee for the service of documents Bulgaria in the normal way. A fee fixed in accordance with the Tariff for fees and

costs under the Private Bailiffs Act is charged for the service of documents by a particular method.

Cyprus €5 for every document.

Czech Service in the Czech Republic is not subject to fees. X Republic

The cost of service involving recourse to a judicial officer is DKK 30.76 Denmark plus transport costs, cf. Notice No 508 of 1 June 1998 and Notice No 1295 of 20 November 2007.

Finland Service of documents is free of charge for foreign transmitting agencies. X

The fixed fee for service by a bailiff is EUR 50. This fee must be paid France when documents are transmitted except where the applicant is receiving legal aid. The costs referred to in Article 11(2) may under normal circumstances be

Germany incurred up to €20.50. They will be calculated in accordance with the laws

48 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

on court expenses depending on the type of service requested.

Greece For 2010, no costs of service are imposed. X

This provision does not apply to Hungary (in accordance with the Hungary Regulation the courts deal with the service of documents coming from X other Member States, so the fee for effecting the document service is not charged.)

Ireland Costs of the type envisaged do not arise under Irish law. X

Italy There are currently no service costs for documents from abroad. X

The Latvian authorities do not serve documents pursuant to Article 11(2) Latvia (a) of the Regulation, and Latvia is therefore not communicating the X information specified in Article 11(2).

In Lithuania no fees are charged for the services referred to in Article Lithuania X 11(2) (a).

Luxembourg The flat rate is set at € 138.

Service of judicial documents coming from a Member State to the Maltese

receiving agency in terms of the regulation does not give rise to any Malta X payment or reimbursement of taxes or costs for services rendered by the

Maltese authorities. The fixed fee for the costs of recourse to a judicial officer or to a person Netherlands competent under the law of the Member State addressed has been set at €65.

Poland The document service is free. X

The service of judicial documents coming from a Member State shall not Portugal X give rise to any payment of taxes or costs for services rendered.

On the basis of Article 722 of the Code of Civil Procedure, service of documents is free of charge when done through the court by the process server. Article 722. - (1) The effecting and service of procedural documents shall be carried out free of charge. Romania (2) The necessary expenditure for the effecting and service, by post or by

other means, of the procedural documents generated by a trial shall be covered from funds allocated specifically for that purpose from the state budget. Article 90 et sec. of the Code of Civil Procedure lay down in detail how the Monika Hinte court serves documents via the process server. In principle the service is carried out by the requested courts. However, a

court may, under certain circumstances, commission a bailiff to serve the Slovakia documents. In such a case the bailiff's fee is fixed at 6,64 € per served

document. NA

49 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

Slovenia

The costs are as provided for by the applicable Spanish legislation, which Spain X does not currently specify any particular amount.

Sweden does not intend to make a charge for recourse to a judicial officer Sweden X or other competent person.

1. England and Wales: United We will not be charging for service. Kingdom 2. : Fees will not be charges for judicial services, but Northern Ireland will try to recover process server costs.

Due to this wide variety of systems, it seems not possible to reach an agreement on a uniform system of service of documents since they obey legal traditions deeply rooted.

4.7.3 Practical problems

The intermediate solution adopted by Regulation 1393 has tried to reconciliate the existing differences between Member States on the ground of cost of service. However, among the main difficulties encountered in this article the results of the survey have emphasized the next ones, most of them shared in the same proportion by the different groups of professionals interviewed:

a) Lack of details related to the bank transfer Among the comments made about the practical application of article 11 is the ever-recurring problem of the absence of the necessary details to make the transfer of the funds. A lot of unnecessary time elapses with communications on them, even before the service could take place. These details has to do, not only with the bank aspects (IBAN and BIC code), but with VAT identification. The lack of VAT identification number of the forwarding or transmitting agency is necessary no to charge the VAT on intra-Community transactions.

b) Difficult reimbursement of the payment of the cost of the service in advance Another interesting aspect of the Survey is when payment is not required in advance. In those cases extracting payment once service has been effected turn to be a difficult task. Specially wherever the service is provided by professionals who charge fees, and they charge them to Member States where the service is free.

c) Lack of transparency in the charged fees Article 11 of Regulation 1393 amended the solution provided by Regulation 1348. Following our recommendations of the previous Study a last paragraph was introduced in the sense of limiting

50 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

national discretation of the charging of fees. In this sense, cost on the service of documents should correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and non-discrimination. However, the requirement of a single fixed fee should not preclude the possibility for Member States to set different fees for different types of service, but all of them need to be previously fixed and available in advance. When this happens, 20,6% of the interviewees consider that there is a general lack of transparency concerning the calculation of costs in some Member States, mainly when fees vary depending on circumstances of individual cases. Notwithstanding the aforementioned rule, among the recurring comments made by the interviewees is that normally the fee collected is higher than the fixed one, because of regrettable overcharges of tariff from some judicial officers (29,2% of the interviewees).

d) Information provided by the Commission web pages is not binding for the Member States Closely related to the previous comment, it is the problem of the non-binding character of the communications made by the Member States to the Commission. Despite the Manual clearly states that judicial or extrajudicial documents coming from another Member State attract a charge, for example, of 135 Euros, tariffs applied by the requested body, institution or person are variable, without any control. This is mainly the case of France.

4.7.4 Opinions and Proposals

Our main proposals at this stage, and taking into account of the input from the survey, are:  A European common tariff would be advisable.  In any case, costs occasioned by recourse to a judicial officer or a person competent under the law of the Member State addressed should correspond to a real and single fixed fee laid down by that Member State which respects the principles of proportionality and non-discrimination.  Cost of service should be known in advance, prior to the commencement of the service and this information should appear on the website of the European Judicial Atlas.  Provision of funds would be recommendable with the purpose of securing payment.  Clear information about international bank codes (IBAN and BIC code) and VAT identification number should be available on the Commission web pages, making it possible to transfer the required sum for the service without wasting time.

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4.8 SERVICE BY POST 4.8.1 Introduction

Service of documents by post provided for in article 14 of the Regulation is another of the subsidiary means of service or transmission of documents referred to in Regulation 1393/200715. This provides that Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent. This provision allows that each Member State can effect service of documents directly by post to persons living in another Member State. However, contrary to Regulation 1348/2000, Regulation 1393 does not delegate on Member States the possibility to establish the particular conditions under which such service will be accepted.

Currently, the service of documents by post is subject to two requirements: a) Acceptance by the Member State; b) The only method acceptable to deliver this service is by registered letter with acknowledgement of receipt or equivalent.

4.8.2 Method of service by post

The undoubtedly most important innovation which the Regulation has brought in comparison to the Hague Convention is the possibility granted by Article 14 to all Member States to effect service of judicial documents directly by post. As no Member State can any longer prohibit the direct service by post, all Member States are obliged to accept such service from other Member States on addressees in the own State.

Most of the Member States have accepted this method of transmission of documents, because of being considered one of the fastest ones. Results of the General Survey show that the service of documents by post is frequent. In fact, more than 50% of the interviewees admit a very frequent use of this method of service. So, in Belgium (72,7%), Czech Republic (47,1% + 17,6% using it more frequently than through a receiving agency), Finland (50% + 25% using it more than through a receiving agency), Hungary (57,1% + 14,3% using it more than through a receiving agency), Ireland (40% + 40% using it more than through a receiving agency), Portugal (44,4% + 11,1% using it more than through a receiving agency), or Romania (40% + 30% using it more than through a receiving agency). Moreover, the forwarding authorities of most of them mainly use the postal method to send requests for service abroad16. It should be pointed out that,

15 Regarding different means of service in each Member State, vid. 16 RAUSCHER/HEIDERHOFF, Europäisches Zivilprozessrecht, volume II, (2. ed. 2006), Article 14 para. 1, the provision of Article 14 of the Regulation on Service is justly considered to be the “central provision” of the

52 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

instead of relying in the system of receiving agencies, 28,2% of the transmitting agencies interviewed admit to use postal service very frequently; 21,6% more frequently than service by a receiving agency; only 15,7%, rather exceptionally; and 4,2%, never.

Direct service by post can be considered to be a way of service of equal rank as service by way of judicial assistance. Thus, judicial documents can be served by either way or by both ways at the same time17.

Regarding the option for a system of registered post, on a first approach it may seem to be one of the most secure method because date of posting of the letter is recorded and it ensures that the letter will be directly delivered to the addressee. On the other hand, the use of acknowledgement of receipt or equivalent guarantees the delivery of the document on a certain date. However, these advantages are shadowed by the weaknesses of this mechanism of transmission.

4.8.3 Practical problems

Even though this possibility to serve judicial and extrajudicial documents directly by post has already led to a significant acceleration of service between Member States in practice, the service by post still poses difficulties18. In fact, only 24,3% of the interviewees did not encounter any problem concerning postal service. Detected problems have to do with:

1. Return of receipt Irrespective of the general acceptance and use of this service of documents, transmission of documents by post is not without difficulties. In fact, the main problem arisen from this method is connected with a return of the receipt not filled out, not filled out properly, or not signed. Hence follows uncertainty on the service. This mode of service gives rise to serious inconvenient when the court has to judge on the base of the service of a document which acknowledgement of receipt does not clearly mention if the addressee was really aware of the proceedings. Actually, according to the opinion of the 41,1% of the interviewees, acknowledgement of receipt is not filled in completely, in the 40,6% of the cases the acknowledgement of the receipt is not returned and in the 34% of the cases the signature cannot be read so it is impossible to determine who the signer is. It is also impossible, in a large proportion, to identify the writings, the stamps, the data, etc. Translating these problems into the practice, it means lack of certainty in the calculation of the legal deadlines. For example, Regulation (EC) n°805/2004 of the European Parliament and the

Regulation on Service; likewise ZÖLLER/GEIMER, Zivilprozessordnung , Article 14 Regulation on Service para. 1. 17 C-473/04, of 9 February 2006 (Plumex v Young Sports N.V.). 18 Commission’s statement from 11.7.2005 regarding the recomendation for an amendment of the Regulation on Service, COM (2005) 305 final.

53 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

Council of the 21 April 2004 creating a European Enforcement Order for uncontested claims, Regulation (EC) n°1896/2006 of the European Parliament and the Council of 12 December 2006 creating an European Order for Payment, or Regulation (EC) nº861/2007 of the European Parliament and the Council of 11 July 2007 on small claims, all of them aim to accelerate and simplify judicial proceedings, fixing short deadlines that could not be controlled if the date of reception by the addressee is missed.

2. Persons allowed ro receive the document on behalf of the addressee The aim of an acknowledgment of receipt system is to guarantee the proof of the reception of the served document by the addressee. However, Regulation 1393 does not precise the person authorized to receive the document in the absence of the addressee. Therefore, the person who can receive the document on behalf of the addressee has to be determined in accordance with the national Law of each State.

For example, under the Portuguese Law, if it is confirmed that the person to be cited lives or works in the indicated place, a note should be left to another person (for instance someone that lives or works with the person to be cited or a neighbour) that is in good conditions of transmitting the precise date and hour for another attempt of serving the documents. If in that precise date and hour, the person to be cited is not present, the citation is done on the person that is in better conditions of transmitting the citation to its addressee. Whenever a third party receives a citation and does not transmit it to the person that should have been served, this amounts to a crime of disobedience. If the citation is done in a person that does not live with the cited party, this responsibility finishes if the elements are given to a person of the house. Whenever the cooperation of third persons is unavailable, the citation is done publicizing in the most appropriate place and in the presence of two witnesses the notice of citation, with the indication of all documents that should mandatorily be transmitted to the person to be cited, declaring that the duplicates and documents are available at the judicial secretary.

Or, pursuant to Article 92.3 of the Romanian Code of Civil Procedure, if the addressee is not found at home or if, in the case of hotels or buildings consisting of several apartments, he/she did not indicate the room or apartment where he/she lives, the agent shall hand over the summons, in the first case, to a person in the family or, in lack thereof, to any person who lives with him/her, or who, usually, receives the correspondence, and, in other cases, to the administrator, the keeper, or the one who usually replaces him/her; the person receiving the summons shall sign the certificate of receipt, the officer certifying his/her identity and signature and filling in a report on the followed procedure.

The lack of information about the legislation of the different Member States, as well as the no mention in some acknowledgment of receipt about the relationship between the person who has finally signed the document and the addressee makes difficult the assessment whether the document has been served in compliance with the requirements of the requested State or not.

54 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

3. Language Language in which the service by post must be sent is another important issue not expressly regulated in article 14. In any case, the subsidiary application of article 8 implicitly imposes the use of a form in the language of the State addressed, together with the translation of the content of the served document19. Otherwise, the addressee is allowed to exercise his right to refuse the document. However, and this is one of the main reported problems, person effecting the postal delivery are not trained on Regulation 1393 and do not inform the addressee about the consequences of accepting the served document. 4. Competent person to use this method of transmission Article 14 states that each Member State shall be free to effect service of judicial documents directly by postal services. Among the difficulties encountered in this article it must be highlighted a lack of understanding of what the expression “each Member State” means. It refers to authorities, bodies or persons considered competent to use this method of service of documents? Persons involved in the administration of justice? The transmitting agencies? Or anybody interested in a procedure can directly turn to the authority of another Member State for effecting this type of service? The interpretation that underlies article 14 seems to be that anybody competent to provide the service of documents under the Law of the forwarding Member State may use postal channels for the request of a service of documents abroad, irrespective of the requested State. However, the lack of information about the competent authorities to effect this service in each Member State makes the control over the competence of the person effecting the service of documents impossible.

4.8.4 Opinions and proposals

Our main proposals in this matter coincide with those of the Study of Regulation 1348/2000, since the same problems reported there arise, when taking into account the input from the general survey:

 In practice, the service by post poses difficulties as the return receipt required by most Member States is often sent back with significant delays or not at all.  Service by post creates uncertainty because there is no assurance that delivery has been effected to the right person.  Service by post creates uncertainty about the date to be taken into consideration as evidence that service has been effected (date of issue by the applicant or date of reception by the addressee)  It is widely recommended to continue to serve in particular documents instituting the proceedings additionally by way of judicial assistance.

19 C-443/03, of 8 November 2005.

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4.9 DIRECT SERVICE 4.9.1 Introduction

Regulation 1393 establishes the possibility of using direct service of documents as a subsidiary method of transmission. Regulated in article 15, it is stated that “Any person interested in a judicial proceeding may effect service of judicial documents directly through the judicial officers, officials or other competent persons of the Member State addressed, where such direct service is permitted under the law of that Member State”.

4.9.2 Direct service

This method of transmission is very well considered in national service of documents and wherever professionals such as huissiers are the persons authorized to effect the service. That is the case of France, Cyprus, Greece or Belgium, where a wide majority of the interviewees has considered this mode of service recommendable. Information provided by Member States however reveals that there is no general acceptance of this mechanism of service of documents. So, 14 of the current Member States oppose its application in their territory. It should be pointed out that Member States that under Regulation 1348 allowed direct service nowadays oppose its application or introduce new conditions to its validity. That is the case of Spain. In the same sense, 39,7% of the interviewees consider that it would be recommendable to admit the direct service of documents; and 35,9%, it would not. As shown, there is no uniform opinion on this field, although it seems that a positive opinion on its admission is more wide spread among professionals as solicitors, barristers, legal assistants or public notaries (58,8%), than among institutions (14,3%). In any case, the results reveal a great lack of knowledge of this mode of service, since a majority of the interviewees consider that their Member State would admit this system, while the Member State has clearly opposed it. That is the case of Czech Republic (64,7%), Spain (44%), Romania (70%) or Latvia (72,7%).

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MEMBER ARTICLE 15 OPPOSE STATE

Service of judicial documents directly through the judicial officers, officials or other Austria x competent persons of the Member State addressed is not permitted under Austrian law

Belgium does not oppose the possibility of direct service provided for by Article 15. Belgium The service of documents pursuant to Article 15 of Regulation (EC) No 1393/2007 is not Bulgaria permitted in the Republic of Bulgaria. X

Cyprus Direct service is permitted under Cypriot law.

Czech Republic The Czech Republic declares that Czech law does not permit such service on its territory. x

Denmark Direct service through judicial officers is permitted under Danish law.

Finland Finland does not oppose this form of service.

France France is not opposed to direct service as provided for in Article 15(1).

Under Article 15, in the territory of the Federal Republic of Germany only those documents may be served in respect of which German law on civil procedure also explicitly permits such direct service (Article 166(2) ZPO). An application initiating proceedings cannot be served in Germany X this way. Direct service is permitted, for example, in the case of an enforcement order under under conditions Article 750 ZPO, an enforceable title under Articles 794(1)(5) and 797 ZPO, distrait orders under Article 923(2) ZPO and interlocutory procedures under Articles 935 and 936 ZPO. Details of permissible direct service are governed by Articles 191 et seq ZPO.

Greece Greece has no reservations to formulate regarding this Article.

Hungary The Republic of Hungary opposes the possibility of direct service (Art 15) in its territory. x

Ireland does not object to the possibility that any person interested in a judicial proceeding Ireland may effect service of judicial documents directly through a solicitor in Ireland.

There is nothing to prevent any person interested in a judicial proceeding effecting service of Italy judicial documents directly through the competent officials of the Member State addressed.

Under Latvian legislation it is not permitted to serve documents in Latvia in accordance with Latvia X Article 15 of the Regulation

The Lithuanian authorities declare that the service of documents in the manner described in Lithuania X Article 15 is not permitted in Lithuania.

Luxembourg is not opposed to the possibility provided for by Article 15 regarding Member States that allow reciprocity, on the understanding that a bailiff in the requested State is not Luxembourg X responsible for the proper form and content of the document sent to him direct by the person under conditions concerned but responsible solely for the service formalities and procedures that he applies in the requested State.

Malta No opposition.

The Netherlands does not oppose direct service. Netherlands

Poland does not allow documents to be served within its territory in the form specified in this X Poland article.

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Portugal On grounds of legal certainty, Portugal is opposed to this form of service in its territory. x

Romania Romania objects to the possibility of direct notification or service provided for in Article 15(1). X In Romania direct notification or service within the meaning of Article 15(1) of the Regulation is not accepted by the civil procedure code. The Slovak Republic opposes the possibility of any person interested in a judicial proceeding Slovakia to effect service of judicial documents in its territory directly through the judicial officers, X officials or other competent persons of the Slovak Republic.

Slovenia Direct service is not permitted under Slovenian legislation. X

Spain states that the Spanish legal system makes no provision for direct service. It cannot, Spain X therefore, accept such service.

Sweden is not opposed to any person interested in a judicial proceeding having the freedom Sweden to effect service of judicial documents directly through judicial officers, officials or other

competent persons. However, the Swedish authorities are not required to provide assistance in such cases. . England and Wales: We will not be affecting direct service. England and . Northern Ireland: Northern Ireland is opposed to the possibility of direct service provided for Northern Ireland by Article 15(1). are opposed to . : Scotland does not oppose the possibility of direct service provided for by Article the possibility of

15(1). direct service . Gibraltar: Gibraltar does not oppose the possibility of direct service provided for by Article provided for by 15(1). Article 15(1).

Also, national rules regarding internal direct service of documents within the territory of each Member State differ: MEMBER DIRECT REGULATION COMMENTS STATE SERVICE ADMITTED Austria

A similar provision is not found in our internal procedural law. In our internal procedural law the standard way to serve a document is via a judicial officer. The sender gives the document to the judicial officer, who in turn issues a copy to the addressee (Art. 32 Code of Civil Procedure). Belgium X

In an international context, Belgium is bound by the of 1965. This Convention contains in its Article 10.c) a similar rule on direct service as that of the Regulation. Belgium did not object to this rule either.

Art. 611, Para. 4 Civil Procedure Code (Amended, SG No. 50/2008) The receiving agency shall effect the service through a court official, by post, or by a Bulgaria particular form requested by the party. Where there

is no court institution in the nucleated

settlement where the service must be effected, service may be effected care of the municipality or mayoralty.

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Cyprus X

Czech

Republic

Estonia

Finland X

Article 667 Code de procédure civile. The service must be made by an envelope or a cover, either by post or by direct personal delivery to the addressee against annotation or receipt.

France X In case of notification between advocates: Article 671 Code de procédure civile. The provisions of Sections I and II will not apply to notification of process between advocates. The same will be done by service (through a bailiff) or direct notification.

sec. 174 Service of documents against receipt:

(1) A document may be served against receipt to a barrister, a notary, a bailiff, a tax counselor or another person being member of a professional group hypothesising extraordinary Yes, where service of documents ex officio against trustworthiness, or to an administrative receipt (sec. 174 para. 2) or party-to-party service authority. (2) A document may be served to between barristers against receipt (sec. 195) apply. the addressees mentioned in para. 1 by fax

machine. The transmission shall be

introduced by the indication “service of Germany X documents against receipt” and the sending

authority, name and address of addressee

and name of transmitting clerk of the court

shall be transparent. (3) … (4) … Under conditions sec. 195 Service of documents from barrister to barrister

(1) If both parties are represented by barristers, one barrister may hand over the document to the other barrister against receipt. (…) sec. 174 para. 2 sentence 1 and para. 3 sentence 1, 3 apply.(2) …

Greece

Hungary

Ireland X

X So far, a lawyer can transmit an act directly by ordinary mail only if he/she is registered in a

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Italy specific list, under the condition that an official note be taken of all the acts and documents notified. On judge’s authorization a lawyer can notify through fax. Still a reform is on the way.

Article 56 of the Civil Procedure Law: (4) Party with an allowance of a judge could Latvia X But oppose receive judicial documents to deliver them to the addressee in the case.

Lithuania

Luxembourg is not opposed to the possibility provided for by Article 15 regarding Member States that allow reciprocity, on the understanding that a bailiff in the requested State is not Luxembourg X Under conditions responsible for the proper form and content of the document sent to him direct by the person concerned but responsible solely for the service formalities and procedures that he applies in the requested State.

Service of documents is effected by court officers or by registered mail. The interested party files the Malta X pleading or other documents in the court registry and pays the applicable fees, and arrangements for service are then made by the registry.

Netherlands X

Austria

Poland

In some cases citation is admitted between the Article 245.º of the Civil Procedure Code judicial representatives of the parties (their attorneys or solicitors) or by their forensic Citation promoted by the legal employees indicated by them (that must be representative identified by a card issued by the Attorneys or the Solicitors Chamber). The judicial representative 1. The citation made pursuant to paragraph must in the initial petition or in a special petition 3 of Article 233 follows the scheme of demonstrate the intention of promoting itself the Article 239. º, with the necessary citation of the other judicial representative. The adaptations. 2 - The legal representative person responsible for the citation is identified in should, in the application (initial petition), Portugal X the petition, although the judicial representative of state the purpose of promoting the service the author is responsible for the misconduct of the by itself, by another legal representative, by person in charge of the citation, without prejudice a solicitor or by a person identified pursuant of disciplinary and criminal claims. Whenever the to paragraph 4 of Article 161, and may also citation is not concluded in thirty days, the judicial require the assumption of such a service at representative should give knowledge of the fact any later time, if any other form of service and the citation will be held according to the has been frustrated. 3. The person in general provisions of procedural law (article 245 of charge of the investigation by the agent is the Civil Procedure Code). identified in the petition or application, with express mention that he has been advised Direct party-to-party service of documents is of his duties. applicable between legal representatives of both

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parties after the answer to the complaint or petition is served to the defendant (article 229-A of the Civil Article 229.º-A of the Civil Procedure Code Procedure Code) This notifications can be performed by all admissible means for the practice Notification between the legal of procedural acts, including electronic representative of the parties transmission of data whenever both judicial 1 - In cases in which the parties have representatives have delivered any document designated legal representatives, all using the system CITIUS or so declare (see article pleadings and autonomous applications 21-B of Portaria n.º 114/2008, 6 de Fevereiro de that are submitted after the notification to 2008, above) the author of the objection of the defendant will be notified by the legal representative of the submitter to the legal representative of the counterparty, in its place of business, under Article 260-A. But oppose on grounds of legal certainty 2 - The legal representative that has only assumed the sponsorship of the cause during the proceedings shall indicate his place of business and, if appropriate, his e- mail to the legal representative of the counterparty.

According to Article 86 ^ 1 of the Code of Civil Procedure, introduced by Law no.202/2010 on measures to accelerate the settlement of lawsuits, published in the Official Gazette, Part I, no. 714 of 26 October 2010, "After notification of the court, if the parties have a lawyer or a legal

adviser, applications, responses or other acts can be communicated directly between Romania X But oppose them. In this case, the addressee will certify the receipt of the document and will record

immediately the day of receipt on the copy itself to be filed with the court, under the sanction of not taking in account. Proof of communication of acts can be done also by any other document filed in the case file which certifies, by signature, the receipt of each procedural act that has been served."

Slovenia

Slovakia

Spain

Sweden is not opposed to any person interested in a judicial proceeding having the freedom to effect service of judicial documents directly through Sweden X judicial officers, officials or other competent

persons. However, the Swedish authorities are not required to provide assistance in such cases.

England and United Northern Ireland

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Kingdom are opposed to the possibility of direct service provided for by Article 15(1).

This lack of uniform acceptance poses several problems on the proper functioning of this mechanism and weakens the scope of this rule through divergent regimes in the Member States.

4.9.3 Practical problems

a) Lack of understanding of what “direct service” means The literal wording of article 15 establishes that any person may effect this service. This word supports the idea that anybody interesting in a judicial proceedings is allowed to directly turn to the authority of other Member State asking for effecting this type of service. However, this method is doubly conditioned: Firstly, by the Law of the Member State where the procedure takes place (forwarding State); and secondly by the addressed State. So, the determination of the person allowed to effect the service in the forwarding State, together with identification of the person or body authorized to provide this service in the receiving State will depend on the Law of both countries. In other terms, article 15 does not mean that anybody without restriction will be allowed to use this mechanism, but only the persons who in accordance with the rules of the competent Courts are authorized to effect it. b) Lack of familiarity with its use Comments of professionals interviewed show that there is a wide ignorance of this type of service, as well as a general distrust on the consequences of this service of documents, not only from the point of view of the protection of rights of the applicant, but also from the perspective of the addressee. Nothing is said about the information on the date of serving the document, the way of checking that the addressee has been duly informed about his right to refuse or the obligation to translate the documents into a language understood by the person effecting the service. This silence means a remission to the internal Law of each Member State who does not oppose direct service. However, the more delegation on the national Law of the Member States concerned, the greater uncertainty on the validity of the service of document effected.

c) Difficult identification of the “judicial officers, officials or other competent persons of the Member State addressed”. Except for Ireland and Denmark (judicial officers) and Ireland (solicitors), no information is provided by the remaining States about who these professionals are. This lack of certainty makes location and identification of these professionals difficult and uncertain, and therefore rare the use of this method of service in cross-border issues.

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4.9.4 Opinions and proposals

Our main proposals at this stage, and taking into account of the input from the survey, are:  Direct service is not sufficiently known within European Union. According to the declarations of the Member States, only 11 Member States do not oppose this method of service of documents and 3 of them do not oppose under conditions. In our opinion, this lack of general acceptance and lack of knowledgment, together with the lack of training of the agents that would be responsible for providing this kind of service, make impossible to establish minimum common procedural rules in this field.  The opposition of different Member States (11 Member States do not admit this mode of service and 3 of them admit it under conditions), and the remission to the internal legal conditions required in those States where this method is allowed, weaken the scope of direct service, and make this method of service of document not recommendable on grounds or legal certainty.

 While the institutional method of service of documents (transmitting and receiving agencies) does not work properly and with the due effectiveness, it does not seem recommendable to derogate the direct service of documents. Above all taking into account that it constitutes an effective mode of service in Belgium, Cyprus, France and Greece, where the specialization of the agents providing the direct service of documents, and their wide knowledge about the procedure to follow and the applicable rules have a direct impact on the effectiveness, speed and certainty of the service provided.  In order to promote legal certainty on this method of service of documents, further information would be necessary: wherever this mode is admitted, Member States should provide more details about the following aspects:

o Persons authorized to provide this service (except for Ireland and Denmark -judicial officers- and Ireland –solicitors-), no information is provided by the remaining States about who these professionals are).

o Conditions required for its validity in each Member State should be clearly detailed in the Commission web page.

4.10 CONSULAR SERVICE 4.10.1 Introduction

Service of documents by post provided for in article 14 of the Regulation is another of the subsidiary means of service or transmission of documents referred to in Regulation 1393/2007. This provides that Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another- Member State by registered letter with acknowledgement of receipt or equivalent.

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Regulation 1393 provides two modes for employment of diplomatic and consular channels: the direct channel (service effectuated directly by the of the requesting State on the addressee); and the indirect channel (transmission of the document to be served by the Consul of the requesting State to an authority of the State addressed).

The fact that the traditional mean of interstate communication has been appropriated by Regulation 1393 to facilitate goals in the field of judicial cooperation implies an underlying notion of collaboration between Member State authorities for the benefit of the process the individuals involved.

4.10.2 Indirect diplomatic and consular channels (ART. 12)20

a) Diplomatic indirect channel: Under this technique, synthetically, the forwarding authority makes a request for service abroad, it is transmitted through diplomatic channels, and executed by a required State authority. Communication between States takes place, therefore, through the traditional channels of international relations: the court's request is forwarded to the Ministry of Justice of the requesting State, who sends it to the Ministry of Foreign Affairs, who in turn transmits it to its embassy in the addressed State. Once in the requested State, it is forwarded to the Ministry of Foreign Affairs, who send it to the Ministry of Justice, who definitely gives it the appropriate course by the respective authority. The document certifying the service of document returns by the same route in reverse. This rudimentary method of transmission is fairly criticized for three main reasons: - Highly complex system: It involves the ministries of Justice and Foreign Affairs of the Member States concerned; - Extremely slow system: This method sharply contrasts with the current development of new technologies; - Detrimental to the private parties involved in: The applicant wishes a fast development process and, especially, the addressee´s right to defense may be seriously infringed, since he may be served after the deadline for exercising it.

20 Indirect diplomatic and consular channel is also regulated in Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Article 9 establishes that “Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose. Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose”

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b) Consular indirect channel: Using this technique of transmission, the consul of the forwarding State does not directly transmit the request for notification to the addressee but to the agencies designated for this purpose by the requested State. This new transmission system involves, in theory, a qualitative improvement in comparison with the previous method in terms of time and simplicity, and consequently in terms of safeguard of the interests of the parties involved in the process. However, there is no qualitative improvement in terms of the general system established by the Regulation; thus, the service of documents through transmitting and receiving agencies.

4.10.3 Direct diplomatic and consular channels (Art. 13)

The direct channel of transmission means that the service is directly effectuated by the Consul of the requesting State on the addressee21. However, the lack of development of this mean of transmission, the lack of uniform acceptance within the European Union, together with the perhaps erroneous belief of its slow and obsolete character makes this system of transmission unknown and underutilized.

MEMBER ARTICLE 13 OPPOSE STATE

Austria does not intend to oppose service in accordance Austria with Article 13(1).

Belgium is opposed to the exercise in its territory of the Belgium X right conferred by Article 13(2).

In accordance with Article 13(2), the Republic of Bulgaria states that it permits the service of documents under Article 13(1) to be carried out in its territory only if Bulgaria the addressee is a national of the Member State in which X

the document originates. (Article 608 of the Code of Civil Procedure)

Cyprus No opposition to such service.

21 This direct diplomatic channel is also regulated in Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Article 8 establishes that “Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents” originate.

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The Czech Republic declares that it is not against such Czech Republic service on its territory.

Denmark accepts that diplomatic or consular Denmark representatives may transmit documents in accordance with Article 13(1).

Finland Finland does not oppose this form of service.

France is opposed to another Member State serving judicial

documents on French territory through consular or France X diplomatic channels unless the person to be served with

the document is a national of that Member State. In the territory of the Federal Republic of Germany, service

by diplomatic or consular agents within the meaning of Germany X Article 13(1) is not allowed unless the document is to be

served on a national of the transmitting State.

Greece has no reservations to formulate regarding this Greece Article.

Hungary The Republic of Hungary does not oppose this possibility.

Ireland Ireland does not oppose this.

Italy is opposed to the service of judicial documents on persons residing in another Member State directly by diplomatic or consular agents (except where the document is served on an Italian national residing in another Italy Member State). X

Italy is opposed to the service of judicial documents by the diplomatic or consular agents of a Member State on persons residing in Italy, except where the document is to be served on a national of the Member State in question. Latvia is opposed to the service of documents pursuant to

Article 13(1) of the Regulation, except in cases where the Latvia X documents are served on nationals of the Member State

in question. The Lithuanian authorities declare that they are opposed to

the service of documents in the manner described in Article Lithuania X 13, unless the documents are to be served on a national

of the State in which the documents originate. Luxembourg is opposed to its diplomatic or consular agents serving judicial and extrajudicial documents in another Member State. Luxembourg X Luxembourg is also opposed to diplomatic or consular agents of other Member States serving such documents in its territory, except in cases where the document is to be served on a national of the Member State in which it

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originates.

Malta They oppose. X

The Netherlands does not object to the possibility of a Member State serving judicial documents on persons

residing in the Netherlands, without application of any Netherlands compulsion, directly through its diplomatic or consular

agents.

Poland does not allow documents to be served within its

territory by diplomatic or consular agents, unless the Poland X documents are to be served on nationals of the Member

State in which the documents originate.

Portugal No objection.

Foreign diplomatic or consular agents may only notify or Romania serve judicial or extrajudicial documents in Romania on X citizens of the State which they represent. The Slovak Republic opposes the possibility of serving

judicial documents through diplomatic or consular agents Slovakia X unless the documents are to be served on a national of

the Member State in which the document originates Slovenia does not oppose the possibility of service through diplomatic or consular agents under conditions laid down in Article 13 (1). Slovenia Slovenia is opposed to the service of judicial documents on X persons residing in Slovenia through diplomatic or consular agents of another Member State, except where the document is to be served on a national of a Member State in which the documents originate. Spain does not accept service of documents within its territory by other Member States by consular or diplomatic Spain channels, unless the documents are served on a X national of the other Member State concerned (the Member State of origin).

Sweden Sweden accepts service by diplomatic or consular agents.

The United Kingdom does not intend to oppose the exercise United Kingdom in its territory of the right conferred by Article 13(1).

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4.10.4 Opinions and proposals

 With the current structure of transmitting and receiving agencies and his consolidation as the main system of service of documents, indirect consular or diplomatic channels have definitively lost its prominence.  Consular and diplomatic channels are almost not used in the Member States, because of being considered a relic of the past that can slow the process of service of documents. Although the majority of the interviewees consider that is difficult to say (43, 9%), it can be said that this mode of service of documents is very rarely used. In fact, only from the experience of the 3,2% of the interviewees (12 persons, out of 426) consider that persons interested in a judicial proceeding frequently provide service of documents via consular or diplomatic mode. Out of this 12 persons, 5 are solicitors, barristers, legal assistant or public notaries, 4 are judges, attorneys, bailiffs of court clerks and 2 are lecturers or professors.

 The recourse to the direct diplomatic or consular channel of transmission of documents should be limitated to exceptional circumstances.  Diplomatic and consular channels are relicts from the 1954 Hague Convention on civil procedure, which have no reason to exist in a unified European judicial territory.

4.11 ELECTRONIC SERVICE 4.11.1 Introduction

Electronic transmission is not a method of service of documents established by Regulation 1393/2007. However, article 65 of the Treaty on the European Union mentions that measures aiming to improve and simplify the system for cross-border service of judicial and extrajudicial documents come under the field of judicial cooperation in civil matters having cross-border implications. It is precisely this need to strengthen judicial cooperation, together with the need of adaptation to the new technologies, as well as the efficiency on the transmission of documents what justifies the analysis of the possibility of introducing the electronic means of transmission as a valid mechanism of service of documents. In this sense, electronic service provides a speedy and inexpensive alternative to the use of process servers. The effective use of technology can reduce the expense and delay associated with doing long distance litigation. But, despite these undeniable advantages, any

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recommendation aiming to support a legislative amendment need to be respectful of the rights of citizens and the economic and social environment of each Member State. Otherwise, the reform would be at risk of harming the progress made in this field. In the next paragraphs the current admission of electronic means of transmission by each Member State, as well as the major problems found regarding its eventual application will be analyzed.

4.11.2 Problems dealing with its practical implementation

1. Different technological conditions of Member States The implementation of any notification system requires that Member States have the necessary technical conditions to carry it out. However, human, material and technological resources differ from one country to another. In this sense, it is not possible to generalize the assertion that Justice Administration is computerized in all Europe. Even within each Member State there are differences between territories, to the extent that the use of the e-mail as a mean of communication is not widespread even in the transmissions between courts of the same country. Perhaps, due to these differences, Member States have not generalized the electronic service of documents in their national legislation:

MEMBE E- REGULATION COMMENTS R STATE TRANSMIS SION

Austria X Solely by way of certified mail Belgium No later than 01-01-2013 Bulgaria X Art. 611, Para. 4 Civil Procedure Code (Amended, SG No. 50/2008) The in practice the electronic receiving agency shall effect the service through a court official, by post, or transmission is not used because of by a particular form requested by the party. Where there is no court the uncertainty of the institution in the nucleated settlement where the service must be effected, acknowledgment of receipt service may be effected care of the municipality or mayoralty. Article 42. (1) CPC Communications shall be served by a court official, by post or through a courier service by means of a registered item with an addressee's acknowledgment of receipt. Where there is no court institution in the place of service, service may be effected care of the municipality or the mayoralty.

Czech X According to article 47 of the CPC (Act no 99/1963 Coll.) the delivery can be Republic effectuated through public data network either via so called data boxes or via email. Data box is a special box for electronic data, which is regulated in Act no 300/2008 Coll. , on electronic acts and automatic conversion of documents. There are certain subjects (such are all public authorities) who are obliged to have data box. The delivery into data box is understood to be delivery in own hands of the addressee and the document is delivered in the moment when the addressee logged into the data box or in case the addressee has not done so within 10 day period from the date when the document was sent into the data box, The email address can be used only shall the participant ask the court to use

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this way of transmission. The addressee has to have so called guaranteed electronic signature and confirm the delivery within 3 day period. In case the delivery is not confirmed the delivery is considered to be ineffective. I.2 If so, please provide an English translation of the procedural rules that govern electronic transmission: Article 46 Section (2) (2) Through the public data network the court can deliver to electronic address the addressee has communicated to the court shall the addressee consented with this way of delivery and shall the addressee communicated to the court accredited provider of certification services, who issued his or her qualified certificate and leads his or her records, or submitted to the court his or her valid qualified certificate. Article 47 of the CPC Delivery through public data network

1. Delivery through public data network is regulated in special legal act.1 2. When the court delivers according to art. 46 section 2 calls to the addressee to confirm the delivery within three days from sending the document by data message obtaining his or her guaranteed (certified) electronic signature. 3. - Delivery through public data network on the electronic address is ineffective, if the document sent on the electronic address has returned as undeliverable or if the addressee has not confirm its acceptance within 3 days from sending by data message according to section 2.

Estonia X CCP (Code of Civil Procedure) § 314. Service of procedural documents by unregistered letter, fax or electronic means (2) A procedural document may be served by electronic means. On electronic transmission, the document is sent or notice of the availability of the document is given to general e-mail address of the recipient or to the e-mail address of the recipient which has been declared to the court, or via an electronic system. Electronic documents transmitted to or prepared by the court shall be forwarded to the participants in the proceeding by electronic mail except in the case where electronic transmission is presumably impossible or a participant in the proceeding is presumably unable to view the content of the document or print it out. A document may be sent to an attorney-in-law, notary public, bailiff, insolvency administrator and a state or municipality authority in other way than electronically only if there is an important reason for that. (3) In case of electronic transmission the document may be transmitted without electronic signature; it is also allowed to transmit a copy of the document. If the document is originally signed on paper, then a scanned copy of it will be transmitted to the recipient or the document will be made available via the court’s electronic system. If possible, the document is transmitted with an electronic signature, if so requested by the participant of the proceedings. (4) Civil servant who has transmitted a document by ordinary mail, fax or by electronic means, must note in the file, to whom and when has the document been sent to be transmitted, unless the transmission is automatically registered in the E-file system. (5) If a document is transmitted by ordinary mail, fax or electronic means, it is deemed to be received, if the recipient sends to the court a return receipt either by mail, fax or electronically or opens the document fail in the E-file system, in which case the E-file system registers the return receipt automatically. In the return receipt one must note the date of the reception and the receipt must be signed by the recipient or his agent. An electronic return receipt must be digitally signed or transmitted by another similar secure method that enables to identify the sender and the time of transmission, unless the court has in the same proceedings already transmitted documents to that e-mail address or if the recipient has himself given the court his e-mail address. (6) If a document is transmitted by ordinary mail, fax or electronic means, the recipient must send the return receipt stipulated in paragraph 5 immediately. If he does not do so, the participant or his agent may be fined. (7) With the recipient’s permission the court may transmit the document by sending the letter to the recipient’s address without getting the return receipt

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stipulated in paragraph 5. With the recipient’s permission the court may transmit the document by fax or electronic means with the automatic return receipt.

German X sec. 174 Service of documents against receipt Yes, where service of documents y (1) A document may be served against receipt to a barrister, a notary, a ex officio against receipt (sec. 174 bailiff, a tax counsellor or another person being member of a professional para. 3) or party-to-party service group hypothesising extraordinary trustworthiness, or to an administrative between barristers against receipt authority. (sec. 195) apply. (2) … (3) An electronic document may be served to the addressees mentioned in par. 1. The said applies to a party with the party’s explicit permission. The document must have an electronic signature and must be secured against unlawful notice. Transmission may be executed by De-Mail-Service under sec. 1 of De-Mail-Act. (4) … sec. 195 Service of documents from barrister to barrister (1) If both parties are represented by barristers, one barrister may hand over the document to the other barrister against receipt. (…) sec. 174 para. 2 sentence 1 and para. 3. - sentence 1, 3 apply. (2) …

Greece Article 122 para. 5 of the CCP provides that "Judicial documents may be served electronically, provided that they bear an advanced electronic signature. Such a service is considered effected if the addressee returns to the sender an electronic receipt, bearing an advanced electronic signature, which will be valid as service report." However according to art. 72 of the above law the provision of art. 122.5 will come into force after a Presidential Decree issued at the proposal of the Minister of Justice, Transparency and Human Rights, where the details of the specific requirements will be defined. So far this Presidential Decree has not been published yet. Spain X

France X Yes, at so-called ordinary service of documents an authority may send a document by electronic means (DL § 17 para.2). Even at so-called simplified service and authority may deliver a document by electronic means (See Proposition 2009/10:237 p. 242: “§ 23 the Act on service of documents is independent of any specific technology and the document and the following message may be delivered otherwise than by Mail).

Ireland Generally no, however in individual instances the court may permit electronic transmission as a means of substituted service. Italy X Art. 149 a) of the Code of Civil Procedure (introduced by act n. 24/2010): “Where not explicitly prohibited by law, formal notification can be effected by electronic mail, even after creation of an electronic copy of the paper document. The court officer will send the electronic copy of the act, authenticated by electronic signature, to the certified e-mailbox of the addressee, as recorded in public lists. The notification is effective when the provider makes the document or the act available in the addressee’s certified e-mailbox. The notification is recorded by the court officer on a separate electronic document, with its electronic signature, joined to the act by way of computer technologies as identified by decree of the ministry of justice. Instead of the place of delivery, the e-mail address is specified, together with all other information required by art. 148, first comma.

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Sending and delivery receipts are joined to the original document or to its electronic copy, according to the legislation governing the signing, transmission and reception of documents by computer or remote communication technologies. Once notification is effected, the court officer returns the document served to the applicant, also by electronic mail, together with the registry note and the receipts mentioned in the preceding subparagraph”. P.S. On 21 February 2011 the Ministry of Justice approved Regulation n. 44, concerning new rules on the introduction of new technologies in the civil process. According to this regulation, the electronic service of documents must be effected through certified electronic mail: for this purpose, the Ministry of Justice will adopt a general service of certified e-mail, with a list of electronic addresses of legal professionals entered in official registers, authorized external persons or private users. Regulation n. 44/2011 governs, inter alia, service of electronic acts and documents, distinguishing among electronic simple service (section 16), electronic formal notification (section 17) and direct service between lawyers (section 18).

Cyprus X

Latvia X Judicial documents are delivered by using electronic postal, if a party notifies the court, that he/she agrees on the communication with court by using electronic postal. In that case judicial documents are transmitted to the electronic postal notified by the party. If the court sees that, there exist technical obstacles to deliver judicial documents by using electronic postal, they are delivered by using other means provided in this Article. Lithuani Courts submit documents by electronic means of communication to attorneys at It will be in force 01-01-2013 a law, attorneys at law assistants, bailiffs, bailiffs' assistants, notaries, state and municipal enterprises, institutions and organizations, financial institutions, insurance companies. In addition, electronic documents are served to persons who are obliged by law to transmit documents by electronic means. The documents may be submitted to other persons with their consent and in accordance with the procedural norms of this Code and if they have specified the necessary contact details. Luxemb X ourg

Hungary

Malta

Netherla Under discussion nds

Austria

Poland X Electronic transmission of judicial documents is in fact permitted in the Polish Code Civil Procedure (Kodeks poste■powania cywilnego, Act dated November 17th 1964, Journal of Laws, Dz.U. dated December 1st 1964, ╥KPC╙) in respect to the electronic dunning procedure, which is regulated in Art. 50528 ╨ 50537 KPC. In this procedure the plaintiff, in order for his judicial writs to be legally effective, has to transmit them to court be means of electronic communication. The defendant is not obligated to use the same methods of electronic transmission; however he is entitled to do so. The service of documents to the plaintiff takes place by electronic transmission with the use of an electronic system designed for the purposes of the electronic dunning procedure (electronic service) ╨ Art. 1311 ñ 1 KPC. The electronic service is deemed effective in the date specified on the electronic confirmation of delivery and in case of a lack of such service confirmation the electronic service is deemed effective after the lapse of 14 days as of from the day of the placement of data into the electronic system ╨ Art. 1311 ñ 2 KPC.

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However in order to make use of the electronic dunning procedure one is required to be registered by the competent authorities and also obtain a secure electronic signature. Portugal X Electronic transmission is admitted both in citation and notification formalities. In the first case it is admissible only in relation to civil executive actions to the National Treasure and to the Social Security Services relation to (Portaria n. º 331-A/2009 of 30th March). In the second case, the judicial representatives that use the electronic system of data (CITIUS) and that manifest that intention are notified exclusively by electronic means, without the use of post or fax (Portaria n.º 114/2008, 6 de Fevereiro de 2008)

Romania X According to Article 82 paragraph 1 of the Code of Civil Procedure, as amended by Law no.202/2010 on certain measures to accelerate settlement of lawsuits, published in the Official Gazette, Part I, no. 714 of 26 October 2010, "Any application to the courts must be made in writing and indicate the court, the name and surname, domicile or residence of the parties or, as the case may be, their name and registered address, the name and surname, domicile or residence of their representatives, if appropriate, the object of the application and the signature. Likewise, the application shall include, where applicable, also the data of identification of the means of communication used by the parties, such as telephone number, fax number, e-mail address or the like. " According to Article 86 ^ 2 of the Code of Civil Procedure, introduced by Law no.202/2010 on certain measures to accelerate settlement of lawsuits, "In order to obtain data and information necessary for the procedure of communication of summons, of other acts of procedure, and for fulfilling any powers related to their own jurisdictional activity, the courts have the right of direct access to electronic databases and other information systems held by public authorities and institutions. The authorities and institutions mentioned in paragraph 1 are required to take appropriate action to ensure direct access of courts to electronic databases and information systems provided in the same paragraph." According to Article 132 ^ 1 paragraph (2) of the Code of Civil Procedure, introduced by Law no.202/2010, "Judges will have the summons and communication procedures verified for each hearing. If necessary, the court shall order measures to be taken in order to resume these procedures. Besides these measures, the court can order that the parties be informed by telephone, telegraph, facsimile, electronic mail or by any other means of communication which ensure, as the case may be, transmission of the text of the act subject to communication or notice for presentation at the hearing, as well as acknowledgment of receipt of the act, respectively of the notice, if the parties have indicated to the court the corresponding data for this purpose. If information was made by telephone, the clerk will prepare a report that will show the means used for information and its object. " According to Article 54 subparagraph d1 of the Rules of Procedure of Courts approved by Resolution no. 387/2005 of the Plenum of the Supreme Council of Magistracy, as amended by Resolution no. 504 of 21 July 2011 of the Plenum of the Supreme Council of Magistracy, published in Official Gazette of Romania, Part I, no.565 of 9 August 2011, the sitting clerk "carries out the procedure related to summons and information of the parties, as well as communication of acts, by telephone, telegraph, electronic mail, facsimile or other means provided by law and prepares the report concerning the means of information or communication and its object, which is thereafter attached to the file." Article no. 93 of the same Rules makes a distinction in terms of means of

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transmission, between acts of summons and other applications. Thus, paragraph 1 of the mentioned article restricts the possibilities of submission of acts of referral of the court through correspondence, providing in this respect postal services, courier or facsimile ("Acts instituting the proceedings, delivered in person or by representative, arrived by mail, courier or facsimile, shall be submitted to the registry, where, on the same day, once established the object of the case, they receive, except as provided by law, ECRIS application number and certified date). With regard to correspondence relating to cases pending before the courts, paragraph no. 3 of the same article provides for the possibility of transmission by post, courier, facsimile, e-mail or other means of communication: "The other applications and acts of any kind, including administrative correspondence, arrived through post, courier, facsimile, e-mail or by any other means of communication, shall be recorded in the general register of case files, in the in/out register of administrative correspondence or in the register of petitions and shall be presented, if appropriate, to the president of the court or when the application concerns a case pending before the court, such shall be presented to the panel to whom the case was assigned. If a request or act concerns a case file pending before the court on the day of submission, after registration, the registrar shall submit it directly to the sitting clerk." The Rules do not contain express provisions related to the signing of applications transmitted by correspondence, but it is supplemented by relevant statutory provisions. With regard to electronic correspondence the relevant provisions are those of Article 5 of Law no. 455/2001 on electronic signature, published in the Official Gazette, Part I, no.429 of 31 July 200, stipulating that a document in electronic form that incorporates an electronic signature or has an electronic signature attached to or logically associated with it, based on a qualified certificate not suspended or not revoked at that time, and generated using a secure-signature-creation device is assimilated, in as much as its requirements and effects are concerned, to a document under private signature. The courts may inform the petitioners on the requirement provided by law for electronic signature certification, but according to the regulatory provisions, they must ensure the conditions needed for their receipt, printing and attachment to the case file, further the judge hearing the case analysing whether the application meets the formal requirements provided by civil procedure. Pursuant to Article 94 paragraph (2) of the same Rules, "Correspondence will be sent by mail, procedural agent or courier, by facsimile or e-mail or through any other means of communication which can be identified and monitored and which can ensure the official character thereof.”

Slovenia X

Slovakia X § 45 Act Nr. 99/1963 Coll. Civil procedure Code (1) Documents shall be delivered by the court or by post. The court may deliver the document through a judicial executor, the relevant municipal or police authority and, in cases provided by special regulations, also through the Ministry of Justice. (2)... (3) ... (4) Documents may be served also via electronic means, if a party or its representative asks for and notifies the court the address for the transmission of documents. ... (5) Delivery under paragraph 4 is excluded in cases of delivery of judgments and documents, which are to be served personally. (6) ... § 132 Ministerial Regulation The acceptance of documents served by means of electronic communication certified by an electronic signature is governed by special Acts (Act Nr. 215/2002 Coll. on electronic signature and other regulations issued by the National Security Authority). Such documents are transmitted to the registry for further procedure according to § 129. (remark: § 129 defines the opening hours of the registry and the use of the “application” – an electronic system of file evidence) § 132a Ministerial Regulation (1) The acceptance of documents served by means of electronic

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communication without being certified by an electronic signature is governed by special Acts (Act Nr. 215/2002 Coll. on electronic signature and other regulations issued by the National Security Authority). Such documents are transmitted to the registry for further procedure according to § 129. If such submission is to be supplemented in the defined period, and no supplement is submitted within the time limit, the submission shall be disregarded and this fact is to be recorded in the application (the electronic evidence of the files). (2) Electronic addresses, where district and regional courts accept submissions under paragraph 1 are made public on the webpage of the Ministry of justice. These addresses are to be included in the documents served to parties and their representatives. With a previous consent of the judge, the electronic address of the judge may be included in the documents served to the parties; the same applies to the address of a judicial clerk.

Finland X

Sweden X Yes, AT so-called ordinary service of documents an authority may send a document by electronic means (DL § 17 para.2). Even at so-called simplified service an authority may deliver a document by electronic means (See Proposition 2009/10:237 p. 242: “§ 23 the Act on service of documents is independent of any specific technology and the document and the following message may be delivered otherwise than by Mail). United X New program: Money Claim Online Kingdo (England and Wales). m

The disparities between Member States are evident. The non admittance by Lithuania or Belgium contrast with the advanced rules of some Member States as the United Kingdom, where a complete online procedure has been designed to claim for money (Money Claim Online Act: is run by the UK Court Service, and allows to file a claim in the Small Claims Court over the internet, previous creation of a money claim online user account to certify security and authenticity). In any case, the first service of document is made personally. When the claim is filed, the clerk will tell the claimant when the case will be tried. The clerk will then send the notice of claim to the defendant by both certified mail and ordinary first class mail. The notice of claim tells the defendant when the case will be tried and gives a brief statement of the claim and the amount of money seeked. If the copy of the claim sent by ordinary mail is not returned as undeliverable within 21 days, the defendant is presumed to have received notice even if the claim sent by certified mail has not been delivered. If the notice is not delivered by the post office, the court will set a new trial date and tell the claimant how to arrange for personal service of the notice of claim on the defendant. Personal service may be made by any person (including a friend or a relative) who is 18 years of age or older, except that the claimant or any other party to the action may not serve the notice of claim. If the service of the notice cannot be made upon the defendant within four months of the date when the action was first started, the action will be dismissed without prejudice to bringing the action at a later time. A Small Claims case will not proceed to trial until the defendant has been served with a notice of claim).

This lack of uniformity about the admission of electronic means of transmission, as well as the differences of the conditions required by its admission at a national level makes the implementation of this method at a European level difficult.

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2. Requirements for the implementation of the electronic transmission Implementation of the electronic service of documents seems to be subject to some previous requirements in the internal legislation of the Member States; requirements that should also be translated to the European legislation in order to assure the effectiveness of the service and the adequate protection of the parties´ rights: a) Notice of consent

A party must give consent in a specific proceeding to receive documents at an electronic legal service address by formal notice of that address. That is the case of Estonia, Germany, Latvia, Lithuania, Slovakia or Spain.

It should be clarify whether an email address in letterhead or correspondence constitutes consent to receive electronic service or not, whether it is necessary a specific and formal consent for each procedure or the possibility of withdrawal of consent to receive electronic service.

However, in some Member States it has been established an obligation to communicate using only electronic means if the parties are consistent with legal persons or groups of individuals by reason of economic or technical capacity, professional dedication or otherwise credited are guaranteed access and availability of technological means accurate. For example: • In the Czech Republic authorities are obliged to have data box. The delivery into data box is understood to be delivered to the addressee and the document is delivered in the moment when the addressee logged into the data box or in case the addressee has not done so within 10 day period from the date when the document was sent into the data box. • In Estonia, a document may be sent to an attorney-in-law, notary public, bailiff, insolvency administrator and a state or municipality authority in other way than electronically only if there is an important reason for that.

Regarding the public sector, Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framewok for electronic signatures allows Member States to make use of electronic signatures in the public sector subject to possible additional requirements. However, following the Study on Legal and Market Aspects of Electronic Signatures22 there are divergences in both the interpretation and implementation of this provision. It seems clear that in many countries the use of electronic signature in the public sector is subject to additional security requirements. Communicating electronically with public authorities is in many European countries possible only through the use of signatures based on Qualified Certificates issued by an accredited CSP.

22 Available in http://ec.europa.eu/information_society/policy/esignature/docs/electronic_sig_report.pdf

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b) Electronic Legal Service Address

This address may be either an account at an electronic legal service provider or an e-mail address. However, a problem for generalizing the use of the electronic service of documents is the lack of interoperability at cross obrder level, which constitutes a big obstacle for maket acceptance and the proliferation of the electronic signatures.

c) Proof of Service

Where service is affected electronically, it shall be ensured that there is a proof of service available sufficient to establish that the document came to the attention of the intended recipient. For this purpose, it would be necessary to determine that the document was received at the recipient party’s electronic legal service address. In the paper-based world, proof of service depends on the means of service. Proof of service of an electronic document can rely on the e- service system itself. The e-service system could automatically log when a party submitted a document for service and when it was opened. Courts or parties wanting to know whether and when service occurred could simply check the e-service system logs. For example, in the Czech Republic, according to article 47 of the CPC (Act no 99/1963 Coll.) the delivery can be effectuated through public data network either via so called data boxes or via email. Data box is a special box for electronic data, which is regulated in Act no 300/2008 Coll. on electronic acts and automatic conversion of documents. The delivery into data box is understood to be delivery in own hands of the addressee and the document is delivered in the moment when the addressee logged into the data box or in case the addressee has not done so within 10 day period from the date when the document was sent into the data box. But such a rule can not be generalized, not because of legal differences between Member States, but because of technical divergences. In the absence of that kind of rule, it may also be proved by: - An email delivery or “read” receipt; - Confirmation from an electronic legal service provider that the document was delivered to the party’s account at that service provider; - Verbal confirmation of receipt by the addressee; - Written confirmation by e-mail of receipt from the recipient party - Other means sufficient to satisfy that the document(s) came to the attention of the intended recipient.

But these notices of receipt are not really reliable because they depend on the active cooperation of the addressee, who normally avoids to be served in due form.

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e) Date and Time of Service

With paper documents, when service is complete depends upon the method chosen. For personal service or use of a delivery vendor, service is complete when the document is delivered to the party. If the document is mailed, it is considered served when placed in the mail. Use of the time of mailing, as opposed to the time of delivery, is based on the presumed reliability of the mail system. For e-service, the completion of service could be when it is delivered to the party being served. However, because of the virtually instantaneous delivery and availability of the document, and the independence and relative reliability of the e-service system, service could be deemed complete upon submission of the document to the e-service system. In any case, application of this approach is complicated when there are non-participants that must be served by traditional means. Once again, another reason to reject the admission of the crossborder electronic service of documents: the date of reception needs to be clearly identified because calculation of time conditions the admission or rejection of the documents submitted by the parties. For example, under Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European small claims procedure, the defendant replies within 30 days. The defendant then has 30 days to prepare and return his response, counting from the date of service of the answer form. The defendant's response is forwarded to the claimant. Within 14 days of receiving the defendant's response, the court forwards a copy of it to the claimant, with any relevant supporting documents. And it is the same with procedures at national level. f) Validation or signature by the addressee

In the paper world, the document with the original signature is filed by the addressee. Part of the clerk’s review of a document submitted for filing is to check for a signature. The check is cursory (only as to whether there is a signature). If it is not signed, the document is returned. If there is a signature, the clerk assumes the document was signed by the person whose signature appears. The clerk does not authenticate the signature, relying instead on the parties to challenge the veracity of the signature. Although there is the potential for someone to file a document with a forged signature, it is an extraordinarily rare occurrence.

With electronically filed documents, there is no piece of paper with a signature on it. Several options are available to comply with a signature requirement. The choice of approach should weigh the need for verification against the realistic risk of abuse. It remains to be seen whether expanded use of e-filing increases the potential for someone falsely filing electronic documents in a case.

3. Right to refusal Right to refusal of documents may not be adequately protected by electronic means of transmission. This right refers to the possibility the addressee has, according to the Regulation, to refuse service if documents are drafted in a language which the addressee does not understand or in a language other than the official language of the Member State addressed. Due to the fact that there is no natural person effecting the service, nobody qualified may give

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him explanations about the type of information and the implications of the consequences of the transmission. And nobody can certify that the addressee has been informed about his right to refusal. None of the legal systems analized contain rules regarding the way of granting the right to refusal because of lack of translation of the served documents. The main reasom is that this is not normally a problem in national service of documents.

4. Party-to-party service Party-to-party service may be understood as exchange of documents directly between claimant and defendant by electronic means. According to the experts reports, only Lithuania, France, Greece, Ireland, Sweden and United Kingdom admit this kind of mean of service of document under their national legislation.

However, only in the case of the United Kingdom a further explanation of this service is made via MCOL. The parties need to previously agree that they wish to receive service by e_mail, and then a certificate of service will be prepared. Once again, previous consent of the parties is necessary. The lack of general acceptance and the different technological development of the Member States make this method of service not recommendable having into account it does not guarantee properly the rights of the parties involved.

4.11.3 Opinions and proposals

 At the present time the absence of technical uniform condition around Europe make the risks of the electronic transmission of documents more important than the positive consequences of its implementation, since rights of the sender and of the addressee cannot be adequately protected. In this sense, documents served by electronic means require appropriate safeguards, especially in relation to the receipt and acknowledgement or understanding of such documents.  Any action on this field requires the previous modernization of the institutions, bodies and person involved on the service of documents at European level.  Service of documents by email should be offered on an optional basis so that parties and their representatives have a choice about whether to utilise this form of service. This is in contrast to ordinary service.  Taking into account the current differences between legislations of Member States, it seems necessary that the acceptance of the electronic transmission of documents is preceded by the introduction of a new procedural rule admitting the electronic means attested by an automatic confirmation of delivery, provided that the addressee has expressly accepted this method of service in advance. The protection of the right to refuse a document would become unnecessary if the validity of this service of documents should be conditioned to the translation of

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the documents served to the official language of the receiving State, or to any other language the addressee understands. However, the problem with the electronic transmission arises when there is no way of proving the understanding of the documents sent by the addressee, unless with the unfrequent cooperation of the addressee.  Effectiveness of this method of service of documents at crossborder level would in any case depend on the active cooperation of bothparties: sender and recipient. Otherwise, differences in legal requirements and technical conditions, together with technical limitations related to the protection of the right to refusal makes this method of service of documents non recommendable.

4.12 COMPARISON OF VARIOUS MODES OF SERVICE IN EU REGULATION

Regulation 1393 has contributed in an important way in the improvement, the simplification and the acceleration of the service of documents in the European Union.

It is indisputable that the modes of service, according to the degree of certainty which they bring in information to the addressee influence the process of abolishing the exequatur.

The references to Regulation 1348/2000, currently 1393/2007, are recurring in other European regulations:

• Article 26 of Regulation (EC) n°44/2001 of the Council of 22 December 2000 concerning the jurisdiction, the recognition and the execution of court decisions in civil and commercial matters. • 21st “whereas”, article 28 of Regulation (EC) n°805/2004 of the European Parliament and the Council of the 21 April 2004 creating a European Enforcement Order for uncontested claims. • Article 27 of Regulation (EC) n°1896/2006 of the European Parliament and the Council of 12 December 2006 creating a European Order for Payment. • 3rd “whereas” of Regulation (EC) nº861/2007 of the European Parliament and the Council of 11 July 2007 on small claims.

In general, texts provide that they shall not affect the application of Regulation 1393. But disparities of the modes applicable to the service of documents may be found within the framework of these regulations. In any case, none of these divergences has given place to judicial problems. According to the report of the experts, no issues have been filed concerning the service of documents under these Regulations, and there is not preliminary question submitted to the ECJ in this sense.

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In any case, before analyzing the divergences between EU Regulations, some remarks should be made regarding the scope of application of Regulation 1393 and its applicability to “civil and commercial issues”. What does “civil and commercial mean? Any request of service of documents made by, for a example, a criminal court is excluded from the scope of application of the Regulation, even having a civil and commercial character?

The definition of "civil and commercial matters" is is to beinterpreted according to the ECJ case law on the interpretation of Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. However, despite the clear influence of the latter, the material scope of the Regulation on Service of Documents includes some subjects that are excluded from the first. So with the status and capacity of natural persons, matrimonial property, wills and succession; bankruptcy arrangements, compositions and analogous proceeding, etc.

The question that arises is whether the administrative or criminal nature of the organs making the request prevents the application of Regulation (EC) 1393/2007, which would limit the cooperation between the courts of the Member States concerning the service of documents.

A comparison of the major international legal systems support the conclusion that the whole sequence of civil process has been judicialized and is part of the right to effective judicial protection in the comparative law. The problem has already been tackled in the field of taking of evidence: at EU level the Advocate General Juliane Kokott in the conclusions to the case C- 175/06 (Tedesco / Fittings SrL) came to the conclusion of making a distinction between the warrant of a measure of taking evidence and its implementation. The execution of a request of obtaining evidence can not be rejected merely because the execution of certain types of evidence does not fall between the functions of the courts. “Nor is it an imperative requirement that judicial functions may be exercised only by persons who, in organisational terms, are part of the court system. A supervising solicitor who is engaged by the court – albeit on the application of a party – to ensure the proper service and performance of a search order may be regarded also as exercising judicial functions. That view is supported by the fact only certain particularly experienced solicitors are entrusted with this function. Moreover, in order to ensure the necessary neutrality in the execution of their task, they are not permitted to belong to the same firm of solicitors as the applicant’s legal representative23. Were only the taking of evidence as performed by the court itself to be treated as falling within the ambit of judicial functions, the practical effectiveness of the Regulation would be excessively impeded. Such an interpretation would also preclude, for example, the obtaining of expert reports which, likewise, are not drawn up by the court itself, but by an expert”24.

In short and in our opinion, the concept of "civil and commercial matters" should not prejudice the service of documents measures ultimately implemented by administrative authorities.

23 Par. 103 24 Par. 104

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4.12.1 Regulation 805/2004 (European Enforcement Order for uncontested claims)

The Regulation lays down minimum standards with regard to the service of documents (the document instituting proceedings and, where applicable, the summons to a court hearing) to ensure that the rights of the defence are respected. Regulation 805/2004 seems to provide in articles 13 to 15 the foundations of minimal standards for the service of documents without however deciding of any hierarchy between these various means, nor to refer to internal legislations.

The Regulation admits two general types of service: service with proof of receipt (article 13) and service without proof of receipt by the debtor (article 14). For both cases, service may also be effected on a debtor's representative (article 15).

As regards the service with proof of receipt, there is the possibility of:

1. Personal service attested by an acknowledgement of receipt, including the date of receipt, which is signed by the debtor (article 13.1 a), or personal service attested by a document signed by the competent person who effected the service stating that the debtor has received the document or refused to receive it without any legal justification, and the date of the service (article 13.1 b).

2. Postal service or service by electronic means attested by an acknowledgement of receipt including the date of receipt, which is signed and returned by the debtor (article 13.1 c) and d)).

3. Finally, any summons to a court hearing may be served in writing pursuant to the above- mentioned means or orally in a previous court hearing on the same claim and stated in the minutes of that previous court hearing (article 13.2).

If the debtor's address is known with certainty (article 14.2), service without proof of receipt is admitted for the following situations:

1. Personal service at the debtor's personal address on persons who are living in the same household as the debtor or are employed there (Art. 14.1 a).

2. In the case of a self-employed debtor or a legal person, personal service at the debtor's business premises on persons who are employed by the debtor (Art. 14.1 b).

3. Deposit of the document in the debtor's mailbox (Art. 14.1 c).

4. Deposit of the document at a post office or with competent public authorities and the placing in the debtor's mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the

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notification as effecting service and setting in motion the running of time for the purposes of time limits (Art. 14.1 d).

5. Postal service without proof of receipt where the debtor has his address in the Member State of origin (Art. 14.1. e).

6. Electronic means attested by an automatic confirmation of delivery, provided that the debtor has expressly accepted this method of service in advance (Art. 14.1. d).

Service done pursuant to paragraphs (a) to (b) of article 14 shall be attested by a document signed by the competent person who effected the service, indicating the method of service used; and the date of service; and where the document has been served on a person other than the debtor, the name of that person and his relation to the debtor, or an acknowledgement of receipt by the person served.

Although the situations contemplated by article 14 do not allow to know with certainty that the recipient is actually served, the obligation to know the debtor's address contained in article 14.2 excludes all those sorts of service based on legal fictions or assumptions which do not ensure at all that the debtor has the possibility of being informed about the existence of any proceedings against him.

All the methods of service listed in Articles 13 and 14 are supposed to be characterized by either complete certainty (Article 13) or a very high degree of likelihood (Article 14) that the document served has reached its addressee. At least they are characterized for a degree of certainty enough for a simplified proceeding (us an uncontested claim is) that should offer significant advantages as compared with other procedures in which the object of the claim is under discussion.

4.12.2 Regulation 1896/2006 (European Order for Payment)

Regulation 1896/2006 takes the same minimal standards but, opposed to Regulation 805/2004, expressly refers to the rules of the national law of the State in which the service of documents must be carried out (article 13).

This remission to the national Law of the State in which the service of document is to take place has no sense and only may contribute to distort the aim of the Regulation: “Due to the differences between Member States' rules of civil procedure and especially those governing the service of documents, it is necessary to lay down a specific and detailed definition of minimum standards that should apply in the context of the European order for payment procedure“(Whereas 19).

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It would seem recommendable to maintain the same minimal standards as in Regulation 805/2004, since the same character of simplified procedure concurs and the procedural certainty observed is enough for such a kind of proceedings.

4.12.3 Regulation 861/2007 (Small claims)

Regulation 861/2007 envisages the postal service with acknowledgment of receipt as a principal mode of handing-over. And only failing this, envisages one of the means mentioned in articles 13 and 14 of Regulation 805/2004 (article 13).

Once again lack of coherence is evident. There is no sense in requiring acknowledgment of receipt for a claim of less than 2.000,00 Euros when other Community regulations, if the debtor's address is known with certainty, allows service without proof of receipt in the following situations:

1. Personal service at the debtor's personal address on persons who are living in the same household as the debtor or are employed there.

2. In the case of a self-employed debtor or a legal person, personal service at the debtor's business premises on persons who are employed by the debtor.

3. Deposit of the document in the debtor's mailbox.

4. Deposit of the document at a post office or with competent public authorities and the placing in the debtor's mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time limits.

5. Postal service without proof of receipt where the debtor has his address in the Member State of origin.

6. Electronic means attested by an automatic confirmation of delivery, provided that the debtor has expressly accepted this method of service in advance.

On the other hand, if acknowledgment of receipt is required for granting the right of defense of the addressee (who has 30 days to answer the claim according to article 5.3) it has no sense to allows the means of service mentioned in articles 13 and 14 of the Regulation if the acknowledgment of receipt is not possible. In this case, remission should be made to Regulation 1393/2007, general rule in the field of service of judicial and non judicial documents.

4.12.4 Conclusions

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 The disparity of these modes reveals a lack of coherence which seems to go against the need for improving and simplifying the system of cross-border service of judicial and extra-judicial documents envisaged by article 65 of the Treaty establishing the European Community.

 In any case it is regrettable that Community regulations are not entirely updated and remissions are made to the derogated Regulation 1348/2000.

 The mode of transmission regulated in Section 1 of the Regulation 1393/2007 should be promoted. If Central bodies and transmitting and receiving agencies were effective in the functions assigned by the Regulation, this method of transmission would be the best one from a perspective of granting the rights of both procedural parties the applicant and the addressee.

 Direct transmission of documents between local bodies is the quickest and safest mean of transmission of documents in terms of protection of the procedural parties´ rights. Its general use should be promoted, without promoting other means of service (section 2 and articles 14 and 15) which distort its substance, above all taking into account that the respect to the right of defense of the defendant is essential to achieve the free movement of judgments within the European Union.

 While the role of the transmitting and receiving agencies is not effective enough, other methods of service may be coherently used in those simplified procedures as those regulated by Regulation (EC) No 1896/2006 creating a European order for payment procedure, Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims and Regulation (EC) No 861/2007 establishing a European Small Claims Procedure. However, it would seem recommendable to maintain in these EU Regulations the same minimal standards as in Regulation 805/2004, since the same character of simplified procedure concurs and the procedural certainty observed is enough for such a kind of proceedings.

4.13 COMPARISON OF NATIONAL RULES

The analysis of national legislation and the different internal solutions on service of judicial documents may have a double purpose: a) to study the possibility of introducing minimum procedural rules at European level, directly applicable and common to every Member States; and b) to establish a set of procedural rules inspired and based on the principles common to national legislations, that Member States can incorporate into their domestic legal systems.

Both solutions lead to overcome the differences that hinder the European judicial cooperation in civil matters. This section will be focused on the second purpose, that is, to find the common procedural solutions applied by each Member in order to establish a body of procedural rules that could be incorporated at national level.

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In order to be self explanatory the present section incorporates tables already inserted previously in other sections of the present document. The purpose is to facilitate the reading and comprehension.

4.13.1 Right to refusal

4.13.1.1 Comparative table

As shown in the table below, there are no uniform solutions in all Member States:

RECEIVING MEAN OF LANGUAGE PROOF OF THE SOLUTION TO THE NON-JUDICIAL MEMBER INFORMATION INFORMATION REFUSAL DOCUMENTS STATE Austria

Belgium The Regulation itself Belgium provides for a standard form which explains the right to refuse the document served. The judicial officer, when conducting service, hands over this document to the addressee. If service is done by post, no information is available about the way the addressee is informed about his or her right to refuse. Bulgaria On a written way. If the Bulgarian The addressee is No special rules serving of document language or informed about his occurs in court sitting, any of the right to refuse a the judge informs the official document by using addressee about its languages of annex ІІ or by the right and records this the originating judge in the Court fact in the protocol Member State, sitting. if the addressee is a national of the said State. Cyprus Czech Republic

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Estonia The addressee is Section 325. Refusal to Estonian and In inner-state In inner-state informed by the accept procedural English transmissions, transmissions, standard form under documents. a person refuses the addressee is the addressee art. 8 and annex ii of to accept a document not allowed to is not allowed the regulation. without good reason, the refuse the service to refuse the document is deemed to have of documents. service of been served on the person documents. as of the refusal to accept the document. In such case the document shall be left in the dwelling or business premises of the recipient or placed in the recipient's post box. In the absence of such premises or post box, the document shall be returned to the court. The refusal shall be certified by a delivery notice which must be returned to the court without delay (sections 313 and 315 (3) of CCP). This does not apply in case of justified refusal under art. 8 of the Regulation Finland France Under French For signification: according domestic law, the to art. 656 Code de refusal of the procedure civile: “if no one documents served is may or is willing to receive not a right. the copy of the process and Nevertheless, this if it appears, from the does not mean that the inquiries made by the bailiff addressee cannot to which a reference is made refuse it. It means that in the writ of service, that the the refusal has no legal addressee lives at the effect on the validity of address indicated, the the services. service will be deemed to have been made at the place of domicile or residence.In the latter event, the bailiff is bound to deposit a copy of the process at the city hall on the same way, or, no later than the first day on which the city hall services are open to the public. The mayor, his deputy or the town clerk will refer in the delivery list and will give a receipt. The bailiff will leave at the place of domicile or residence of the addressee

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a non-delivery notice in pursuance to the provisions of the preceding article. Such notice must state that a copy of the process must be collected as soon as possible from the city hall, against a receipt or annotation, by the interested party or by any person specially authorised The copy of the process will be kept at the city hall for three months. At the expiry of this time- limit, it (the city hall) will be discharged from keeping the same. The mayor, his deputy or the town clerk may, at the request of the addressee, will transmit a copy of the process to another city hall where it may be collected under the same conditions”. Germany Under German Procedural Law the addressee is able to refuse a document without any harm in a situation like an mistaken identity, but the law does not provide the need for informing the addressee about a “right” to refuse the documents served. If the document served is refused without good reason, the document is regarded as being served. Greece Hungary Ireland Italy On a written way or by Italian Through the In case of refusal by the No difference electronic tools registry note, by addressee, the court officer which the court note it down in his registry officer must record note, and the notification is his activity (art. 148 considered as effected (art. of the Code of Civil 138 Code of the Civil Procedure). In Procedure). case of service by fax or e-mail, the record consists of

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a separate electronic document, with the electronic signature, joint to the act, according to the rules provided for by the Ministry of Justice [section 149 a) of the Code of Civil Procedure]. Latvia In a written way The addressee The server makes a mark in Similar to judicial Latvian with a signature a document mentioning documents (there confirms that he or reasons of refusal, date and is no distinction) she has received time. It is not an obstacle to the serviced heir a case documents with the standard form from Annex II of the Regulation. Summoned to the Court and certified by the Court itself Lithuania in a written way Lithuanian The addressee If the document served is There are no language. confirms by refused by the addressee, strict rules However, the signature that he the court informs the Ministry concerning the court may, use has received the of Justice as central body information about any other serviced responsible for supplying the right to refuse standard form documents with the information to the other kind of from Annex II standard form from transmitting agencies, and documents (not of the Annex II of the informs the sending agency in court). Regulation if Regulation. about reasons for not serving the addressee the documents. understands other language than Lithuanian language Luxembour g Malta in writing by delivering Maltese and The officer a copy of the “Notice to English; effecting service Addressee” attached however the makes a note as Annex II to the notice is thereof in his Regulation. available in all statement of other official service languages of the EU and a copy in the language of the addressee, if known, will also be

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delivered Netherland s Austria Poland Portugal Orally, but the refusal Portuguese. There are no In case of refusal to sign the The same rules is mentioned by the The Court of express rules citation, the execution agent apply. serving officier in second gives notice that the certification of the cited instance of documents stay at his act. Porto (Tribunal disposal on the da Relação do administrative services of the Porto), Court, mentioning it in the procedure n. certificate. The Secretary will 3003/08.3TVL afterwards notify the person SB-A.L1-7, of to be served by registered 17/11/2009, post, with the indication that has stated that the documents can be found “If the stranger, there.If the execution agent at the time of or the Court officer are service, living unable to carry out their task, abroad, is not but it is confirmed that the informed of the person to be cited lives or possibility of works in the indicated place, refusing the a note should be left to document, another person (for instance because it sis someone that lives or works not with the person to be cited or accompanied a neighbor) that is in good by a conditions of transmitting the translation, the precise date and hour for citation is void another attempt of serving because in the documents. If in that face of precise date and hour, the Portuguese law person to be cited is not we are before present, the citation is done a essential on the person that is in better formality, conditions of transmitting the according to citation to its art. 198, addressee.Whenever a third paragraph 1, of party receives a citation and the CPC. "). does not transmit it to the person that should have been served, this amounts to a crime of disobedience. If the citation is done in a person that does not live with the cited party, this responsibility finishes if the elements are given to a person of the house.Whenever the cooperation of third persons

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is unavailable, the citation is done publicizing in the most appropriate place and in the presence of two witnesses the notice of citation, with the indication of all documents that should mandatorily be transmitted to the person to be cited, declaring that the duplicates and documents are available at the judicial secretary. Romania There are no express There are no There are no Pursuant to Article 92 of There are no rules express rules express rules the Code of Civil express rules Procedure, "The summons shall be handed personally to the addressee, who will sign the certificate of receipt, the serving officer certifying her/his identity and signature.(2) If the addressee, being at home, does not want to receive the summons or, receiving the same, does not want or cannot sign the certificate of receipt, the officer shall leave the summons in the hand of the addressee or, in case of refusal to receive the summons, the officer shall post the same on its front door, recording the circumstances in a minutes.(3) If the addressee is not found at home or if, in the case of hotels or buildings consisting of several apartments, he/she did not indicate the room or apartment where he/she lives, the agent shall hand over the summons, in the first case, to a person in the family or, in lack thereof, to any person who lives with him/her, or who, usually, receives the correspondence, and, in other cases, to the administrator, the keeper, or the one who usually replaces him/her; the person receiving

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the summons shall sign the certificate of receipt, the officer certifying his/her identity and signature and filling in a report on the followed procedure.4) If the persons shown in the preceding paragraph do not want or cannot sign the certificate of receipt, the officer shall draw up minutes, leaving the summons in their hands; if those persons do not wish to receive summons or are not present, the officer shall post the summons either on the front door of the addressee or, if there is no indication on the exact apartment or room, on the main door of the building, also drawing up minutes about all these.5) The summons cannot be handed to a minor under the age of 14 or to a person incapable of judgement. The power of judgement is presumed until contrary proof.6) The provisions of this article shall apply also for communication or notification of any procedural act.” Slovenia Slovakia The Code on Civil § 58 of the Act: There are no There are no specific rules the Act on Procedure provides for “If no specific rules Private several types of authenticated International Law service (e.g. by post, Czech or and Rules of hand service by officer Slovak International of the court etc). In translation is Procedure does case the document is attached to a not distinguish being served by post, foreign between judicial the information will document, it or non-judicial (most likely) be shall be served documents enclosed in written way on the alongside with the addressee if he served document. accepts it voluntarily; the addressee shall be advised that he has to be

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aware of the potential legal consequences of his refusal to accept the document.” Spain Sweden I. Internal Law Swedish The addressee The addressee may have No difference An addressee may not may, within one returned the document avoid service of week, have stating that he refuses to documents by refusing returned the accept it because he does to accept a document document stating not understand the language (See Proposition that he refuses to used. And a certificate of 2009/10:237 P. 172) If accept it. Or it non-service of document an attempt at service appears from a may have been sent to the by process-server has certificate of requesting authority. failed because the service or non- addressee has refused service that he has to accept the been informed. document, this shall be left where the addressee has ben found (DL § 32 PARA.2). Service is deemed to have been effected already at the time when the addressee refused to accept the document (DL § 39 PARA. 1).

II. Service at the request of a foreign authority: The addressee is informed through a written standard form or when it is the police that effect service of a document both orally and through a written standard form (.according to the Swedish Ministry of Justice) United Kingdom

 Mean of information

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From the information gathered from the different European experts consulted it has been possible to concludet that the recipient is informed about his right to refusal in a written way. Only in Portugal information is provided orally by the serving officer although refusal is mentioned in the certification of the cited acts.  Language of information Information is provided in any case in the official language of the requested State, although sometimes information is also provided in a language understood by the addressee.  Proof of the information of the right to refusal Information of this right is usually proved by the signature of the addressee or by a note made by the officer in his statement of service.  Consequences of the refusal A distinction must be made between refusal supported on article 8.1 and unjustified refusals. Consequences of the first one are regulated in Regulation 1393 (“the service of the document can be remedied through the service on the addressee in accordance with the provisions of this Regulation of the document accompanied by a translation into a language provided for in paragraph 1. In that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed. However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2)”). In most legal systems, the consequence of an unjustified refusal is to deem the document served:

• ESTONIA: Section 325. Refusal to accept procedural documents If a person refuses to accept a document without good reason, the document is deemed to have been served on the person as of the refusal to accept the document. In such case the document shall be left in the dwelling or business premises of the recipient or placed in the recipient's post box. In the absence of such premises or post box, the document shall be returned to the court. The refusal shall be certified by a delivery notice which must be returned to the court without delay (sections 313 and 315 (3) of CCP). This does not apply in case of justified refusal under art. 8 of the Regulation.

• FRANCE: For signification: according to art. 656 Code de procedure civile: “if no one may or is willing to receive the copy of the process and if it appears, from the inquiries made by the bailiff to which a reference is made in the writ of service, that the addressee lives at the address indicated, the service will be deemed to have been made at the place of domicile or residence.

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In the latter event, the bailiff is bound to deposit a copy of the process at the city hall on the same day, or, no later than the first day on which the city hall services are open to the public. The mayor, his deputy or the town clerk will refer in the delivery list and will give a receipt.

The bailiff will leave at the place of domicile or residence of the addressee a non-delivery notice in pursuance to the provisions of the preceding article. Such notice must state that a copy of the process must be collected as soon as possible from the city hall, against a receipt or annotation, by the interested party or by any person specially authorised The copy of the process will be kept at the city hall for three months. At the expiry of this time-limit, it (the city hall) will be discharged from keeping the same. The mayor, his deputy or the town clerk may, at the request of the addressee, will transmit a copy of the process to another city hall where it may be collected under the same conditions”.

• GERMANY: German Procedural Law. Under German Procedural Law the addressee is able to refuse a document without any harm in a situation like a mistaken identity, but the law does not provide the need for informing the addressee about a “right” to refuse the documents served. If the document served is refused without good reason, the document is regarded as being served.

• ITALY: Art. 138 Code of the Civil Procedure. In case of refusal by the addressee, the court officer note it down in his registry note, and the notification is considered as effected.

• LATVIA: The server makes a mark in a document mentioning reasons of refusal, date and time. It is not an obstacle to heir a case.

• LITHUANIA: If the document served is refused by the addressee, the court informs the Ministry of Justice as central body responsible for supplying information to the transmitting agencies, and informs the sending agency about reasons for not serving the documents.

• PORTUGAL: In case of refusal to sign the citation, the execution agent gives notice that the documents stay at his disposal on the administrative services of the Court, mentioning it in the certificate. The Secretary will afterwards notify the person to be served by registered post, with the indication that the documents can be found there.

If the execution agent or the Court officer are unable to carry out their task, but it is confirmed that the person to be cited lives or works in the indicated place, a note should be left to another person (for instance someone that lives or works with the person to be cited or a neighbour) that is in good conditions of transmitting the precise date and hour for another attempt of serving the documents. If in that precise date and hour, the person to be cited is not present, the citation is done on the person that is in better conditions of transmitting the citation to its addressee.

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Whenever a third party receives a citation and does not transmit it to the person that should have been served, this amounts to a crime of disobedience. If the citation is done in a person that does not live with the cited party, this responsibility finishes if the elements are given to a person of the house.

Whenever the cooperation of third persons is unavailable, the citation is done publicizing in the most appropriate place and in the presence of two witnesses the notice of citation, with the indication of all documents that should mandatorily be transmitted to the person to be cited, declaring that the duplicates and documents are available at the judicial secretary.

• ROMANIA: Pursuant to Article 92 of the Code of Civil Procedure. "The summons shall be handed personally to the addressee, who will sign the certificate of receipt, the serving officer certifying her/his identity and signature. (2) If the addressee, being at home, does not want to receive the summons or, receiving the same, does not want or cannot sign the certificate of receipt, the officer shall leave the summons in the hand of the addressee or, in case of refusal to receive the summons, the officer shall post the same on its front door, recording the circumstances in a minutes. (3) If the addressee is not found at home or if, in the case of hotels or buildings consisting of several apartments, he/she did not indicate the room or apartment where he/she lives, the agent shall hand over the summons, in the first case, to a person in the family or, in lack thereof, to any person who lives with him/her, or who, usually, receives the correspondence, and, in other cases, to the administrator, the keeper, or the one who usually replaces him/her; the person receiving the summons shall sign the certificate of receipt, the officer certifying his/her identity and signature and filling in a report on the followed procedure. (4) If the persons shown in the preceding paragraph do not want or cannot sign the certificate of receipt, the officer shall draw up minutes, leaving the summons in their hands; if those persons do not wish to receive summons or are not present, the officer shall post the summons either on the front door of the addressee or, if there is no indication on the exact apartment or room, on the main door of the building, also drawing up minutes about all these. (5) The summons cannot be handed to a minor under the age of 14 or to a person incapable of judgement. The power of judgement is presumed until contrary proof. (6) The provisions of this article shall apply also for communication or notification of any procedural act.”

• SWEDEN: The addressee may have returned the document stating that he refuses to accept it because he does not understand the language used. And a certificate of non-service of document may have been sent to the requesting authority.

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4.13.1.2 Conclusions

 It has no sense to unify procedural rules at national level wherever the solution is provided by the Member States.

 Legal certainty will be achieved if national rules on service of documents will be unified in the following sense:

o The consequence of an unjustified refusal should be to deem the document served. An unjustified refusal is the one not supported on a legal reason for the refusal of document (for example, in cross border service of documents the lack acknowledgement of the language in which the document is served).

o Unification of the persons allowed to receive the document on behalf of the addressee. Most common rule to all Member States is: . In case of service into the habitual residence: a person in the family or any person who lives with him/her. . In case of service into the professional place of business: any person who works with the person to be cited.

 It seems difficult to establish a common rule on the number of attempts to be made in case of absence of the addressee, as rules differs too much in Member States.

4.13.1 Cost of service

4.13.1.1 Comparative table The table below offers the description of the situation in each Member State in relation to the cost of the service.

FREE OF MEMBER STATE ARTICLE 11 CHARGE

Austria No fixed fees apply. X

The costs of service by a bailiff correspond to a flat-rate fee of 135 Euros per service payable by Belgium the natural or legal person to whom the writ is addressed before any intervention in proceedings. Bulgarian legislation does not stipulate a fee for the service of documents in the normal way. A Bulgaria fee fixed in accordance with the Tariff for fees and costs under the Private Bailiffs Act is charged

for the service of documents by a particular method.

Cyprus €5 for every document.

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Czech Republic Service in the Czech Republic is not subject to fees. X

The cost of service involving recourse to a judicial officer is DKK 30.76 plus transport costs, cf. Denmark Notice No 508 of 1 June 1998 and Notice No 1295 of 20 November 2007.

Finland Service of documents is free of charge for foreign transmitting agencies. X

The fixed fee for service by a bailiff is EUR 50. This fee must be paid when documents are France transmitted except where the applicant is receiving legal aid.

The costs referred to in Article 11(2) may under normal circumstances be incurred up to €20.50. Germany They will be calculated in accordance with the laws on court expenses depending on the type of service requested.

Greece For 2010, no costs of service are imposed. X

This provision does not apply to Hungary (in accordance with the Regulation the courts deal with Hungary the service of documents coming from other Member States, so the fee for effecting the X

document service is not charged.)

Ireland Costs of the type envisaged do not arise under Irish law. X

Italy There are currently no service costs for documents from abroad. X

The Latvian authorities do not serve documents pursuant to Article 11(2) (a) of the Regulation, Latvia X and Latvia is therefore not communicating the information specified in Article 11(2).

Lithuania In Lithuania no fees are charged for the services referred to in Article 11(2) (a). X

Luxembourg The flat rate is set at € 138.

Service of judicial documents coming from a Member State to the Maltese receiving agency in Malta terms of the regulation does not give rise to any payment or reimbursement of taxes or costs for X services rendered by the Maltese authorities.

The fixed fee for the costs of recourse to a judicial officer or to a person competent under the law Netherlands of the Member State addressed has been set at €65.

Poland The document service is free. X

The service of judicial documents coming from a Member State shall not give rise to any Portugal X payment of taxes or costs for services rendered.

On the basis of Article 722 of the Code of Civil Procedure, service of documents is free of charge Romania when done through the court by the process server.

Article 722. - (1) The effecting and service of procedural documents shall be carried out free of charge.

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(2) The necessary expenditure for the effecting and service, by post or by other means, of the procedural documents generated by a trial shall be covered from funds allocated specifically for that purpose from the state budget. Article 90 et sec. of the Code of Civil Procedure lay down in detail how the Monika Hinte court serves documents via the process server. In principle the service is carried out by the requested courts. However, a court may, under Slovakia certain circumstances, commission a bailiff to serve the documents. In such a case the bailiff's fee is fixed at 6,64 € per served document.

Slovenia NA

The costs are as provided for by the applicable Spanish legislation, which does not currently Spain X specify any particular amount.

Sweden does not intend to make a charge for recourse to a judicial officer or other competent Sweden X person.

1. England and Wales: We will not be charging for service. United Kingdom 2. Northern Ireland: Fees will not be charges for judicial services, but Northern Ireland will try to

recover process server costs.

4.13.1.2 Conclusions

 In the field of cost of service of documents, divergences among Member States are so important that it seems impossible to establish a common rule at national level.

 In any case, there is no need of common rules at national level in this field if the solution afforded by Regulation 1393 avoids the arisen problems.

4.13.2 Direct service

4.13.2.1 Comparative table

Direct service of documents is not widely spread among Member States. In fact, this mode of service of documents is unknown in some Member States, up to the point that there is a general lack of understanding of what “direct service” means (as the table below shows).

DIRECT MEMBER STATE REGULATION COMMENTS SERVICE ADMITTED Austria

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A similar provision is not found in our internal procedural law. In our internal procedural law the standard way to serve a document is via a judicial officer. The sender gives the document to the judicial officer, who in turn issues a copy to the addressee (Art. 32 Code of Civil Belgium X Procedure). In an international context, Belgium is bound by the Hague Service Convention of 1965. This Convention contains in its Article 10.c) a similar rule on direct service as that of the Regulation. Belgium did not object to this rule either.

Art. 611, Para. 4 Civil Procedure Code (Amended, SG No. 50/2008) The receiving agency shall effect the service through a court official, by post, or by a Bulgaria particular form requested by the

party. Where there is no court

institution in the nucleated settlement where the service must be effected, service may be effected care of the municipality or mayoralty.

Cyprus X

Czech Republic

Estonia

Finland X

Article 667 Code de procédure civile. The service must be made by an envelope or a cover, either France X by post or by direct personal delivery to the addressee against annotation or receipt.

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In case of notification between advocates: Article 671 Code de procédure civile. The provisions of Sections I and II will not apply to notification of process between advocates. The same will be done by service (through a bailiff) or direct notification.

sec. 174 Service of documents against receipt:

(1) A document may be served against receipt to a barrister, a notary, a bailiff, a tax counselor or another person being member of a professional group hypothesising extraordinary trustworthiness, or to Yes, where service of an administrative authority. (2) A documents ex officio against document may be served to the receipt (sec. 174 para. 2) or addressees mentioned in para. 1 party-to-party service between by fax machine. The transmission barristers against receipt (sec. shall be introduced by the 195) apply. indication “service of documents Germany X against receipt” and the sending authority, name and address of addressee and name of transmitting clerk of the court shall be transparent. (3) … (4) …

sec. 195 Service of documents Under conditions from barrister to barrister

(1) If both parties are represented by barristers, one barrister may hand over the document to the other barrister against receipt. (…) sec. 174 para. 2 sentence 1 and para. 3 sentence 1, 3 apply.(2) …

Greece

Hungary

Ireland X

X So far, a lawyer can transmit an act directly by ordinary mail only

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Italy if he/she is registered in a specific list, under the condition that an official note be taken of all the acts and documents notified. On judge’s authorization a lawyer can notify through fax. Still a reform is on the way.

Article 56 of the Civil Procedure Law: (4) Party with an allowance Latvia X of a judge could receive judicial But oppose documents to deliver them to the addressee in the case.

Lithuania

Luxembourg is not opposed to the possibility provided for by Article 15 regarding Member States that allow reciprocity, on the understanding that a bailiff in the requested State is not responsible Luxembourg X Under conditions for the proper form and content of the document sent to him direct by the person concerned but responsible solely for the service formalities and procedures that he applies in the requested State.

Service of documents is effected by court officers or by registered mail. The interested party files the pleading or other documents Malta X in the court registry and pays the applicable fees, and arrangements for service are then made by the registry.

Netherlands X

Austria

Poland

Article 245.º of the Civil Procedure In some cases citation is X Code admitted between the judicial Portugal representatives of the parties Citation promoted by the legal (their attorneys or solicitors) or

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representative by their forensic employees indicated by them (that must be 1. The citation made pursuant to identified by a card issued by the paragraph 3 of Article 233 follows Attorneys or the Solicitors the scheme of Article 239. º, with Chamber). The judicial the necessary adaptations. 2 - The representative must in the initial legal representative should, in the petition or in a special petition application (initial petition), state demonstrate the intention of the purpose of promoting the promoting itself the citation of the service by itself, by another legal other judicial representative. The representative, by a solicitor or by person responsible for the a person identified pursuant to citation is identified in the paragraph 4 of Article 161, and petition, although the judicial may also require the assumption of representative of the author is such a service at any later time, if responsible for the misconduct of any other form of service has been the person in charge of the frustrated. 3. The person in charge citation, without prejudice of of the investigation by the agent is disciplinary and criminal claims. identified in the petition or Whenever the citation is not application, with express mention concluded in thirty days, the that he has been advised of his judicial representative should duties. give knowledge of the fact and the citation will be held according to the general provisions of Article 229.º-A of the Civil procedural law (article 245 of the Procedure Code Civil Procedure Code). Notification between the legal Direct party-to-party service of representative of the parties documents is applicable 1 - In cases in which the parties between legal representatives of have designated legal both parties after the answer to representatives, all pleadings and the complaint or petition is autonomous applications that are served to the defendant (article submitted after the notification to 229-A of the Civil Procedure the author of the objection of the Code) This notifications can be defendant will be notified by the performed by all admissible legal representative of the means for the practice of submitter to the legal procedural acts, including representative of the counterparty, electronic transmission of data in its place of business, under whenever both judicial Article 260-A. representatives have delivered 2 - The legal representative that any document using the system has only assumed the sponsorship CITIUS or so declare (see article of the cause during the 21-B of Portaria n.º 114/2008, 6 proceedings shall indicate his de Fevereiro de 2008, above) place of business and, if

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appropriate, his e-mail to the legal representative of the counterparty.

But oppose on grounds of legal certainty

According to Article 86 ^ 1 of the Code of Civil Procedure, introduced by Law no.202/2010 on measures to accelerate the settlement of lawsuits, published in the Official Gazette, Part I, no. 714 of 26 October 2010, "After notification of the court, if the parties have a lawyer or a legal adviser, applications, responses or other acts can be communicated directly between them. In this Romania X But oppose case, the addressee will certify the receipt of the document and will record immediately the day of receipt on the copy itself to be filed with the court, under the sanction of not taking in account. Proof of communication of acts can be done also by any other document filed in the case file which certifies, by signature, the receipt of each procedural act that has been served."

Slovenia

Slovakia

Spain

Sweden is not opposed to any person interested in a judicial proceeding having the freedom to effect service of judicial Sweden X documents directly through judicial officers, officials or other competent persons. However, the Swedish authorities are not required to provide

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assistance in such cases.

England and Northern Ireland are opposed to United Kingdom the possibility of direct service provided for by Article 15(1).

4.13.2.2 Conclusions

 The lack of knowledge of this mode of service of documents is the reason why some Member States have opposed its admittance and, wherever it is admitted different conditions are required.

 These important differences make impossible to establish common procedural rules in this field, mainly taking into account that success of this mode of service is supported on the professionals authorized to effect the service (such as huissiers de justice). Their wide knowledge about the procedure to follow and the applicable rules has a direct impact on the effectiveness, speed and certainty of the service provided. The introduction of common national rules admitting the direct service of documents would require, as a previous condition, the training of the professionals involved.

4.13.3 Electronic service

4.13.3.1 Comparative table At the present time the absence of technical uniform condition around Europe make the risks of the electronic transmission of documents more important than the positive consequences of its implementation, since rights of the sender and of the addressee can not be adequately protected. Electronic transmission of documents is not always admitted in Member States and, when it is, it is subject to different validity requirements:

MEMBER E- REGULATION COMMENTS STATE TRANSMISSI ON

Austria X Solely by way of certified mail Belgium No later than 01-01-2013 Bulgaria X Art. 611, Para. 4 Civil Procedure Code (Amended, SG in practice the electronic No. 50/2008) The receiving agency shall effect the transmission is not used

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service through a court official, by post, or by a because of the uncertainty of particular form requested by the party. Where there is the acknowledgment of receipt no court institution in the nucleated settlement where the service must be effected, service may be effected care of the municipality or mayoralty. Article 42. (1) CPC Communications shall be served by a court official, by post or through a courier service by means of a registered item with an addressee's acknowledgment of receipt. Where there is no court institution in the place of service, service may be effected care of the municipality or the mayoralty.

Czech X According to article 47 of the CPC (Act no 99/1963 Coll.) Republic the delivery can be effectuated through public data network either via so called data boxes or via email. Data box is a special box for electronic data, which is regulated in Act no 300/2008 Coll. , on electronic acts and automatic conversion of documents. There are certain subjects (such are all public authorities) who are obliged to have data box. The delivery into data box is understood to be delivery in own hands of the addressee and the document is delivered in the moment when the addressee logged into the data box or in case the addressee has not done so within 10 day period from the date when the document was sent into the data box, The email address can be used only shall the participant ask the court to use this way of transmission. The addressee has to have so called guaranteed electronic signature and confirm the delivery within 3 day period. In case the delivery is not confirmed the delivery is considered to be ineffective. I.2 If so, please provide an English translation of the procedural rules that govern electronic transmission: Article 46 Section (2) (2) Through the public data network the court can deliver to electronic address the addressee has communicated to the court shall the addressee consented with this way of delivery and shall the addressee communicated to the court accredited provider of certification services, who issued his or her qualified certificate and leads his or her records, or submitted to the court his or her valid qualified certificate. Article 47 of the CPC Delivery through public data network

1. Delivery through public data network is regulated in special legal act.1 2. When the court delivers according to art. 46 section 2 calls to the addressee to confirm the delivery within three days from sending the document by data message obtaining his or her guaranteed (certified) electronic signature. 3. - Delivery through public data

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network on the electronic address is ineffective, if the document sent on the electronic address has returned as undeliverable or if the addressee has not confirm its acceptance within 3 days from sending by data message according to section 2.

Estonia X CCP (Code of Civil Procedure) § 314. Service of procedural documents by unregistered letter, fax or electronic means (2) A procedural document may be served by electronic means. On electronic transmission, the document is sent or notice of the availability of the document is given to general e-mail address of the recipient or to the e-mail address of the recipient which has been declared to the court, or via an electronic system. Electronic documents transmitted to or prepared by the court shall be forwarded to the participants in the proceeding by electronic mail except in the case where electronic transmission is presumably impossible or a participant in the proceeding is presumably unable to view the content of the document or print it out. A document may be sent to an attorney-in-law, notary public, bailiff, insolvency administrator and a state or municipality authority in other way than electronically only if there is an important reason for that. (3) In case of electronic transmission the document may be transmitted without electronic signature; it is also allowed to transmit a copy of the document. If the document is originally signed on paper, then a scanned copy of it will be transmitted to the recipient or the document will be made available via the court’s electronic system. If possible, the document is transmitted with an electronic signature, if so requested by the participant of the proceedings. (4) Civil servant who has transmitted a document by ordinary mail, fax or by electronic means, must note in the file, to whom and when has the document been sent to be transmitted, unless the transmission is automatically registered in the E-file system. (5) If a document is transmitted by ordinary mail, fax or electronic means, it is deemed to be received, if the recipient sends to the court a return receipt either by mail, fax or electronically or opens the document fail in the E-file system, in which case the E-file system registers the return receipt automatically. In the return receipt one must note the date of the reception and the receipt must be signed by the recipient or his agent. An electronic return receipt must be digitally signed or transmitted by another similar secure method that enables to identify the sender and the time of transmission, unless the court has in the same proceedings already transmitted documents to that e-

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mail address or if the recipient has himself given the court his e-mail address. (6) If a document is transmitted by ordinary mail, fax or electronic means, the recipient must send the return receipt stipulated in paragraph 5 immediately. If he does not do so, the participant or his agent may be fined. (7) With the recipient’s permission the court may transmit the document by sending the letter to the recipient’s address without getting the return receipt stipulated in paragraph 5. With the recipient’s permission the court may transmit the document by fax or electronic means with the automatic return receipt.

Germany X sec. 174 Service of documents against receipt Yes, where service of (1) A document may be served against receipt to a documents ex officio against barrister, a notary, a bailiff, a tax counsellor or another receipt (sec. 174 para. 3) or person being member of a professional group party-to-party service hypothesising extraordinary trustworthiness, or to an between barristers against administrative authority. receipt (sec. 195) apply. (2) … (3) An electronic document may be served to the addressees mentioned in par. 1. The said applies to a party with the party’s explicit permission. The document must have an electronic signature and must be secured against unlawful notice. Transmission may be executed by De-Mail-Service under sec. 1 of De-Mail-Act. (4) … sec. 195 Service of documents from barrister to barrister (1) If both parties are represented by barristers, one barrister may hand over the document to the other barrister against receipt. (…) sec. 174 para. 2 sentence 1 and para. 3. - sentence 1, 3 apply. (2) …

Greece Article 122 para. 5 of the CCP provides that "Judicial documents may be served electronically, provided that they bear an advanced electronic signature. Such a service is considered effected if the addressee returns to the sender an electronic receipt, bearing an advanced electronic signature, which will be valid as service report." However according to art. 72 of the above law the provision of art. 122.5 will come into force after a Presidential Decree issued at the proposal of the Minister of Justice, Transparency and Human Rights, where the details of the specific requirements will be defined. So far this Presidential Decree has not been published yet. Spain X

France X Yes, at so-called ordinary service of documents an authority may send a document by electronic

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means (DL § 17 para.2). Even at so-called simplified service and authority may deliver a document by electronic means (See Proposition 2009/10:237 p. 242: “§ 23 the Act on service of documents is independent of any specific technology and the document and the following message may be delivered otherwise than by Mail).

Ireland Generally no, however in individual instances the court may permit electronic transmission as a means of substituted service. Italy X Art. 149 a) of the Code of Civil Procedure (introduced by act n. 24/2010): “Where not explicitly prohibited by law, formal notification can be effected by electronic mail, even after creation of an electronic copy of the paper document. The court officer will send the electronic copy of the act, authenticated by electronic signature, to the certified e- mailbox of the addressee, as recorded in public lists. The notification is effective when the provider makes the document or the act available in the addressee’s certified e-mailbox. The notification is recorded by the court officer on a separate electronic document, with its electronic signature, joined to the act by way of computer technologies as identified by decree of the ministry of justice. Instead of the place of delivery, the e-mail address is specified, together with all other information required by art. 148, first comma. Sending and delivery receipts are joined to the original document or to its electronic copy, according to the legislation governing the signing, transmission and reception of documents by computer or remote communication technologies. Once notification is effected, the court officer returns the document served to the applicant, also by electronic mail, together with the registry note and the receipts mentioned in the preceding subparagraph”. P.S. On 21 February 2011 the Ministry of Justice approved Regulation n. 44, concerning new rules on the introduction of new technologies in the civil process. According to this regulation, the electronic service of documents must be effected through certified electronic mail: for this purpose, the Ministry of Justice will adopt a

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general service of certified e-mail, with a list of electronic addresses of legal professionals entered in official registers, authorized external persons or private users. Regulation n. 44/2011 governs, inter alia, service of electronic acts and documents, distinguishing among electronic simple service (section 16), electronic formal notification (section 17) and direct service between lawyers (section 18).

Cyprus X

Latvia X Judicial documents are delivered by using electronic postal, if a party notifies the court, that he/she agrees on the communication with court by using electronic postal. In that case judicial documents are transmitted to the electronic postal notified by the party. If the court sees that, there exist technical obstacles to deliver judicial documents by using electronic postal, they are delivered by using other means provided in this Article. Lithuania Courts submit documents by electronic means of It will be in force 01-01-2013 communication to attorneys at law, attorneys at law assistants, bailiffs, bailiffs' assistants, notaries, state and municipal enterprises, institutions and organizations, financial institutions, insurance companies. In addition, electronic documents are served to persons who are obliged by law to transmit documents by electronic means. The documents may be submitted to other persons with their consent and in accordance with the procedural norms of this Code and if they have specified the necessary contact details. Luxembou X rg

Hungary

Malta

Netherlan Under discussion ds

Austria

Poland X Electronic transmission of judicial documents is in fact permitted in the Polish Code Civil Procedure (Kodeks poste■powania cywilnego, Act dated November 17th 1964, Journal of Laws, Dz.U. dated December 1st 1964, ╥KPC╙) in respect to the electronic dunning procedure, which is regulated in Art. 50528 ╨ 50537 KPC. In this procedure the plaintiff, in order for his judicial writs to be legally effective, has to transmit them to court be means of electronic communication. The defendant is not obligated to use the same methods of electronic transmission; however he is entitled to do

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so. The service of documents to the plaintiff takes place by electronic transmission with the use of an electronic system designed for the purposes of the electronic dunning procedure (electronic service) ╨ Art. 1311 ñ 1 KPC. The electronic service is deemed effective in the date specified on the electronic confirmation of delivery and in case of a lack of such service confirmation the electronic service is deemed effective after the lapse of 14 days as of from the day of the placement of data into the electronic system ╨ Art. 1311 ñ 2 KPC. However in order to make use of the electronic dunning procedure one is required to be registered by the competent authorities and also obtain a secure electronic signature. Portugal X Electronic transmission is admitted both in citation and notification formalities. In the first case it is admissible only in relation to civil executive actions to the National Treasure and to the Social Security Services relation to (Portaria n. º 331- A/2009 of 30th March). In the second case, the judicial representatives that use the electronic system of data (CITIUS) and that manifest that intention are notified exclusively by electronic means, without the use of post or fax (Portaria n.º 114/2008, 6 de Fevereiro de 2008)

Romania X According to Article 82 paragraph 1 of the Code of Civil Procedure, as amended by Law no.202/2010 on certain measures to accelerate settlement of lawsuits, published in the Official Gazette, Part I, no. 714 of 26 October 2010, "Any application to the courts must be made in writing and indicate the court, the name and surname, domicile or residence of the parties or, as the case may be, their name and registered address, the name and surname, domicile or residence of their representatives, if appropriate, the object of the application and the signature. Likewise, the application shall include, where applicable, also the data of identification of the means of communication used by the parties, such as telephone number, fax number, e-mail address or the like. " According to Article 86 ^ 2 of the Code of Civil Procedure, introduced by Law no.202/2010 on certain

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measures to accelerate settlement of lawsuits, "In order to obtain data and information necessary for the procedure of communication of summons, of other acts of procedure, and for fulfilling any powers related to their own jurisdictional activity, the courts have the right of direct access to electronic databases and other information systems held by public authorities and institutions. The authorities and institutions mentioned in paragraph 1 are required to take appropriate action to ensure direct access of courts to electronic databases and information systems provided in the same paragraph." According to Article 132 ^ 1 paragraph (2) of the Code of Civil Procedure, introduced by Law no.202/2010, "Judges will have the summons and communication procedures verified for each hearing. If necessary, the court shall order measures to be taken in order to resume these procedures. Besides these measures, the court can order that the parties be informed by telephone, telegraph, facsimile, electronic mail or by any other means of communication which ensure, as the case may be, transmission of the text of the act subject to communication or notice for presentation at the hearing, as well as acknowledgment of receipt of the act, respectively of the notice, if the parties have indicated to the court the corresponding data for this purpose. If information was made by telephone, the clerk will prepare a report that will show the means used for information and its object. " According to Article 54 subparagraph d1 of the Rules of Procedure of Courts approved by Resolution no. 387/2005 of the Plenum of the Supreme Council of Magistracy, as amended by Resolution no. 504 of 21 July 2011 of the Plenum of the Supreme Council of Magistracy, published in Official Gazette of Romania, Part I, no.565 of 9 August 2011, the sitting clerk "carries out the procedure related to summons and information of the parties, as well as communication of acts, by telephone, telegraph, electronic mail, facsimile or other means provided by law and prepares the report concerning the means of information or communication and its object, which is thereafter attached to the file." Article no. 93 of the same Rules makes a distinction in terms of means of transmission, between acts of summons and other applications. Thus, paragraph 1 of the mentioned article restricts the possibilities of submission of acts of referral of the court through correspondence, providing in this respect postal services, courier or facsimile ("Acts instituting the proceedings, delivered in person or by representative, arrived by mail, courier or facsimile, shall be submitted to the registry, where, on the same day, once established the object of the case, they receive, except as provided

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by law, ECRIS application number and certified date). With regard to correspondence relating to cases pending before the courts, paragraph no. 3 of the same article provides for the possibility of transmission by post, courier, facsimile, e-mail or other means of communication: "The other applications and acts of any kind, including administrative correspondence, arrived through post, courier, facsimile, e-mail or by any other means of communication, shall be recorded in the general register of case files, in the in/out register of administrative correspondence or in the register of petitions and shall be presented, if appropriate, to the president of the court or when the application concerns a case pending before the court, such shall be presented to the panel to whom the case was assigned. If a request or act concerns a case file pending before the court on the day of submission, after registration, the registrar shall submit it directly to the sitting clerk." The Rules do not contain express provisions related to the signing of applications transmitted by correspondence, but it is supplemented by relevant statutory provisions. With regard to electronic correspondence the relevant provisions are those of Article 5 of Law no. 455/2001 on electronic signature, published in the Official Gazette, Part I, no.429 of 31 July 200, stipulating that a document in electronic form that incorporates an electronic signature or has an electronic signature attached to or logically associated with it, based on a qualified certificate not suspended or not revoked at that time, and generated using a secure- signature-creation device is assimilated, in as much as its requirements and effects are concerned, to a document under private signature. The courts may inform the petitioners on the requirement provided by law for electronic signature certification, but according to the regulatory provisions, they must ensure the conditions needed for their receipt, printing and attachment to the case file, further the judge hearing the case analysing whether the application meets the formal requirements provided by civil procedure. Pursuant to Article 94 paragraph (2) of the same Rules, "Correspondence will be sent by mail, procedural agent or courier, by facsimile or e-mail or through any other means of communication which can be identified and monitored and which can ensure the official character thereof.”

Slovenia X

Slovakia X § 45 Act Nr. 99/1963 Coll. Civil procedure Code (1) Documents shall be delivered by the court or by post. The court may deliver the document through a judicial executor, the relevant municipal or police authority and,

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in cases provided by special regulations, also through the Ministry of Justice. (2)... (3) ... (4) Documents may be served also via electronic means, if a party or its representative asks for and notifies the court the address for the transmission of documents. ... (5) Delivery under paragraph 4 is excluded in cases of delivery of judgments and documents, which are to be served personally. (6) ... § 132 Ministerial Regulation The acceptance of documents served by means of electronic communication certified by an electronic signature is governed by special Acts (Act Nr. 215/2002 Coll. on electronic signature and other regulations issued by the National Security Authority). Such documents are transmitted to the registry for further procedure according to § 129. (remark: § 129 defines the opening hours of the registry and the use of the “application” – an electronic system of file evidence) § 132a Ministerial Regulation (1) The acceptance of documents served by means of electronic communication without being certified by an electronic signature is governed by special Acts (Act Nr. 215/2002 Coll. on electronic signature and other regulations issued by the National Security Authority). Such documents are transmitted to the registry for further procedure according to § 129. If such submission is to be supplemented in the defined period, and no supplement is submitted within the time limit, the submission shall be disregarded and this fact is to be recorded in the application (the electronic evidence of the files). (2) Electronic addresses, where district and regional courts accept submissions under paragraph 1 are made public on the webpage of the Ministry of justice. These addresses are to be included in the documents served to parties and their representatives. With a previous consent of the judge, the electronic address of the judge may be included in the documents served to the parties; the same applies to the address of a judicial clerk.

Finland X

Sweden X Yes, AT so-called ordinary service of documents an authority may send a document by electronic means (DL § 17 para.2). Even at so-called simplified service an authority may deliver a document by electronic means (See Proposition 2009/10:237 p. 242: “§ 23 the Act on service of documents is independent of any specific technology

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and the document and the following message may be delivered otherwise than by Mail). United X New program: Money Claim Kingdom Online (England and Wales).

Disparities between Member States are evident. The non admittance by Lithuania or Belgium contrast with the advanced rules of some Member States as the United Kingdom, where a complete online procedure has been designed to claim for money (Money Claim Online Act: is run by the UK Court Service, and allows to file a claim in the Small Claims Court over the internet, previous creation of a money claim online user account to certify security and authenticity).

This lack of uniformity about the admission of electronic means of transmission, as well as the differences of the conditions required by its admission at a national level makes the implementation of this method difficult.

4.13.3.2 Requirements for the implementation of the electronic transmission

Implementation of the electronic service of documents seems to be subject to some previous requirements in the internal legislation of the Member States:

a) Notice of consent A party must give consent in a specific proceeding to receive documents at an electronic legal service address by formal notice of that address. That is the case of Estonia, Germay, Latvia Lithuania, Slovakia or Spain. It should be clarified whether an email address in letterhead or correspondence constitutes consent to receive electronic service or not, and whether it is necessary a specific and formal consent for each procedure or the possibility of withdrawal of consent to receive electronic service.

However, in some Member States it has been established an obligation to communicate using only electronic means if the parties are consistent with legal persons or groups of individuals by reason of economic or technical capacity, professional dedication or otherwise credited are guaranteed access and availability of technological means accurate. For example: (1)In the Czech Republic authorities are obliged to have data box. The delivery into data box is understood to be delivered to the addressee and the document is delivered in the moment when the addressee logged into the data box or in case the addressee

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has not done so within 10 day period from the date when the document was sent into the data box. (2)In Estonia, a document may be sent to an attorney-in-law, notary public, bailiff, insolvency administrator and a state or municipality authority in other way than electronically only if there is an important reason for that.

Regarding the public sector, Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framewok for electronic signatures allows Member States to make use of electronic signatures in the public sector subject to possible additional requirements. However, following the Study on Legal and Market Aspects of Electronic Signatures there are divergences in both the interpretation and implementation of this provision. It seems clear that in many countries the use of electronic signature in the public sector is subject to additional security requirements. Communicating electronically with public authorities is in many European countries possible only through the use of signatures based on Qualified Certificates issued by an accredited CSP. b) Electronic Legal Service Address

This address may be either an account at an electronic legal service provider or an e-mail address. c) Proof of Service

Where service is affected electronically, it shall be ensured that there is a proof of service available sufficient to establish that the document came to the attention of the intended recipient. For this purpose, it would be necessary to determine that the document was received at the recipient party’s electronic legal service address. In the paper-based world, proof of service depends on the means of service. Proof of service of an electronic document can rely on the e- service system itself. The e-service system could automatically log when a party submitted a document for service and when it was opened. Courts or parties wanting to know whether and when service occurred could simply check the e-service system logs. For example, in the Czech Republic, according to article 47 of the CPC (Act no 99/1963 Coll.) the delivery can be effectuated through public data network either via so called data boxes or via email. Data box is a special box for electronic data, which is regulated in Act no 300/2008 Coll. on electronic acts and automatic conversion of documents. The delivery into data box is understood to be delivery in own hands of the addressee and the document is delivered in the moment when the addressee logged into the data box or in case the addressee has not done so within 10 day period from the date when the document was sent into the data box. But such a rule cannot be generalized, not because of legal differences between Member States, but because of technical divergences. In the absence of that kind of rule, it may also be proved by:

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- An email delivery or “read” receipt; - Confirmation from an electronic legal service provider that the document was delivered to the party’s account at that service provider; - Verbal confirmation of receipt by the addressee; - Written confirmation by e-mail of receipt from the recipient party ; - Other means sufficient to satisfy that the document(s) came to the attention of the intended recipient. But these notices of receipt are not really reliable because they depend on the active cooperation of the addressee, who normally avoids to be served in due form

e) Date and Time of Service

With paper documents, when service is complete depends upon the method chosen. For personal service or use of a delivery vendor, service is complete when the document is delivered to the party. If the document is mailed, it is considered served when placed in the mail. Use of the time of mailing, as opposed to the time of delivery, is based on the presumed reliability of the mail system. For e-service, the completion of service could be when it is delivered to the party being served. However, because of the virtually instantaneous delivery and availability of the document, and the independence and relative reliability of the e-service system, service could be deemed complete upon submission of the document to the e-service system. In any case, application of this approach is complicated when there are non-participants that must be served by traditional means. g) Validation or signature by the addressee

In the paper world, the document with the original signature is filed by the addressee. Part of the clerk’s review of a document submitted for filing is to check for a signature. The check is cursory (only as to whether there is a signature). If it is not signed, the document is returned. If there is a signature, the clerk assumes the document was signed by the person whose signature appears. The clerk does not authenticate the signature, relying instead on the parties to challenge the veracity of the signature. Although there is the potential for someone to file a document with a forged signature, it is an extraordinarily rare occurrence.

With electronically filed documents, there is no piece of paper with a signature on it. Several options are available to comply with a signature requirement. The choice of approach should weigh the need for verification against the realistic risk of abuse. It remains to be seen whether expanded use of e-filing increases the potential for someone falsely filing electronic documents in a case.

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4.13.3.3 Conclusions

 As said in the cross border service of documents, the establishment of common national rules admitting this mode of service of documents would require the previous modernization of the institutions, bodies and person involved on the service of documents at European level.

 Service of documents by email should be offered on an optional basis so that parties and their representatives have a choice about whether to utilize this form of service. This is in contrast to ordinary service

 At national level, and taking into account technological limitations, it seems necessary that the acceptance of the electronic transmission of documents is preceded by the introduction of a new procedural rule admitting the electronic means attested by an automatic confirmation of delivery, provided that the addressee has expressly accepted this method of service in advance.

4.14 COMPARISON OF NATIONAL RULES ON NATIONAL SERVICE OF DOCUMENTS

4.14.1 Moment in which the national service of documents is deemed to have been served 4.14.1.1 Comparative table

As shown in the table below, there are no uniform solutions in all Member States:

MEMBER Moment in which the national service of documents is deemed to have been STATE served Austria Basically, physical service of documents to addressee (§ 13 SDA) and substitute service (§ 16 SDA) is deemed to have been served on the date of reception appearing on the proof of delivery (Confirmation of delivery certificate, return receipt). Service of delivery shall be documented on the proof of delivery by the person serving delivery (§ 22 SDA). The person accepting shall confirm service by his signature on the proof of the service document, adding the date and, in case he is not addressee himself, the kind of his relationship to the latter one. If the person accepting the service refuses confirmation, the person effecting service shall note this fact on the receipt of service document, including the date when it took place and, if possible, how the person who accepted the item is related to the addressee. The proof of service is to be sent to the authority immediately. In case errors occur during the service procedure, service is still considered to have been made as soon as the document has actually been received by the addressee

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(§ 7 SDA). In case of absence or unknown addressees domicile (place of delivery) see below. e by the courts is governed by §§ 89a ff of the COA. According to § 89d COA ocuments is deemed to have been served on the working day (except Saturdays) eception (when the e-mail reaches the recipients server). Belgium Notification: Art. 53bis states that for the addressee, and unless otherwise provided by law, notice by judicial letter or by registered letter with proof of receipt is deemed to have taken place on the day following the day when the document is handed over to the addressee at his domicile, habitual residence or chosen domicile. Notice by registered or normal letter is deemed to have taken place three days after the letter has been posted, except if he addressee proves the opposite. For the sender, the day on which the letter was sent, marks the day when the documents are deemed to be notified. Service: Service (i.e. by a bailiff or gerechtsdeurwaarder/huissier) in Belgium is deemed to have taken place when the documents are handed over to the addressee or, if not possible, are delivered at his domicile, his habitual residence or at any of the other persons or places described in the articles 33, 34, 35, 38, 39 en 42bis. This is relevant for both addressee and sender. Art. 40: service to a person who is not habitually resident nor domiciled in Belgium, or of whom the address is unknown, is deemed to have taken place on the day of postage, or on the day of delivery to the prosecutor (see below). Case law has interpreted this provision to protect the rights of the addressee. Bulgaria The service of documents shall be deemed to have been served on the date of the service. (Argument of Art. 46, Para. 4 and Art. 259, Para. 1 CPC) In the case where the respondent cannot be found at the address named under the case and a person willing to accept the communication cannot be found, the communication shall be presumed served upon expiry of the time limit for claiming the said communication from the office of the court or the municipality (Art. 47, Para. 5 CPC) Czech It depends on the way of delivery: Republic Documents served to the own hands of the addressee are deemed to be served: On the day the addressee accepted the document personally – according to the signature on the proof of delivery The tenth day following the day when the document was deposited in an appropriate place according to law (typically post office or court office). Documents served “normally” (not in the own hands of the addressee): On the day the addressee accepted the document personally - according to the signature on the proof of delivery On the day the delivering authority deposited the document in the post box of the addressee If it is not possible to deposit the document in the post box, then the tenth day following the publication on the official board of the court.

Estonia CCP § 307(1): As a general rule, document is deemed to have been served when the document or its certified copy has been given to the receiver, unless otherwise provided by law. For example, CCP § 318 allows the document to be served for the representative of the person. Germany When the service of documents is executed, irrespective of addressee’s attention. This date appears in the affidavit of service, as prescribed in sec. 182 para. 2 no. 7. Exceptions:

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a) service of documents by public notification (sec. 185 to 188): 1 month after public notification; period subject to court’s discretion (sec. 188) b) as far as it is intended to comply with a time limit by service of documents, the deadline is met, if (1) the consigner’s request meets the deadline AND (2) the service of document is executed soon, that means without any delay that is induced by the consigner (sec. 167) Greece According to article 144 CCP, service of documents is deemed to have been served on the date following the date of reception appearing on the records or on the certificate of service. Spain According to article 151, service of documents shall be deemed to have been served on the date following the date of reception appearing on the records or on the certificate of reception, where such notices have been served through the means and in keeping with the requirements set forth in paragraph 1, Article 162 herein. Where the delivery of any document or commission that should be attached to the notice may take place subsequent to service of the notice, notice shall be construed to have been served upon certification of the document’s delivery, as long as the effects arising from the notice are linked to such document104 France According to art. 653 CCP, the principle is that the date of a service of a process through a bailiff is that of the day where it has been served on the person, at his domicile or residence. In case of notification by post the date will be, with regard to the sender, the date of emission, or with respect to the person to whom it is directed, the date of reception (art. 668). Ireland District Court: - Where Summons is served personally, deemed to be served at that time. Proven by oral evidence in Court, or by declaration, or both. Where served by registered post, deemed to be served at the time the document for service would be delivered in the ordinary course of postage.

Circuit Court: - Service of Civil Bill may be effected personally and by post, subject to endorsement on the original Civil Bill of the date, time and manner of service. In both instances, service must be attested by statutory declaration and service by post is deemed to be served at the time the document for service would be delivered in the ordinary course of postage while personal service is deemed effective at the time of actual service.

High Court: - Summons is deemed to be served at time of personal service, affidavit of service from the person serving such summons is required. Court may declare, where personal service was not effected, that the service actually effected is sufficient and is deemed to have been served from the time of otherwise ineffective service. Italy Simple service and formal notification can be performed: 1) directly in the hands of the addressee, who signs a receipt form; 2) by post; 3) by electronic transmission (fax or e-mail). Documents are deemed to be served at the date resulting from the record of the delivery handed by the bailiff over to the addressee or, on case of notification by post, at the date resulting from the receipt for the registered letter which is joined to the officer’s record. In case of service by fax or e-mail, the record consists of a separate electronic document, with the electronic signature, jointly to the act, according to the rules provided for by the Ministry of Justice. The notification is effective when the provider makes the document or the act available in the addressee’s certified e-mailbox. Service abroad is effected through diplomatic channels or, where applicable, through the system established by the 1965 Hague Convention or by other bilateral or

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multilateral conventions.

Cyprus

Latvia Pursuant to Section 56.1 of the Latvian Civil Procedure Law, it is considered that the person has been informed about the time and place of a court hearing or procedural action, or contents of the relevant document and that the summons has been served: en an addressee or other person has accepted such documents as provided in Section ce upon the addressee), Section 56 (7) (service upon the addressee by a messenger icipant in the matter) or Section 56 (8) (service upon the adult family member residing ressee), On date when the person has refused to accept the summons (Section 57), On the seventh day from sending of the documents if sent by mail, On the third day from sending of the documents if sent by e-mail. Lithuania

Luxembourg Based on articles102(3) and 155(3) NCPC, documents shall be deemed to have been served on the day of delivery to the recipient. Hungary Documents are normally delivered through the post. The document is deemed to have been served: (a) if the postman hands over the document to the addressee (or any other person authorized to take the document) in person, (b) the addressee refuses to take the document, (c) five days elapse after the postman’s second attempt to serve the document and the addressee did not contact the local post office to get the document (note that there is a 5 days long period between the two attempts during which the addressee may get the document at the local post office).

If the postman succeeds in handing over the official document, the addressee is required to acknowledge the receipt by signing the return receipt. If the addressee refuses to take the over the document (that is the addressee is present at the address indicated on the mail but rejects to take it over), the official document is to be regarded as having been properly served on the addressee. In this case, the postal service provider sends back the official document to the sender with the indication "receipt was refused". If the postman could not hand over the official document to the addressee or to a person authorised to receive it, he/she leaves a notice in the addressee’s mailbox, informing the addressee about the circumstance that the accomplishment of service was attempted, the document is available at the local post office and the postal service provider will attempt to serve the document on the 5th working day after the unsuccessful service. If the addressee, within the 5 days deadline, appears at the post office indicated on the above notice, he may take over the official document provided he/she proves his/her identity.

5 days after the first unsuccessful service, the postman tries to serve the document on the addressee once more. The above are also applicable to the second attempt with the difference that if the second attempt to serve the document is unsuccessful, on the 5th day after the second unsuccessful attempt the official document is to be regarded as having been properly served on the addressee (the notice left in the addressee’s mail-box informs the addressee about this circumstance). Again, the addressee may take over the official document at the post office indicated on the notice provided he/she proves his/her identity. If the addressee fails to take over the document within the 5 days deadline, the postal service provider returns the official

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document to the sender with the indication "it was not searched for ". In this case the official document is to be regarded as having been legally served on the addressee. However, this presumption may be rebutted. Malta Service of documents is deemed to have been effected on the date shown on the certificate of service drawn up by the executive officer of the court in terms of art. 188 Netherlands In the proceedings commenced by a writ the writ is deemed to have been served at the moment the writ is actually served (the date mentioned by the bayliff on in the writ). This date is important because from this moment the case is officially pending. (Article 125 par. 1 CCP).This is important in case f.i. of lis pendens. This date does not have to be the same as the date the writ is served on the other party. Poland Accorgind to the article 139 CCP, document sent by public or different post operator should be fold in this operator post, and serves in the different way - at the office of the proper commune, placing the information about this in the door of the addressee flat or in the mailbox, with the indication where and when the document was left, and with the instruction, that it should be taken back in deadline of seven days since the day of the location of the information. In the case of the ineffective outflow of this deadline, the action on information should be repeated. If the addressee refuses the acceptation of the document, the delivery considers for accomplished. In such case deliverer returns document to the court with the annotation about the refusal. The document turned on the result of impossibilities of the delivery is put in the files of matter with the result of the delivery. Portugal According to articles 236.º and 238.º P.C.P.C. the defendant’s post notification is deemed to have been served when the certificate of reception is signed. In case of address convention (articles 237.º-A, n.º 5 and 238.º, 2 P.C.P.C.), if the priority forms of notification fail, the defendant’s notification is deemed to have been served on the date certified by the distributor of postal service or, if this distributor leaves acknowledgment receipt, on the 8th day following this date. The other notifications (articles 254.º, n.º 3 and 255.º, n.º 1 P. C.P.C.) are presumed to be made on the 3rd day following the registered post (if it is a business day), or on the following business day if it isn’t. If the notification is electronic it is presumed to be made on the day of issue. Romania The national service of documents is deemed to have been served in the following cases: when the addressee receives the documents, directly or through a registered letter; when a member of the family or a cohabitant of the addressee receives the documents, if he is not present at the domicile; when the administrator or the doorman of the building where the addressee lives receives the documents, if such person lives in a hotel or in a building having multiple apartments and did not indicate the exact apartment or chamber; when the document is displayed on the door of the addressee’s domicile or on the door of the main building, if the persons indicated above refuses the reception of the documents; cument is displayed at the headquarters of the Court, if the domicile of the addressee identified. Slovenia According to the provisions of the Civil Procedure Act the service of documents shall be deemed to have been served on the date the document has been delivered to the addressee. The date of the reception derives from the certificate of the reception, signed and dated by the addressee upon delivery. In cases of addressee’s absence at the time of attempted service, the method of delivery varies depending on the type of the document:

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1) when there is no demand by law that the document has to be served personally to the addressee, the document is delivered to an adult member of addressee’s household (they are under an obligation to accept such document, Article 140, paragraph 1 of the Civil Procedure Ac) or co-worker (if he/she agrees, Article 140, paragraph 2 of the Civil Procedure Act). If none of mentioned is possible, the document is left in mailbox at the addressee’s address. It is deemed that the documents were served on the day the documents were left in home mailbox (Article 141 of the Civil Procedure Act). 2) when there is demand by law that the document has to be served personally to the addressee (lawsuit, Court decision, against which an appeal may be lodged, extraordinary legal remedy, payment order, an invitation to first legal proceeding – Article 142 of the Civil Procedure Act), the document is left (the same as under 1)) by an adult member of addressee’s household (they are under an obligation to accept such document, Article 140 paragraph 1 of the Civil Procedure Act) or co-worker (if he agrees, Article 140, paragraph 2 of the Civil Procedure Act). If none of this is possible a notification is left in the addressee’s mailbox or on his door, that the document are to be found on the nearest post-office and have to be picked up in 15 days (different than under 1)). The document is deemed to be served, when the addressee picks up the documents and signs the certificate of reception. If the addressee does not act in such way in 15 days, the document is deemed to be served after the conclusion of appointed 15 days. The document is then left in home mailbox (Article 142 of the Civil Procedure Act). Slovakia Depending on the type of delivery/service: Normal delivery/service (§ 46 CPC) 1 x attempt of service, afterwards the deposition at a post office or a municipal authority with a call for collection of the paper, the day when the paper was returned to the court is considered to be the day of delivery even if the addressee had no knowledge of the deposition Formal service (“personal service”): - two attempts of servicing, afterwards deposition plus a call for collection of the document (same as above) - § 47 CPC. Delivery to legal entities and entrepreneurs: If the service of a document at the address of its seat recorded in the commercial or another register failed and no other address is known to the court, the document shall be deemed served on the third day from the return of the undelivered document to the court (§ 48 (1) CPC) Publication on the court´s official public notice board: fifteenth day of the publication (§ 47a CPC) Delivery via deposition in the court´s proceeding files: The papers deposited in the files are considered delivered seven days after they are produced (§ 48 (4) CPC)

Finland

Sweden 1. Ordinary service: when the addressee has received the document or when a messenger has received the document (DL § 18) 2. Verbal service: when the document has been read out (DL § 21) 3. Simplified service: when two weeks have passed since the document was sent , if a following message ha been sent in the prescribed manner and it under the circumstances does not seem unlikely that the document arrived within this time (DL § 26) 4. Service by process-server: when the document or a written notice containing the same information as the document has been delivered in the prescribed manner or when the addressee has refused to accept the document or written notice (DL § 39 para.1) 5. Substituted service: when the document has been delivered and the addressee has been informed about the service and who that has received the document (DL § 39 para. 2) 6. Service by proclamation: when two weeks have passed since from the decision on the service

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and the proclamation and other services have taken place at the right time (DL § 51) 7. Service with a legal entity: when two weeks have passed since the document was sent, if a following message has been sent in the prescribed manner and it under the circumstances does not seem unlikely that the document arrived within this time (DL § 30).

United 6.14 Kingdom A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).

4.14.1.2 Conclusions

 There is no common procedural rule regarding the moment in which the national service of documents is deemed to have been served.

 Solutions between Member States vary from considering the day of delivery (that is the case of Austria, Bulgaria, Estonia, France, Luxemburg, the Netherlands, Czech Republic, Germany, Ireland, Hungary, Malta, Poland, Portugal, Romania or Sweden), the date after the reception of the served document (Belgium, Greece, Spain and Italy) or even two days after the reception (U.K.)

 In all Member State proof of the reception or of the attempt of delivery is required.

 As a different solution, Latvian rule should be pointed out: On the seventh day from sending of the documents if sent by mail; or, if sent by e-mail, on the third day from sending of the document.

4.14.2 Docments that need to be served formally 4.14.2.1 Comparative table

MEMBER Documents that need to be served formally STATE Austria The subject federal act lays down the rules for the service of documents to be transmitted by courts of law and administrative authorities in implementation of the laws as well as for the service, to be effected by them, of documents received by authorities of foreign countries (§ 1 SDA). A „document" is a writing, regardless in which technical form delivered, in particular a written result of an act (action) of the authority (§ 2 SDA). Belgium The law specifies which documents must be served or notified; however, there are too many of these for an exhaustive list to be provided. Examples include summons, requests, judgments, appeals, objections, etc. Bulgaria Art. 7, Para. 2 stipulates the general obligation of the court: The court shall serve upon the parties a duplicate copy of the acts which are subject to appellate review by separate appeal Czech We do not distinguish between formal and informal service within the court Republic procedure. All documents issued by court are served according to the Civil

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Procedure Code. Shall one party deliver anything to the second party and it is concerning the court proceeding, it is handed over to the court and the court puts the document in the file. Shall the second party be interested in the content it is her responsibility to see the file.

Estonia ‘Documents relating to the proceedings’ (Menetlusdokumendid) such as claim form, appeals, service forms, judgments (CCP § 306(5)). Germany Service of documents ex officio may be regulated by law or ordered by court (sec. 166). A party-to-party service of documents may be regulated by law (sec. 191) or may be initiated by any originator of an declaration of will (sec. 132 BGB); for this reason there is no enumeration of documents that need to be served formally. Two important examples are a) court decisions (sec. 317); b) writ of summons (sec. 253 para. 1). Greece The proceedings pending will be notified to those who, according to the

y be affected by the judgment that will be eventually rendered, or to persons

Court decisions and organisational measures taken by the Court Clerk those who are party to the proceedings. Third parties will also be notified in the cases provided for by the law.

Spain Court decisions and organisational measures taken by the Court Clerk must be notified to all those who are party to the proceedings.

By order of the court, the proceedings pending will also be notified to those who, according to the case documents, may be affected by the judgment that is eventually issued, or to persons concerned. A document of this kind will be served, under the same conditions, when the court becomes aware of evidence that the parties are using the proceedings for fraudulent purposes.

Third parties will also be notified in the cases provided for by the law. France The principle can be found in article 651 CCP. All the documents concerning the process “are brought to the knowledge of the interested parties by notification thereof made to them”. Ireland Any documentation by which proceedings in the District Circuit or are instituted (including appeals from a lower court) and any other subsequent documentation relating to civil proceedings. Italy Formal notification is carried out in cases where it is provided for by statute in order to attain specific procedural effects, on request by a party, the prosecution service or the court registry. Documents which need to be served formally: court documents (e.g. judgment where only a short period is allowed for an appeal) court registry documents (registrar’s notification) documents emanating from parties to a case (e.g. writs of summons) documents issued by the prosecution service (e.g. appeals). Cyprus

Latvia Court summons

Other documents prepared by the court (judgments, decisions etc.) and documents handed in to the court by a participant of the matter (appellate complaints, written explanations etc.), which are later served by the court upon other

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participants in the matter, may be sent by mail, by registered mail, by e-mail or they may be delivered by a messenger upon request of the participant of the matter or upon the court’s discretion. Lithuania

Luxembourg - writs of summons; - court decisions. Hungary In principle, all official (judicial, administrative) documents are to be served formally; however, for evidentiary reasons, also private parties use this method. Malta All pleadings and documents filed by a party must be served on the opposite party.

Judgments are delivered in open court and copies are not served on the parties. Interlocutory decrees delivered in camera (other than orders given in terms of art. 173, infra) are deemed in terms of art. 229(10) to have been read out in open court on the date of the first sitting in the case immediately after the decree was given in camera by the court, and are therefore not served on the parties, unless the court orders otherwise. Orders given in terms of art. 173 “in order to ensure full compliance with all matters of procedure, or to seek more detailed information, or to expedite or facilitate proceedings or to avoid the unnecessary appearance of parties or witnesses” are to be communicated by the registrar even by letter to the advocates or legal procurators of the parties, which letter is to be handed personally to such advocate or legal procurator, and, by post, to the parties themselves. Netherlands The writ has to be served by the bayliff (art. 45 CCP). The application is done by the court (art. 271 CCP). Poland - Documents issued by the court (decisions, judgements, instructions, orders), addressed to the parties - Documents issued by the parties, submitted to the court Portugal The defendant’s notification involves the simultaneous delivery of the application’s and its accompanying documents copy (art. 235.º, n.º 1 P.C.P.C.). The same rule is observed on what concerns the notification of the other parties pleadings. The notification of orders or judgments must be accompanied by a legible copy of the decision and its grounds (art. 259.º P.C.P.C.). Romania According to the Romanian legislation, the following documents must be served formally: Court summons; Procedural documents such as the initial request of the Claimant, the counterclaim of the Defendant, the response to the request, the request for appeal etc; All the decisions of the Court except the irrevocable decisions. Slovenia d organisational or procedural measures taken by the Court must be served to all of eedings. Also every application send by one party to the court has to be notified to onally, the proceedings pending will also be notified to those who may be affected by esult of such proceedings in cases where the court allows for intervention of such ngs. Third parties will also be notified in the cases provided for by the law. Slovakia According to § 47 (1) CPC documents shall be delivered personally (most formal way – to the “own hands” of the addressee) where it is required by law or where it is ordered by the court. The CPC requires personal service of the following documents (among others): Information about the possibility of service of documents to an another place as the

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address of the addressee and about the possibility of delivery by deposition in the court´s proceeding files (§ 48 (5) CPC) The petitions to commence proceedings are to be served pesonally (§ 79 (3) CPC) and its amendment (§ 95 (1) CPC). The decision on instituting proceedings on the court's own motion is served personally (§ 81 (2) CPC)

Finland

Sweden Service must be used if it is specifically prescribed. As an example a summons must be served on the defendant in a dispute (article 42:5 para. 2 the Swedish Code of Judicial Procedure). And service must be used if a court injunction is sanctioned with fines, as the case is when a witness is to be heard (article 36:7 the Swedish Code of Judicial Procedure). And the appeal must be served on the counterparty (article 50:8 para 1 the Swedish Code of Judicial Procedure).

United All court documents, including claims, applications, judgment orders, petitions etc. need Kingdom to be served formally, following the various rules, but this can take the form of posting, personal service, bailiff service etc.

4.14.2.2 Conclusions

 There is common procedural rule regarding judicial documents: Judicial documents need to be formally served.  Experts did not take into account the administrative documents. Nevertheless, it seems that the same formal service of documents is required when serving administrative documents with influence on the addresee´s rights.

4.14.3 Consequences of the non service of documents because of refusal 4.14.3.1 Comparative table

MEMBER Consequences of the non-service of the documents because the addressee STATE refuses to accept it Austria If addressee or a substitute addressee living with him in the same household refuses acceptance without any reason admitted by the law, the document shall be left at the place of delivery or, if this is not possible, deposited in accordance with § 17 SDA (see below) without giving the notice in writing as provided there. Service of delivery of such documents is considered effected whenever they have been left in the aforementioned manner (§ 20 SDA). Belgium Art. 33: if service is done in person and the addressee refuses to accept the document, the bailiff has the task to mention this refusal on the original of the document and service is deemed to have taken place. Bulgaria According to Art. 44, Para. 1 CPC the server shall attest, by the signature thereof, the date and the manner of service, as well as all steps in connection with the service. The server shall furthermore note the capacity of the person whereupon the

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communication has been served. The recipient shall likewise attest, by the signature thereof, that the said recipient has received the communication. A refusal to accept a communication shall be noted on the receipt and shall be attested by the signature of the server. The refusal of the recipient shall not affect the dueness of the service.

Service by telephone or by telefax shall be attested in writing by the server, and service by telegram shall be attested by an advice of delivery of the said telegram, and where service has been effected by means of telex, service shall be attested by a written confirmation of delivery of the message. Service by post shall be attested by the addressee's acknowledgment of receipt. (Art. 44, Para.2)

The refusal to accept the communication made by post has not the the same legal consequences as the refusal noted on the receipt by the signature of the court official, because the post servant has not the quality of court official.

Service at an electronic address shall be attested by a copy of the electronic record of the service.(Art. 44, Para. 3)

The receipt attesting service by a court official or by a private enforcement agent, the addressee's acknowledgment of receipt attesting service by a postal officer, the advice of delivery of a telegram, as well as the written confirmation of delivery of a message by telex, shall be returned to the court immediately after being drafted.(Art. 44, Para. 4). Czech According to the article 50c of the Civil Procedure Code the document is deemed Republic to be served.

Estonia When a person unlawfully refuses to accept service, the document is deemed to be served as of the refusal to accept it. The document is then left to the person’s private- or business premises or put to his mailbox or, if the previous is impossible, is taken back to the court (CCP § 325). Germany If acceptance is refused, the document may be left behind at the addressee’s residence or office, or, if there is no residence or office, the document may be sent back; service is deemed to be executed at the time of refusal (sec. 179). Greece According to article 13oCCP, where the addressee of the notice, or the persons representing him, relatives or servants living with him, refuses to receive the copy of the decision or summons or to sign the certificate of service, the process server will post the document to be served on the door of the residence, office , shop or other professional establishment, in the presence of a witness. If the addressee has no residence, office etc. and refuses to receive the document or refuses or cannot sign the relevant service certificate, his refusal is certified by a witness used by the process server for that purpose and the document is delivered to the head of the police station in the area of the addressee’s residence. The process server must send by mail to the addressee a notice, mentioning the nature of the document posted and delivered to the police and relevant details. Spain According to article 161, where the addressee of the notice is found to be at the address and refuses to receive the copy of the decision or summons or to sign the certificate of service, the civil servant or, as appropriate, the court representative in charge of serving notice shall inform him that a copy of the ruling or summons remains at his disposal at the Court Office and that the effects of having served notice shall have come about, all of which shall be stated in the certificate. France Article 656 gives an answer : « If no one may or is willing to receive the copy of the process and if it appears, from the inquiries made by the bailiff to which a reference

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is made in the writ of service, that the addressee lives at the address indicated, the service will be deemed to have been made at the place of domicile or residence ». The bailiff will leave at the place of domicile or residence of the addressee a non- delivery notice. Such notice must state that a copy of the process must be collected as soon as possible at the bailiff's office, against a receipt or annotation, by the interested party or by any person specially authorised. The copy of the process can then be removed at the bailiff's office, during three months. After this time, the bailiff is discharged. Ireland Pursuant to Orders above, service may be deemed effective on application to the Court. Italy If the addressee refuses to accept the copy of the document served, the bailiff states it in its record and notification is considered to be effected personally on the addressee (section 138 of the Italian Code of Civil Procedure) Cyprus

Latvia As provided in Section 57 of the Latvian Civil Procedure Law, if a person to be summoned or summonsed to the court refuses to accept the summons, the summons server makes an appropriate notation in the summons. Refusal to accept a summons is not an impediment to the adjudication of a matter. Lithuania

Luxembourg According to article 102(4) and 155(4) NCPC, the documents are deemed to have been served on the day of delivery even with a refusal of the addressee. The refusal must be noted by the person making the delivery of the documents. Hungary If the addressee refuses to accept the document, the document is to be regarded as having been served, that is, the consequences of refusal is that the document is to be regarded as if it had been delivered to the addressee. Malta Where service is refused the court may, on application by the interested party and after hearing the executive officer of the court, by decree declare that service shall be deemed to have been effected on the day and time of the refusal, in terms of the second proviso to art. 187(1). Netherlands If the addressee refuses to accept the writ, the bayliff will mention the refusal on the bayliff’s notification. The addressee is regarded to have received the writ “in personam”. The bayliff will also leave a copy of the writ in a sealed envelope in the postbox of the adessee (Article 46 par. 3 CCP). Poland According to the article 139 par. 2 CCP, if the addressee refuses the acceptation of the document, the delivery considers for accomplished. In such case deliverer returns document to the court with the annotation about the refusal. The document turned on the result of impossibilities of the delivery is put in the files of matter with the result of the delivery. Portugal According to the art. 254.º, n.º 4 P.C.P.C. the notification is deemed to have been served even when the letter is returned, if it was sent to the party’s lawyer office or to the address chosen by the lawyer. On what concerns the defendant’s notification, the art.255.º, n.º 1 P.C.P.C. establishes that if the defendant (or someone who is at his home) refuses to sign the acknowledgment of receipt or to receive the letter, the distributor of postal service notes the incident before returning the letter. When the post defendant’s notification fails, it is done by personal contact of the enforcement officer to the defendant. If the defendant refuses to receive the letter, the enforcement officer informs him that it remains at his disposal at the Court Office and states it in the certificate. Then, the Court Office sends the defendant a letter with acknowledgment of receipt informing the defendant that the letter it remains at his disposal at the Court Office (arts. ns. 236.º, 6 and 239.º, ns. 1, 4 and 5 of the

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P.C.P.C.). If it seems to be useful, the defendant can be previously summoned to appear in the Office Court, in order to be notified there (art. 239.º, n. 11 P.C.P.C.) Romania According to the article 92 of the Civil Procedure Code, if the addressee refuses the reception of the documents serviced or of the summons or does not want to/cannot sign the acknowledgement of receipt, the court representative leaves the documents to the addressee or, if the addressee refuses the reception, displays them on the door of the addressee’s domicile or on the door of the main building, concluding a minute about this situation. According to article 96 of the Civil Procedure Code, if the service of the documents occurs during the hearing in Court, the present party cannot refuse the reception of these documents. However, the Court can approve, at the party`s request, the adjournment of the case in order to allow the party to ascertain their content. Slovenia According to the Article 144 of the Civil procedure Act, if the addressee is found to be at the address and refuses to accept the document without grounded reasons, the document is left in addressee’s mailbox or in his apartment. If there is no mailbox, a copy of the document is attached to the addressee’s door. On the certificate of reception the civil servant writes the day and hour of the delivery and reasons for refusal. The documents are deemed to be served on the day the documents were left in the mailbox/apartment/door.

Slovakia According to § 50 CPC, if the addressee refuses to receive the document without having any serious reason therefore, the document is considered delivered on the day when the receipt was refused; the addressee (the entitled person) must be instructed thereof by the delivering person. Finland

Sweden If an addressee refuses to accept a document service by process-server can be used. If an attempt at service by process-server has failed because the addressee has refused to accept the document, the document shall be left where the addressee has been found (DL § 32 § para.2). Service is deemed to have been affected already at the time when the addressee refused to accept the document (DL § 39 para.1). United A claim form served within the United Kingdom in accordance with this Part is Kingdom deemed to be served

4.14.3.2 Conclusions

 Whenever the service of the document is refused by the addressee a common general procedural rule to all Member States is found: the addressee is deemed to have been served. Certifictation of the refusal by the process server is required.

 Different extra conditions are required by the internal legislation. So, in Spain information about the effects of the refusal is necessary. In Ireland, for example, only after application to the Court the document is deemed to have been served.

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4.14.4 Obligation of the court of any other authority to search for the unknown addressee 4.14.4.1 Comparative table

MEMBER Obligation of the court of any other authority to search for the unknown STATE addressee Austria Belgium The Court is not bound to search for the domicile of the addressee, this is the duty of the sender. He needs, in good faith and with all possible means of a bonus pater familias, to try to find the address of the addressee (Cass 1 April 2010). Bulgaria According to the national service of documents the court is not bound to search for the unknown addressee’s domicile. After the first attempt without success, the court shall instruct the plaintiff and give him/her the possibility to search of records regarding the residence of the respondent. Cases where the respondent cannot be found at the address named under the case and a person willing to accept the communication cannot be found Where the respondent does not present himself or herself to claim the papers, the court shall instruct the plaintiff to present a statement of search of records regarding the residence registration of the respondent, except in the cases referred to in Article 40 (2) and Article 41 (1) herein, when the communication shall be filed with the case records. If the address named in the statement is other than the permanent and current address of the party, the court shall order service at the current or permanent address according to the procedure established by Paragraphs (1) and (2). Where the server finds that the respondent does not reside at the address named, the court shall instruct the plaintiff to present a statement of search of records regarding the residence registration of the respondent notwithstanding the posting of the notification under Paragraph (1). (Art. 47, Para. 3 and 4) Czech Generally the parties shall give the court places where the parties are to be found. Republic In case the parties do not identify such a place, the court searches for the address of the addressee in the register of inhabitants (register is kept according to special legal act and serves for various reasons, not only court proceedings, but primary for administrative reasons). The documents are then served to the address in the register and are deemed to be served (unless the law excludes so). The court is not then in need to search for the real place of residence, it is enough to use the address in the register.

Estonia The court can delegate service to police, bailiff or other competent official. The document cannot deemed to be served by public service in the publication Ametlikud Teadaanded, unless the court has tried to use such means (CCP § 315, § 317(2)). Germany A reasonable effort to search for the unknown addressee’s domicile has to be undertaken and is condicio sine qua non for service of documents by public notification (sec. 185 no. 1 and 2). In a party-to-party service of documents by public notification, the consigner has to proof that such efforts have been made. It is controversial, whether this applies in an ex officio service of documents by public notification as well, or if the search is within the court’s responsibility. Greece No obligation

Spain According to article 156, in cases where the claimant states that he is unable to designate the defendant’s address or place of residence for the purposes of entering

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an appearance, the Court Clerk shall use any suitable means to find it and may, as appropriate, get in contact with the Registries, organisations, professional associations, entities and companies referred to in paragraph 3, Article 155.Upon receiving such communications, the Registries and public bodies shall proceed pursuant to the provisions governing their activities. Under no circumstances shall the designation of an address be deemed impossible for the purposes of serving notice if such address is recorded in public archives or registries to which access may be gained. Should the investigations referred to in paragraph 1 lead to the address or place of residence being found, notice shall be served in the second manner set forth in paragraph 2, Article 152 and, as appropriate, the provisions set forth in Article 158 shall apply.Should these investigations turn out to be fruitless, the Court Clerk shall issue an order stating that notice shall be served through public notices France According to article 659, « where the person upon whom the process must be served does not have any known domicile, residence or place of employment, the bailiff will draw minutes in which he will narrate in detail the steps he has taken to look for the addressee of the process. On the same day, or no later than the first following working day, under penalty of nullity, the bailiff will transmit to the addressee, at the last known address, by a registered letter with the advice of delivery slip sought, a copy of the minutes to which is annexed a copy of the process which is the subject-matter of the service. On the same day, the bailiff will inform the addressee, by an ordinary letter, of the formality carried out ». If it is not established that the addressee has in fact been notified, the judge may order sua sponte any additional steps save where he orders provisional or protective measures necessary to safeguard the rights of the plaintiff (art. 662). Ireland No obligation

Italy If the addressee’s habitual residence, abode and official residence are unknown, service is carried out by depositing a copy at the town hall of his last place of residence or, if that is unknown, at the town hall of his place of birth. If these places are also unknown, the copy will be sent to the prosecution service (section 143 of the Code of Civil Procedure). In those cases service is deemed to be effected on the twentieth day following that of the accomplishment of the prescribed formalities. Cyprus

Latvia If the place of residence of a defendant is unknown, they shall be summoned to the court by publication of a notice in the newspaper Latvijas Vēstnesis [the official Gazette of the Republic of Latvia]. The Court is not bound to search for the unknown addressee’s domicile, however, according to Section 60 of the Latvian Civil Procedure Law, if the place of residence of a defendant is unknown, the court, pursuant to the request of the plaintiff, is entitled to proclaim a search for the defendant. Lithuania

Luxembourg According to article 157 NCPC, the bailiff shall accomplish all the needed diligences to research the addressee and report it with precision in a statement. According to article 158 NCPC, if the addressee is not found or if it is not established that he has received the documents, the judge can also prescribe any additional diligences in this respect. Hungary As a general rule, the court is not obliged to investigate the address of the person the document is to be served to; nonetheless, there are exceptions: for instance, in certain family matters (maintenance, placement of the child, legal disputes

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concerning affinity etc.) the court may decide for the search of the defendant’s, the mother’s or the child’s address. In this case the court has to contact the police. Malta No. It is incumbent on the interested party, in terms of art. 174(2)(d), to provide the address of the party whom he wishes to be served with any pleading or other document. Moreover, whenever a party submits a pleading in court such party must, in terms of art. 174(2)(c), provide an address where it may be served in reply. Netherlands In proceedings commenced by a writ (dagvaardingsprocedure) the bayliff will try to find a new address of the addressee. Only the bayliff is allowed to ask for addressee’s data information at the municipal registers. Anyway, if the bayliff finds out the addressee has moved, he (or the claimant) should ask relatives, neighbours etc. for another address. If they did not make enough effort, the court may refuse the service on an unkown address and as a consequence refuse to give a default- judgement. On the other hand, it is the resposibility of the addressee to have his latest domicile mentioned in the municipal registers. If the claimant has served the writ on the address mentioned in the municipal registers, the service is completed. There is no legal ruling. It is up to the court to decide. Poland If the address is not known, according to Polish rules the court is not bound to search. In this case, if there is need to deliver the suit or different procedural document, calling out the need of the protection of laws, to the person whose place of the stay is not known, delivery can be done only to custodian, set up by the court in execution the petition of interested person, till the moment of the recognition of the party of its representative or proxy. In the cases, when establishment of the custodian is not required, the document is delivered to the party, whose place of the stay is not known, by hanging out in the judicial building. Such delivery becomes effective with the outflow of the month since the day of hanging out. Portugal According to article 244.º P.C.P.C., if the claimant states that he is unable to designate the defendant’s address for the purpose of entering an appearance or when the defendant is absent and his addressee is not found, the Office Court tries to obtain information about the defendant’s last whereabouts or residence from any entities or services, namely, under previous judicial summon, in the civil identification services, social security, Tax General Direction and Roads General Direction data bases and, when the judge assumes that that is absolutely indispensable in order to decide if the service announcement should be done, the policial authorities should be asked. These services and authorities must promptly inform the Court about the requested information. Romania According to the Romanian legislation, only the Claimant has the obligation to find out, by all the means possible, the addressee’s domicile. If the Claimant fails to find out the addressee’s domicile, despite his serious efforts, the Court does not assume this obligation, nor does it force other authorities to search for the respective address. On the contrary, according to the article 95 of the Civil Procedure Code, when the Claimant proves that he couldn’t find out the domicile of the addressee, the president of the Court admits the display of the summons or of the documents at the headquarters of the Court and, if necessary, their publication in the Official Gazette of Romania or in a widespread newspaper. Slovenia In accordance with Article 148 of the Civil Procedure Act the Registries and other administrators of personal data are under legal obliged to notify, upon request, every interested party about addressee’s domicile. The legal interest of the party derives from the confirmation of lodged lawsuit or existence of the proceedings. The Court will therefore search the addressee’s domicile in public registers only in cases,

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where the party is unable to obtain such information. Only when a party demonstrates that by all means, he/she was unable to find addressee’s domicile, the Court shall use any suitable means to find it and may contact with the Registries, organisations, professional associations, entities and companies, which are obliged to provide data (Article 10 and Article 143 of the Civil Procedure Act).

Additionally, if the party of the proceedings changes his/her domicile during the proceedings, the notification to the court is necessary. If the party does not act is such way, the Court orders the documents to be served on the bulletin board of the Court. The documents are deemed to be served 8 days after the document was attached to the notice board (Article 145 of the Civil Procedure Act). Slovakia According to § 29 (2) CPC Except where he takes different measures, the court may appoint a guardian also to a party whose whereabouts are unknown, or who has been unsuccessfully served at his known address abroad, or whose service abroad is connected with serious difficulties, as well as to mentally incapacitated parties or parties incapable of intelligible communication. This provision is interpreted as binding the court to search for the domicile of the party, and only after the search had proven unsuccessfull, the court may appoint a guardian to the party (see for instance the decision of the Slovak supreme court 19. Dec. 2008, 5 Obo 137/2008). Finland

Sweden An authority can use so called service by proclamation in case the addressee´s domicile is unknown and it also can not be made clear where he or she is staying (DL § 48 para. 1). From this follows that an authority has to search for the unknown addressee´s domicile. According to the preparatory work (Proposition 2009/10:237 p. 190), the circumstances of each case will determine what investigation the authority must carry out in order to be able to establish that it can not be made clear where the addressee is staying. United Notification of outcome of postal service by the court Kingdom 6.18 (1) Where – (a) the court serves the claim form by post; and (b) the claim form is returned to the court, the court will send notification to the claimant that the claim form has been returned. (2) The claim form will be deemed to be served unless the address for the defendant on the claim form is not the relevant address for the purpose of rules 6.7 to 6.10.

Notice of non-service by bailiff 6.19 Where – (a) the court bailiff is to serve a claim form; and (b) the bailiff is unable to serve it on the defendant, the court will send notification to the claimant

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4.14.4.2 Conclusions

 There is obligation of searching for the unknown addressee in Greece, Ireland, Latvia, Hungary, Malta, Poland, the Netherlands and Romania. In these Member States, if service of documents is necessary different solutions has been applied:

o In Latvia if the place of residence of a defendant is unknown, they shall be summoned to the court by publication of a notice in the newspaper Latvijas Vēstnesis [the official Gazette of the Republic of Latvia].

o In Romania, for example, it is admitted the display of the summons or of the documents at the headquarters of the Court and, if necessary, their publication in the Official Gazette.

o In Poland, delivery can be done only to custodian, set up by the court in execution the petition of interested person, till the moment of the recognition of the party of its representative or proxy. In the cases, when establishment of the custodian is not required, the document is delivered to the party, whose place of the stay is not known, by hanging out in the judicial building. Such delivery becomes effective with the outflow of the month since the day of hanging out.

o In the Netherlands it is the resposibility of the addressee to have his latest domicile mentioned in the municipal registers. If the claimant has served the writ on the address mentioned in the municipal registers, the service is completed. There is no legal ruling. It is up to the court to decide.  Obligation of searching for the unknown addressee exists in Czech Republic, Germany, Greece, Spain, Italy, Slovenia, Slovakia or Sweden. However, reasonable efforts are required to the person interested on the service of documents. The way of proving the efforts or attempts varies among Member States.  There is no obligation in France and Luxemburg.  Differences among Member States make difficult to find a common procedural rule at international service of documents level.

4.14.5 Legal consequences of the non-service of the documents because of the addressee is not found 4.14.5.1 Comparative table

MEMBER Legal consequences of the non-service of the documents because of the STATE addressee is not found Austria Cases where the delivery place is known but the addressee is not present at the time of delivery I. If it is not possible to serve the document to addressee and a substitute addressee is present at the place of delivery, delivery may be served to him (substitute service), provided that the person delivering it has reason to assume that addressee or a representative in terms of § 13 para 3 (If addressee is not a natural person, service of delivery of the document is to be effected to a representative duly authorized to

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accept delivery) is normally present at the place of delivery. Any grown up person may be a substitute addressee, provided that such person lives at the same place of delivery as addressee or is addressee’s employee or employer and willing to accept the mail served – except if living in common household with addressee. Upon written request of addressee, delivery service organs must not serve certain substitute addressees or may serve only certain substitute addressees. Persons having an interest in the cause or as previously notified in writing by addressee shall be excluded from being served to this effect by an instruction on the part of the authority written on the document and on the proof of service; service of delivery must not be effected to such persons. A substitute service is considered not effected if addressee or his representative in terms of § 13 para 3 were not present at the place of delivery and consequently were not able to obtain, in due time, knowledge of the service, service however shall be effective with the day following the return to the place of delivery (§ 16 SDA).

II. If it is not possible to serve the document at the place of delivery and the person effecting service has reason to assume that addressee or his representative in terms of § 13 para 3 are normally present at the place of delivery, the document shall be deposited by the delivery service at its appropriate branch office, in case of a mail service, or at the local municipality office in all other cases, or with the authority if located in the same municipality. Addressee shall be informed in writing of the deposition. Such notification shall be deposited in the installation serving the place of delivery (mail box, apartment house mailbox or mail slot) or, if this was not possible, fixed to the entrance door (door of the apartment or house, garden door). It shall name the place of the deposition where the mail has been deposited, the beginning and the end of the period when it can be picked up as well as the legal effect of its having been deposited. The document deposited shall be kept for being picked up for a minimum period of two weeks. Such term shall start being effective with the first day the document is made available for being picked up. Service of documents deposited is considered having been effected on the first day of such term. They are considered not served if addressee or his representative in terms of § 13 para 3 were not present at the place of delivery and consequently were not able to obtain knowledge of the service in due time, service however shall become effective on the date following the day of return to the place of deposit within the time allowed for picking up the item, on which the document deposited could have been picked up. The service of delivery effected by depositing the item is also legally valid if the notification named in para 2 has been damaged or removed (§ 17 SDA). If addressee is not (§ 17 para 1) permanently present at the place of delivery, the document shall be forwarded to a different domestic place of delivery if 1. service of delivery is to be effected by delivery service organs and forwarding is provided by the rules applicable for transmitting pieces of mail; 2. service is to be effected by agents of the authority or of a municipality and the new place of delivery can be ascertained without problems and is located within the area of jurisdiction of the authority or of the municipality. (2) Documents not to be forwarded according to a notice accompanying them shall not be forwarded (§ 18 SDA). If service of delivery or forwarding was not possible or deposited documents were not picked up, they shall be returned to the authority. The reason for being returned shall be noted on the document (§ 19 SDA). Cases where the delivery place is not known I. According to § 24a SDA the recipient can be served at any place where he is

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present if 1. he is ready to be served or 2. has no domestic place of delivery. II. Service by public announcement: Except in cases of a criminal proceeding, or when no authorized recipient has been appointed and proceeding according to § 8 SDA is not required, service to persons whose place of delivery is not known, or to a large number of persons not personally known to the authority, may be effected by posting it on the official bulletin board with the information that a document is available for service with the authority. If addressee does not come and pick up the document (§ 24 SDA), and the law does not provide differently, service of delivery is considered having been effected after a two weeks period has elapsed since the information was posted on the official bulletin board. The authority may supplement the public announcement in any other suitable manner. Concerning this constellation there is a special provision for the service by civil courts: The Service is effected by including it in the Edicts Archive/Edicts database (“Ediktsdatei”). Service of delivery is considered having been effected with the date of posting in the Edicts Archive. In cases of public announcement where the addressee has to take procedural steps in order to defend his rights, the court has to appoint a trustee (“Kurator”; § 116 CCP); an exemption is made concerning registered commercial enterprises (§ 92 CCP): without appointing a trustee, service of delivery is considered having been effected after a two weeks period has elapsed since the information was included in the Edicts Archive. Belgium Service may take place at the office of the public prosecutor of the judicial district of the court where the case will be heard. If the case is not pending, service may take place at the office of the public prosecutor at the place of the domicile of the sender, or, if this is outside of Belgium, in Brussels (Art. 40). This is a fictional service to which the addressee is bound, save if the person requesting service knew the address of the addressee in Belgium or in a foreign country, than service at the office of the public prosecutor is invalid (Art. 40). Bulgaria Cases where the addressee´s domicile is known but he is not found there: According Art. 46, Para. 1 where a communication cannot be served upon the addressee personally, the said communication shall be served upon another person who is willing to accept it. Another person may be any member of the household or any person who resides at the address, or who is a factory or office worker employed by or, respectively, an employer of the addressee and who has attained the age of 18 years. The person wherethrough service is effected shall sign the receipt, undertaking to pass the summons to the addressee. Service may not be effected upon persons who participate in the case as an opposing party to the addressee. (Art. 46, Para. 2). The court shall exclude from the range of other persons those who are interested in the outcome of the case or who are expressly named in a written statement by the addressee. These persons shall be listed in the communication and in the addressee's acknowledgment of receipt. (Art. 46, Para. 3). Upon receipt of the communication by the other person, service shall be presumed effected upon the addressee. The addressee may move for resumption of the time limit if the addressee was absent from the address and was unable to learn of the service in due time. The time limit referred to in Article 64 (2) herein shall begin to run as from the time when the addressee was able to learn of the service. (Art. 46, Para. 4). Where the respondent cannot be found at the address named under the case and a person willing to accept the communication cannot be found, the server shall post a notification on the door or on the mailbox, and where no access is afforded thereto,

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on the front door or in a conspicuous place around the front door. Where the mailbox is accessible, the server shall place a notification therein as well. (Art. 47, Para. 1). The notification shall state that the papers have been left at the office of the court, where service is effected through a court official or a private enforcement agent or, respectively, at the municipality, where service is effected through a municipal official, as well as that the said papers can be claimed there within two weeks after the posting of the notification. (Art. 47, Para. 2). Where the respondent does not present himself or herself to claim the papers, the court shall instruct the plaintiff to present a statement of search of records regarding the residence registration of the respondent, except in the cases referred to in Article 40 (2) and Article 41 (1) herein, when the communication shall be filed with the case records. If the address named in the statement is other than the permanent and current address of the party, the court shall order service at the current or permanent address according to the procedure established by Paragraphs (1) and (2). (Art. 47, Para. 3). Where the server finds that the respondent does not reside at the address named, the court shall instruct the plaintiff to present a statement of search of records regarding the residence registration of the respondent notwithstanding the posting of the notification under Paragraph (1). (Art. 47, Para. 4) The communication shall be presumed served upon expiry of the time limit for claiming the said communication from the office of the court or the municipality. (Art. 47, Para. 5). Having established that the service has been duly effected, the court shall order that the communication be filed with the case records and shall appoint an ad hoc representative at the expense of the plaintiff. (Art. 47, Para. 6). The provisions of Paragraphs (1) to (5) shall apply, mutatis mutandis, to the service of communications on an assisting party. (Art. 47, Para. 7). The provisions of Paragraphs (1) and (2) shall apply to the service of communications on a witness, an expert witness and a person who does not participate in the case, with any such communication being deposited in the mailbox and, where no access is afforded thereto, through posting of a notification.(Art. 47, Para. 8). Cases where the addressee´s domicile is not known: According Art. 48, Para. 1 if, when the case is instituted, the respondent does not have a registered permanent or current address, on a motion by the plaintiff, service shall be effected through publication in the Unofficial Section of the State Gazette, performed at least one month before the hearing. The court shall authorize the effecting of service according to this procedure after the plaintiff certifies by a statement of search of records that the respondent does not have a residence registration and the plaintiff confirms by a declaration that the said plaintiff is not aware of the address of the respondent abroad. If, despite the publication, the respondent fails to appear in court upon examination of the case, the case shall appoint an ad hoc representative of the said respondent at the expense of the plaintiff. (Art. 48, Para. 2). Czech Situations, when the addressee is not found (the address where to serve the Republic documents), are very rare, because according to previous paragraph and the Act 138/2000 Coll. on the register of inhabitants in case the place of residence (domicile) is unknown it is always municipality where the person was register for the last time. In these situations the court then delivers to the municipality, the addressee in not understood as of unknown place of residence and the document is understood to be served. So very rarely there is situation when the addressee has never lived in the Czech Republic, so it is not possible to identify the last address, and then the situation is solved by procedural guardian according to the article 29 of the Civil

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Procedure Code. Estonia If the court cannot determine the address of the person being served, he can be publicly served by publishing the document in the Ametlikud Teadaanded (CCP § 317(1)). Germany A service of documents by public notification may take place (sec. 185 no. 1 and 2).

Greece If the proper procedure as provided by the law is followed (posting of the document etc.) the service is deemed done, and the consequences are those of regular service.. Spain Cases where the addressee´s domicile is known but he is not found there: According to article 161, premises or at the address of the person who has to be given notice, hand a citation or summoned. Service shall be recorded through a certificate signed by the civil servant or, as appropriate, by the court representative effectuating it, as well as by the person to whom it is served, whose name shall be stated. Should the address at which an attempt is made to serve notice be the addressee’s domicile according to the municipal residents registry, or for tax purposes, or according to an official registry or to a professional association publication and should the defendant not be found there, notice may be served to any employee, family member or person with whom the defendant cohabits who is older than fourteen years of age, or to the building’s porter, should there be one, duly informing the recipient that he is obliged to hand over the copy of the ruling or summons to the addressee or advise him thereof, should he know the addressee’s whereabouts. Should notice be sent to the addressee’s non-temporary place of work, it shall be served, should the addressee be absent, to a person who claims to know the addressee or, should there be an office in charge of receiving documents or objects, to whoever may be in charge of it. The name of the person to whom the notice is addressed, the date and the time at which he was sought and not found shall be recorded on the certificate, as shall the name of the person who receives the copy of the ruling or summons and his relationship with the addressee. Any notices thus served shall take full effect. Should nobody be found at the address at which notice is meant to be served, the Court Clerk or civil servant shall make an effort to find out if the addressee resides there. Should the addressee no longer reside or work at the address at which notice is meant to be served and the persons questioned there know his current address, such address shall appear in the certificate stating the failure to serve such notice. Should it turn out to be impossible to find out the defendant’s address through these means and should the claimant fail to designate any other possible addresses, the Court shall proceed pursuant to the provisions set forth in Article 156. Where notice has been made by a court representative and he should fail to serve it to the addressee due to any of the reasons set forth in paragraphs 2, 3 and 4 of this article, the court representative shall certify the occurrence of the circumstances referred to in the preceding paragraphs, for which purpose he may be aided by two witnesses or by any other suitable means.

Cases where the addressee´s domicile is not known: In any case, in the event of the enquiries referred to in article 156 being carried out and it is not possible to know the address of the receiver of the notice, or when the notice with all its effects cannot be served in accordance with the provisions in the preceding articles, or when so agreed in the case referred to in paragraph 2 of Article 157,the Court Clerk record such circumstances, and shall order notice to be served by attaching the decision or the summons to the bulletin board at the Court Office,

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safeguarding the rights and interests of minors, as well as other rights and liberties which might be affected by announcing the notices. Such announcements may be substituted, in the terms set forth in the regulations, by using telematic, computer or electronic means, as stipulated in Article 236 of the Organic Act on the Judiciary Branch120. Only at the request and expense of a party, shall notification be published in the “Official Gazette” of the province, of the Autonomous Region, in the “Official State Gazette” or in a national or provincial daily newspaper. In any case, in the notice or announcement referred to in the preceding paragraphs, for the higher interest of minors and in order to preserve their privacy, the personal data, names and surnames, addresses or any other data or circumstance which could permit their identification, whether directly or indirectly, shall be omitted. In eviction proceedings related to urban or rustic property due to failure to pay rent or amounts owed, or because of legal or contractual expiry of the time limit in proceedings involving claims for such rent or amounts owed, when the tenant cannot be found nor notice be made at the addresses designated in the second paragraph of number 3 of Article 155, nor had the lessor been irrefutably notified of a new address subsequent to the contract and the lessor had not opposed such address, the summons shall be attached to the bulletin board of the Court Office with no further steps required.

France Cases where the addressee´s domicile is known but he is not found there:

Article 655 gives the answer to this question : « If the personal service is impossible to do, the process may be delivered either at the place of domicile or, in defaultof a known place of domicile, at the place of residence. A copy may be left only on condition that the person present, the caretaker or the neighbour, accepts it, gives his surname, first names, capacity. The bailiff must leave, at all events, at the place of domicile or residence of the adressee, a dated non-delivery notice warning him of the delivery of the copy and indicating the nature of the process and the surname of the petitioner as well as providing such information relating to the person to whom the copy has been delivered ». If no one may or is willing to receive the copy of the process and if it appears, from the inquiries made by the bailiff, article 656 (mentioned above), must be applied.

Cases where the addressee´s domicile is not known: Article 659, mentioned above, must then be applied Ireland Pursuant to the Orders above, service by Civil Bill and Summons may be effective at alternate addresses where principal mode of service is by post. eg. Place of business, family, brother, sister, last known residence. Service may, subject to good reason, be deemed effective where otherwise ineffective. Additionally, an order may be granted permitted service by alternative means. Italy In cases where the addressee´s domicile is known but he is not found there, the act or document can be delivered to a different subject: a) a member of the addressee’s family, but not to minors aged 14 or less or to persons who are manifestly not capable of acting legally; b) or a person employed in his office, a neighbour or the warden. Peoples other than the addressee must sign a receipt and the court officer informs the addressee by a registered letter that the service has been effected. In cases where the addressee´s domicile is not known, service is carried out by depositing a copy at the town hall of his last place of residence or, if that is unknown,

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at the town hall of his place of birth. If these places are also unknown, the copy will be sent to the Prosecution service (section 143 of the Code of Civil Procedure).

Cyprus

Latvia As prescribed under Section 56 (5) of the Latvian Civil Procedure Law, a summons is served upon the natural person summoned or summonsed at the address indicated by a participant in the matter. The summons may be served also at the official address of residence if the address indicated by a participant in the matter differs from the official address of residence. The court summons may also be sent to the workplace of such person.

Cases where the addressee´s domicile is known but he is not found there: Pursuant to Section 56 (8) of the Latvian Civil Procedure Law, if the summons server does not meet the person at their place of residence, the summons server gives the summons to an adult family member residing with such person. If the summons server does not meet the addressee at their workplace, he or she leaves the summons with the workplace administration for it to be given to the addressee. In the cases mentioned the recipient of the summons sets out their name and surname in the signature part of the summons and indicates their relationship with the addressee or their work position, and the summons must be given to the addressee without delay. A defendant, who cannot be found at their place of residence, shall be summoned to the court through publication in the newspaper Latvijas Vēstnesis. A court may adjudicate a matter without the participation of the defendant, if not less than one month has passed since the day the summons was published in the newspaper Latvijas Vēstnesis. At the same time as a newspaper summons to a defendant is published, the summons shall also be sent to the defendant in accordance with the location of his or her immovable property, if the plaintiff has indicated such location (Section 59 of the Latvian Civil Procedure Law).

Cases where the addressee´s domicile is not known: Pursuant to Section 56 (9) of the Latvian Civil Procedure Law, if the addressee is not met at their place of residence and their location is not known, the summons server makes an appropriate note in the signature part of the summons. In the signature part of the summons the summons server also indicates place to where the addressee has moved and time of return, if known. A defendant, whose place of residence is unknown, shall be summoned to the court through publication in the newspaper Latvijas Vēstnesis. A court may adjudicate a matter without the participation of the defendant, if not less than one month has passed since the day the summons was published in the newspaper Latvijas Vēstnesis. At the same time as a newspaper summons to a defendant is published, the summons shall also be sent to the defendant in accordance with the location of his or her immovable property, if the plaintiff has indicated such location. If the place of residence of a defendant is unknown, the court, pursuant to the request of the plaintiff, is entitled to proclaim a search for the defendant (Section 59 of the Latvian Civil Procedure Law). Lithuania

Luxembourg As provided above, the judge can prescribe any diligence if it appears that the addressee is not found (article 158 NCPC). In practise, the judge will request the claimant to serve the documents a second time. If it the addressee still does not appear before the jurisdiction, the judge will render its decision.

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If the addressee is resident abroad, the judge may however render its decision if the conditions of article 156(4) NCPC are fulfilled i.e.:

If the document was served in accordance with an international convention. If there is no such convention, the bailiff sends a copy of the document by post with a registered letter with acknowledgement of receipt. In case that the receiving State does not admit a delivery by post, the bailiff shall address a registered letter with acknowledgement of receipt to the Ministry of foreign affairs with a copy of the document. In this way the document will be delivered to the addressee through the diplomatic channels; If a period, that the judge shall determine in each particular case, has passed; If no certificate has been obtained, notwithstanding the due diligences done with the required State.

Hungary If the postman brings the document to the addressee’s official place of living, that is, to the address which is to be found of the official ‘registry of persons and addresses’, and the postman finds noone at the addressee’s premise (note that not only the addressee may take the document but for instance also the relatives living in the same premise), he leaves a notice in the addressee’s mailbox, informing him or her that the document is to be found at the local post office. If the addressee does not contact the local post office in five days, the postman tries to serve the document once more. If the postman finds no one at the addressee’s premise, the same procedure is followed: he leaves a notice in the addressee’s mailbox. Nonetheless, this time (that is, after the second attempt to serve the document in person), if the addressee does not contact the local post office to take the document, the latter is to be regarded as having been served on the addressee, that is, the consequences is that the document is to be regarded as if it had been delivered to the addressee.

If the address of the person the document is to be served to is unknown (the addressee cannot be located), if he resides in a State where there is no legal assistance available as to service, or if service is hindered by insurmountable obstacles or any proposed attempt as to service appears to offer no results and in the case referred to in Subsection (4) of Section 100/A of the Hungarian Code of Civil Procedure, public notice (public notification) is to be used to serve the documents. (See Section 101-102 of the Hungarian Code on Civil Procedure)

Malta In terms of art. 187(3), if it appears from the certificate of the officer charged with service that the person upon whom such a pleading or act is to be served, is abroad, access to his place of residence cannot be obtained, or his place of residence in not known, the court may direct service to be effected by the posting of a copy of the written pleading or act at the place, in the town or district in which official acts are usually posted up, and by publishing a summary of such written pleading or act in the Gazette and in one or more daily newspapers as the court may direct and, where possible, when the residence is known, by posting up a copy of the pleading on the door leading to such residence. The court may also adopt such other measures as it may deem fit to bring the pleading or act to the notice of the person upon whom the same is to be served. In such cases, service shall be deemed to have been made on the third working day after the date of last publication or after the date of such posting, whichever is the later. In cases where service has been ordered with urgency, service shall be deemed to have been made at such time, after posting or publication as the court may determine, which time is to be stated in the publication

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or posting. If the addressee is not domiciled within the jurisdiction (on in any Member State to which the Service of Documents Regulation – Regulation (EC) № 1393/2007 – applies), or if his address is not known, official curators are appointed is represent him in judicial proceedings and service is effected on the official curators so appointed. Netherlands There are 2 situations: 1. The address is unknown at all. F.i. the addressee has moved and had his name removed from the municipal register in his latest town of domicile. If the domicile of the addressee is unkown in the Netherlands as well as abroad, serving of the document takes place according to Article 54 CCP which means that the serving of the document takes place on the Public Prosecution of the court where the proceedings will take place. In addition a copy of the writ has to be published in a national newspaper. By serving the writ on the Public Prosecution the serving is officially concluded. The court may decide that the domicile is not really unkown (see above). 2. The address is not known, but the addressee did not have his name removed from the municipal register. As it is the resposibility of the addressee to have his latest domicile mentioned in the municipal registers, the service is completed If the claimant has served the writ on the domicile mentioned in the municipal registers. Recently In the proceedings commenced by an application the ex-husband in appeal was served by the court on the wrong address, although the right address was known. The ex-husband did not appear and the appelate Court awarded the claim by default. In cassation the Supreme Court (Hoge Raad) decided that the ex- husband was refused his procedural right to be heard in the proceedings. Poland If the document cannot be delivered because the address of the addressee was not known by the plaintiff from the beginning, the court return the summon. In the situation, when palintiff put the correct address, but addressee is absent, delivery can be done only to custodian, set up by the court in execution the petition of interested person, till the moment of found of the party of its representative or proxy. In the situation when the party change the address and did not inform the court, the document turned on the result of impossibilities of the delivery is put in the files of matter with the result of the delivery Portugal In addition to what was mentioned in the previous point, if it is not possible to notify the defendant according to the normal way of notification, he will be notified through the publication of edits (arts. 248.º and 249.º of the P.C.P.C.). Romania According to the article 95 of the Civil Procedure Code, when the Claimant proves that he couldn’t find out the domicile of the addressee, the president of the Court orders the display of the summons at the headquarters of the Court and, if necessary, the publication of the order in the Official Gazette of Romania or in a widespread newspaper, at the expense of the Claimant. Such display/publication equals service of the documents. Slovenia Legal consequences of the non-service of the documents, because the addressee is not found, although his domicile is known are described under answer no. 2.

In cases where addressee’s domicile, despite information from public registries and administrators of personal data, could not be determined, the Court will appoint a temporary representative to such party, in accordance with Articles 82 till 84 of the Civil Procedure Act. Article 82 of the Civil Procedure Act in paragraph 2 determines (inter alia) that the Court shall appoint a temporary representative to the party especially when a domicile of a defendant is unknown and the defendant is without

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legal representative or when the defendant lives abroad, is without legal representative in Slovenia, due to which the delivery of the documents could not be performed. In both cases temporary representative is appointed only when the Court determines that the appointment of (permanent) legal representative will take too long, which would have damaging consequences to either of the party. Temporary representative is appointed by the decision of the Court among lawyers, notaries or other competent persons. If during the proceedings circumstances justifying the appointment of temporary representative arise, the Court will also, upon the request of either of the party, appoint such representative (Article 82, paragraph 6 of the Civil Procedure Act). The Court’s decision on appointment is published in the Official Journal of the Republic of Slovenia, on bulletin board of the Court and also by other appropriate means, if this is deemed necessary (Article 84 of the Civil Procedure Act). Slovakia See above – possibility of appointing a guardian

Finland

Sweden Cases where the addressee´s domicile is known but he is not found there: According to DL § 35, in cases where service by process-server fails because the addressee has not been found, the document may be delivered to an adult member of the addressee´s household and who is found in the domicile or in immediate vicinity of this. When an addressee is sought for service of documents at his or her workplace but is not found there during regular business hours, the document may be delivered to his or her employer (DL § 36). Transmission of the document to a person other than the addressee shall, however, be allowed only if the other person consents to it and he or she is not the counterparty of the addressee in the same case or matter (DL § 34). Substituted service has been performed when the document has been delivered and the addressee has been informed of the service (DL § 39 para. 2).

If it is not possible for a process-server to use substituted service according to DL §§ 34-36 and it can not be ascertained where the addressee is staying and there is reason to believe that the addressee has absconded or otherwise is hiding, the document can be submitted where the addressee has his domicile or in a suitable place adjacent to his domicile (DL § 38). In such a case there is also a possibility to use service by proclamation (DL § 48). At service by proclamation the document is deemed to have been served when two weeks have passed from the decision on the service and the proclamation and other actions have taken place in the right time (DL § 51). Cases where the addressee´s domicile is not known:

Service by proclamation may be used if the addressee´s domicile is unknown and it not can be made clear where he is staying (DL § 48 para. 1).The document is deemed to have been served when two weeks have passed from the decision on the service and the proclamation and other actions have taken place in the right time (DL § 51).

United If it comes to the attention of someone that they have not received legal documents Kingdom they are entitled to receive, they may take action to ensure they do receive such process by either contacting the other party or their solicitors or by contacting the court. If orders or judgments have already been made in the proceedings, applications can be made to set them aside on the basis that the documents have

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not been served.

4.14.5.2 Conclusions

 There is no a single common rule to Member States. Solutions given by each of them differs so much that make impossible to establish a common conclusion applicable to all of them.

4.14.6 Circumstances under which the documents may be deposited at the court in national service of documents 4.14.6.1 Comparative table

MEMBER Circumstances under which the documents may be deposited at the court in STATE national service of documents Austria In case of Service by public announcement Belgium Not known. Bulgaria Where the respondent cannot be found at the address named under the case and a person willing to accept the communication cannot be found, the server shall post a notification on the door or on the mailbox, and where no access is afforded thereto, on the front door or in a conspicuous place around the front door. Where the mailbox is accessible, the server shall place a notification therein as well. The notification shall state that the papers have been left at the office of the court, where service is effected through a court official or a private enforcement agent or, respectively, at the municipality, where service is effected through a municipal official, as well as that the said papers can be claimed there within two weeks after the posting of the notification. (Art. 47, Para 1 and 2). Czech According to article 46c of the Civil Procedure Code – there are obstacles to serve to Republic the participant and he or she do not respond to the court´s command to name a guardian for delivery According to article 49 of the Civil Procedure Code – the document shall be served to the proper hands only and the addressee was not reached – unless the delivery was effectuated by post.

Estonia Depositing documents at the court is not enough for the documents deemed to be served. Germany A service of documents by public notification may take place according to sec. 185, if 1. the addressee’s (a person) domicile is unknown and there is no authorised agent or proxy OR 2. a commercial company, obliged to file the address to the company’s register, is not contactable under the registered address or under any other address known to the public (without research) OR 3. [refers to international service of documents] OR 4. if a service of documents had to take place in the extra-territorial addressee’s domicile. Greece If the address of the addressee is unknown, service is effected to the district attorney of the court where proceedings is pending or which issued the judgment to

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be served. At the same time a summary of the document to be served is published in two daily newspapers (one of them in Athens and the other at the Court’s area, mentioning the names of the parties and other details. Whoever wants to serve a document to a person of unknown address may publish invitations to newspapers, inviting whoever knows the whereabouts of the addressee to provide in writing such information. Spain According to art. 155, only when the procedural parties are represented through

Court representatives. France This is not possible according to French Law.

Ireland None

Italy Documents may be deposited at the court in cases where it is provided for by statute, within certain deadlines (eg. when requesting safeguard or provisional measures, interim measures procedures, or in case of special form of procedures like labour proceedings) Cyprus

Latvia Pursuant to Section 56 (3) of the Latvian Civil Procedure Law, upon the court’s

discretion the court may summon the addressee to receive the documents at court. Lithuania

Luxembourg According to article 15 of the communication of Luxembourg about the regulation (CE) n°1393/2007, if there is no reciprocity with another Member State concerning the national service of documents, the documents shall be deposited at the designated central body in each Member State which in Luxemburg is the prosecutor general's office. Hungary In case of by public notification. (See Sections 101-102 and Section 99(5) of the Hungarian Code on Civil Procedure) Malta Documents may be deposited in court by any person to whom such documents may have been served in error (i.e. when such person was not the intended addressee). Netherlands After the bayliff has registered the writ at the court, the proceeding is adjucated. (Article 125 CCP). Other documents will be handed over in the proceedings. Poland Unknown circumstances

Portugal In the cases mentioned in the answer to the previous question nr. 4.

Romania According to the article 95 of the Civil Procedure Code, the serviced documents may be displayed at the headquarters of the Court when the Claimant proves that, despite his serious efforts, he couldn’t find out the domicile of the addressee. Slovenia There are no such options under the Civil Procedure Act.

Slovakia According to § 47 (4) CPC: “If it is not possible to deliver to a natural person who is not an entrepreneur at the address of its permanent place of habitation or its temporary place of habitation, and it is not possible to determine the place, where the person accepts delivered papers, and it is not possible that an installed curator/guardian would represent the person, the court decides that papers addressed to this persons will be delivered by their deposition in the court´s proceeding files. This decision is to be published on an official notice-board of the

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court until a final conclusion of the proceeding. The papers deposited in the files are considered delivered seven days after they are produced” Moreover: According to: § 49 (3) CPC: “If any document to be served personally is returned to the sending court from the place notified as the delivery place by the party to the proceeding, or from the place of his residence as registered under special regulation or from a representative designed for the service of documents as undelivered, the court may serve all further documents into the proceeding file with the effect of the delivery on the seventh day after the sending of a copy of the document at the mentioned address according to paragraph 4” § 49 (4) CPC: “If a party to the proceeding is served with documents into the proceeding files with the effect of delivery, copies of such documents shall be sent to the party with the notification, that the document is considered delivered on the seventh day after this mail is sent. Not accepting of this mail has no effect on the effects of the delivery.” Finland

Sweden At so called service by proclamation an authority, for example a court, can decide that a document will be available for a certain time at the authority or another place (DL § 47). United Not known Kingdom

4.14.6.2 Conclusions

 There is no a single common rule to Member States. Solutions given by each of them on ground of possibility of serving the document depositing it at the Court differs so much that make impossible to establish a common conclusion applicable to all of them.

4.14.7 Grounds on which the faulty delivery may be rectified 4.14.7.1 Comparative table

MEMBER Grounds on which the faulty delivery may be rectified STATE Austria In case errors occur during the service procedure, service is still considered to have been made as soon as the document has actually been received by the addressee (§ 7 SDA). According to § 477 CCP, notifications effected not in accordance with the SDA or CCP and lead to the lack of proper defence shall be held null and void. Belgium By sanction of nullity, the record of service needs to mention certain elements (art. 43 and 860 Civil Code). Some of these elements nevertheless render the service only null and void if the interests of the party who invokes them are affected (art. 861; the exceptions are mentioned in art. 862). The nullity does also not rise if procedural documents show that the result intended by the law is obtained or if the non-mentioned form was taken into account (art. 867). There is extensive case law on this subject

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Bulgaria Upon receipt of the communication by the other person, service shall be presumed effected upon the addressee. The addressee may move for resumption of the time limit if the addressee was absent from the address and was unable to learn of the service in due time. The time limit referred to in Article 64 (2) herein shall begin to run as from the time when the addressee was able to learn of the service. (Art. 46, Para. 4) According to Art. 54 if there are any non-conformities upon the service, the said service shall be presumed effected at the time at which the communication actually reached the addressee. Czech There is no such legal regulation in the Czech Republic. Republic

Estonia If a document reached a participant in a proceeding on whom the document had to be served or on whom the document could be delivered pursuant to law but there was no possibility to certify the delivery, or if the procedure for service provided by law was violated, the document is deemed to be served on the participant in the proceeding as of the time the document actually reached the recipient (CCP § 307(3)). Germany A service of documents that does not comply with the law, is regarded to be valid at the time the proper addressee receives the document (sec. 189). This rule does not apply, if a service of documents according to sec. 166 to 195 was not intended at all. Greece There is no way to rectify faulty delivery itself. However the addressee who has a legal interest may appeal against the judgment rendered by his default (due to the faulty delivery) on the grounds of such faulty delivery. If the person notified, summoned or ordered to attend is aware of the case and fails to report the fault of the service in his first appearance before the court, the faulty service shall take full effect, as if it had been served in accordance with the law. Spain According to art. 166, notices which are not made in accordance with the provisions in this chapter and may lead to the lack of proper defence shall be null and void. However, when the person notified, summoned or ordered to attend is aware of the case and fails to report the nullity of the notice procedure at his first appearance before the court, from that time, the notice shall take full effect, as if it had been served in keeping with the law. France Two different ways can be mentioned and can be found in the general section entitled “Pleas of nullity”: The first is article 112 : “The plea of nullity of pleadings may be raised as and when they are served; but it will be waived if the one who raises it, has, subsequent to the impugned pleading, presented his defence on the merits of the case or raised only the plea of non-admissibility without raising the plea of nullity ». The second is article 115 : « The nullity may be avoided by a subsequent straightening out of the pleading if no foreclosure has already intervened and if the straightening out has succeeded to avoid all prejudice ». Ireland Generally, where all reasonable attempts have been made to serve documents an order deeming effective service may be granted. Italy Service shall be invalid if the provisions regarding the person to whom the copy must be delivered are not observed (the document is not delivered to the addressee or is delivered to a place or person that is unrelated to the addressee), or if there is total uncertainty about the person to whom delivery has been made or about the date of delivery (section 160 of the Code of Civil Procedure). Only a notification that is null and void rather than one which is non-existent for legal or practical reasons can be remedied. Nullity of a notification can be remedied with ab initio effect if a repeated attempt is

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successful or if the object pursued is attained anyway. For example, if the addressee enters an appearance to defend his case, the nullity of notification of the writ is automatically remedied Cyprus

Latvia If during the adjudication of the matter the court establishes that the summons has not been served properly (e.g. served at wrong address), the court is obliged to postpone adjudication of the matter and ensure proper serving of the summons (Sections 209 and 211 of the Latvian Civil Procedure Law). Lithuania

Luxembourg The only possibility to rectify a faulty delivery is to issue a new corrected act and serve it again. Besides, according to article 264 NCPC, a writ can be declared null and void because of non-compliance with the formal rules. Hungary A petition for challenging the presumption of service may be submitted alleging that the petitioner was unable to accept the official document through no fault of his own: a) stating that service was carried out in violation of the provisions of specific other legislation on the service of official documents, or it was illegitimate for other reasons, or b) stating that he was unable to collect the document for reasons not covered by Paragraph a) (e.g. for being unaware of the attempted service for reasons beyond his control). (Section 99/A-99/B of the Hungarian Code on Civil Procedure) Malta In terms of art. 192, where a party has been served with documents which were not properly drawn up, that party shall be entitled to have another copy made in conformity with the law at the expense of the person who prepared the irregular copy, provided that the request for such other copy be made to the registrar by the party concerned within two days after the delivery of the irregular copy; and in any such case, if a time is fixed, it shall not commence to run except on the delivery of the regular copy. Netherlands According to art. 66 par. 1 CCP notices which are not made in accordance with the provisions in this chapter will only be null and void if the addressee is unreasonable harmed in his defence. However, when the person notified, summoned or ordered to attend is aware of the case and fails to report the nullity of the notice procedure at his first appearance before the court, from that time, the notice shall take full effect, as if it had been served in keeping with the law. Article 66 par. 2 CCP: a defect in the writ which leads to a null and void writ, can be rectified in a new writ, except in cases the law decides otherwise. Poland If the court made a mistake with delivering the document it can be rectified by court in any time. Court can issued a decision to repeat delivery. From the point of view of the party the faulty delivery can become a demurrer in the revocatory procedure Portugal The defendant’s notification is null in the cases mentioned in the art. 195.º of the P.C.P.C. and when it was made failing the observation of the legal formalities (art. 198.º of the P.C.P.C.). According to the art. 201.º of the P.C.P.C., when a procedural act is annulled, only the following acts that absolutely depend on it will be annulled too. And the nullity of a part of an act does not imply the nullity of the others parts of the same act that are independent of the first one. If the defendant does not present any opposition and does not constitute legal representative and does not practice any act in the process, the Court must check if all the legal formalities were observed and if it concludes they weren’t, the notification must be repeated (art. 483.º of the

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P.C.P.C.). Romania The proof of the service is the acknowledgement of receipt signed by the addressee and certified by the court representative or the minute conclude by this representative. If such proof does not exist in the court file, the service procedure is considered faulty and must be repeated. The Court is not entitled to judge the case until the service procedure is legally done. However, according to the art. 89 of the Civil Procedure Code, the presence of a party in Court, at the hearing, covers any vice of the service procedure.

Slovenia If the delivery is faulty, but the party has nonetheless received the document, the addressee cannot claim the breach of rules on service of documents. The document is deemed to be served on the day the addressee has actually received the document (Article 139, paragraph 6 of the Civil Procedure Act). Slovakia No special regulation.

Finland

Sweden Before Swedish courts there is discretion in the testing and appraisal of evidence. If it can be determined that a person has been served with a document, it is irrelevant whether the prescribed procedure was followed. However, if the addressee has not received the document and the rules concerning service have not been complied with, there may be grounds for setting aside judgement through exceptional procedures.

United Not known. Kingdom

4.14.7.2 Conclusions

 All Member States admit the possibility of considering the document formally served if it reaches the addresee, independently if the prescribed procedure is followed or not.  The possibility of making new attemps is regulated in Italy, Latvia, Malta and Poland.

4.14.8 Service of docunents on the legal representative 4.14.8.1 Comparative table

MEMBER Whenever transnational service of documents is necessary because the STATE addressee is domiciled abroad, may your Member State avoid application of the service regulation by "serving" the document on the legal representative of the defendant´s domicile in your Member State? Austria Cases may arise. It has to be mentioned, that according to § 98 CCP parties and persons involved not having a domestic place of delivery may be ordered by the authority to name an authorized recipient within a period of a minimum of two weeks for a certain procedure pending with the authority. If the party resp. the person involved does not observe the order within the period, service is to be made by sending without

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receipt of service document till an authorized recipient is named or the domestic place of delivery is communicated to the court; service shall be deemed to have been effected 14 days after posting has taken place; reference to this legal consequence is to be made in the order. Belgium Yes: the addressee can and sometimes must choose a domicile on our territory (art. 39). Service to this chosen domicile (mainly the office of a legal representative) is then necessary: a transnational service is deemed invalid (art. 40) Bulgaria The general principle is laid down in Art. 39, Para. 1: Where the party has named a person for service of communications in the seat of the court (a legal addressee), or where the party has an attorney-in-fact for the case, service shall be effected upon the said person or upon the attorney-in-fact. The redaction of the rule can be interpreted as following: if the party has named person for service of communications or where the party has an attorney-in-fact, the court serves the documents upon the said persons. According Art. 41, Para 1 any party, who is absent for more than one month from the address which the said party has communicated under the case or whereat a communication has been served thereon once, shall be obligated to notify the court of the new address thereof. The same obligation shall furthermore apply to the legal representative, the curator and the attorney-in-fact of any such party. Upon failure to comply with the obligation referred to in Paragraph (1), all communications shall be filed with the case records and shall be presumed served. The said persons must be warned of these consequences by the court upon service of the first communication. (Art. 41, Para. 2). Czech In cases where the defendant granted the representative power of the attorney, then Republic yes the delivery to the representative would be not only sufficient but according the national legal regulation the only option. Estonia Derived from CCP § 316(5) the service of documents under the Regulation is performed the same way as the service if the Regulation would not apply, except that the public service is not possible and unless the Regulation explicitly states otherwise. CCP § 318 allows documents to be served to the legal representative of the person being served. Germany If a legal person is non-triable or if it is a juristic person, the legal representative (or one of them) ist the correct addressee (sec. 170). In any event an authorised agent may be the addressee instead of the principle (sec. 171). In trial the authorised proxy is the correct addressee instead of the party (sec. 172). These rules apply irrespective of the addressee’s domicile. The court may order that the addressee domiciled abroad may name a resident authorised agent; if the addressee fails to do so, further service of documents may be executed by postal service; it is deemed to have been served after two weeks; period subject to court’s discretion (sec. 184). Greece No

Spain The service of documents on the legal representative of the defendant is deemed

to have been effected on the defendant himself. And not only on his legal representative, but on his Court representative.

France Yes, because according to article 652, « Where a party has appointed a person to represent him in court, the processes that are directed to him will be notified to his representative, subject to special rules for notification of judgments ».

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Ireland Presence in the jurisdiction is the determinative connecting factor in establishing traditional domestic jurisdiction. As such, domicile is irrelevant. It does not appear possible to serve on representatives in the state where the defendant is not present in the state. Nevertheless it may be possible to apply for an order of substituted service permitting service by alternative means, such as ordinary post, on foreign defendants. Italy According to section 142 of the Code of Civil procedure, the act or document is serviced to the addressee by registered letter. A copy is sent to the Public Prosecutor’s Office for its transmission to the Ministry of Foreign Affairs which in its turn will forward it to the addressee. This modus operandi only applies if it is not possible to carry out the service of documents in accordance with the rules and procedures established by international conventions. Cyprus

Latvia Documents may be served to the defendant’s legal representative domiciled in our Member State only upon request of the defendant. Lithuania

Luxembourg According to article 155(2) NCPC, the application of the service regulation can be avoided if the addressee located abroad accepts to elect domicile at his legal representative in Luxembourg. Hungary As a general principle, Hungarian procedural law relies on a large extent on agents on service of process, that is, the party is normally requested to appoint an agent on service of process the judicial documents can be delivered to. In such a case there is no need for service abroad, because the court delivers the document to the agent for service of process. (See Section 100/A of the Hungarian Code on Civil Procedure) Malta Service of documents may be effected, in Malta, on a representative of a party residing in another Member State (to which the the Service of Documents Regulation applies) only if such representative has been appointed by the party himself; official (court appointed) curators should not be appointed in such cases because the party is not technically absent since he is residing within the European Judicial Area. However official curators are appointed when the party’s domicile is unknown.

Netherlands The Supreme Court decided in december 2009 (LJN: BK 3078) that serving in

appeal and cassation may take place at the office of the attorney in first instance (in the Netherlands). The Supreme Court founded his decision on considerans nr. 8 of the Regulation. The Supreme Court decided that the service at the office of the attorney is similar as the service at the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party. This decision is remarkeble because the service at the office of the attorney is not a service to a chosen representative in Dutch procedural law. A chosen domicile has to be concluded in a written agreement between the party and the attorney. The advocate general of the Supreme Court advised to put preliminary questions to the European Court but surprisingly the Supreme Court considered considerans nr. 8 was clear enough. Poland If the addressee, who is domiciled abroad, established legal representative, the documents are served to this representative in the Member State. Portugal The rules that regulate this matter do not preview any special solution to this special case.

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Romania According to art. 87 point 8 of the Civil Procedure Code, if the addressee is domiciled abroad, the service or documents shall be done by rregistered letter, with acknowledgement of receipt. However, if the addressee has a legal or conventional representative, the service of documents is considered legal when it is done directly to the representative. When the residence of the person living abroad is not known and the claimant proves that, despite his serious efforts, he could not find the defendant’s domicile, the judge orders the display of the documents at the headquarters of the Court and, if necessary, the publication in the Official Gazette of Romania or in a widespread newspaper. Moreover, the Law no. 189 of 2003 regarding the international judicial assistance in civil and commercial matters recognizes the possibility of the service accomplished by the Romanian Ministry of Justice. According to the art. 5 of the Law no. 189 of 2003, the Romanian Ministry of Justice sends the documents or the summons: by post, with acknowledgement of receipt, directly to the addressee; or to the responsible central authority of the respective Member State – the acknowledgement of receipt is represented by an official form filled in by the Romanian Ministry of Justice and attached to the documents sent-; or to the or consular post of Romania from the respective Member State – the acknowledgement of receipt is represented by an official form filled in by the Romanian Ministry of Justice and attached to the sent documents. Slovenia Under the Article 146 of the Civil Procedure Act, when the party of the proceedings or his/her legal representative lives abroad, he/she has to appoint a representative for service of the documents at the time of lodging a lawsuit. If the defendant lives abroad, he/she will have to appoint a representative upon first delivery of the documents. The representative for service of the documents has to be domiciled in Slovenia. If the party does not appoint such representative, a representative is appointed by the Court at the expense of the party until the party appoints her own representative.

Slovakia Yes. According to the § 49 (1) CPC: “Where the party has a representative with full power of attorney, documents will be served only on the representative. However, if the document instructs the party to perform an act in the proceedings, it will be served both on the party and his representative.“ The provision does not draw a difference between a party domiciled in Slovakia or abroad. Finland

Sweden A representative of the addressee who is entitled to represent the addressee in the matter in question may be served on behalf of the addressee. United (1) The court may, on application, permit a claim form relating to a contract to be Kingdom served on the defendant’s agent where – (a) the defendant is out of the jurisdiction; (b) the contract to which the claim relates was entered into within the jurisdiction with or through the defendant's agent; and (c) at the time of the application either the agent’s authority has not been terminated or the agent is still in business relations with the defendant.

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4.14.8.2 Conclusions

 Service of documents on the legal representative of the addresee is admitted in France, Belgium, Bulgaria, Estonia, Austria, Luxemburg, Czech Republic, Germany, Spain, Latvia, Hungary, Malta, Poland, Romania, Slovenia, Slovakia and Sweden. However, requirements and conditions are different:

o It is necessary a previous appointment by the addressee: Malta and Poland o Only upon request of the defendant: Latvia o Need of appointment of a legal representative after first delivery: Germany and Slovenia. o In the Netherlands the service at the office of the attorney is considered to be similar to the service at the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party. This decision is remarkeble because the service at the office of the attorney is not a service to a chosen representative. A chosen domicile has to be concluded in a written agreement between the party and the attorney.  Service of documents on the legal representative of the addresee is not admitted in Greece and Ireland.

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5 STUDY METHODOLOGY

5.1 Input Collection-Methodology In order to measure the application of the Regulation, the team has based its input collection strategy on:

5.1.1 European Experts

One of the main inputs that have served as a basis to support and build the analysis of the findings described in section 4 is the one formed by the information and opinion provided by selected European experts, from two different perspectives:

 Reports on current national rules that govern the service of documents in each Member State, as well as the description of the different types of service, paying special attention to the electronic transmission and the party-to-party service. The reports fulfilled by the 32 experts can be found in Annex 1 together with the cases where the information has been filled in by our researchers and validation has been requested to the experts (Austria, Finland, Luxembourg, Netherlands and Slovenia).

Information obtained in these reports has been incorporated to the Final Report through the comparative tables introduced in each point of the Study Findings. This method has the unquestionable advantage of the clear identification of the synergies between different legislations, together with the main differences that may generate dysfunctions in the proper functioning of the Service Regulation.

 Questionnaires on the practical application of the Regulation, aiming to identify, if possible, standard rules on service of documents, common to different Member States that may be extrapolated to the cross-border service of documents and, taking profit of the synergies with the national systems, make the service of documents within the territory of the European Union faster and more efficient. The questionnaire addressed also the differences, similarities and synergies between the previous Regulation and the modes of service stipulated in other legal instruments. This expertise has been incorporated to this document, following the same methodology as the one described in the previous paragraph.

The fulfilled questionnaires can be found in Annex 2.

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5.1.1.1 Information gathering procedure

5.1.1.1.1 Targets

The objective was to incorporate comments based on the expertise of academic and private experts known to the UBC Legal Team, as well as the point of view of the members of the EJN contact points. Regarding the EJN members, they finally decided to fill in the online survey referred in next section. Thus, the 29 questionnaires incorporated in Annex 2 do not include the expertise from the European Judicial Network. Due to the undeniable value of the comments received from the EJN, these ones have been analyzed separately, although due to the confidentiality granted to the respondents of the on-line reports we are not allowed to identify them.

5.1.1.1.2 Questionnaires

Two questionnaires have been developed with two purposes: facilitating the return ratio and obtaining more focused opinions:

• The first questionnaire was created in PDF to allow an easy and quick fulfillment and facilitate the return ratio.

• However, after a first analysis, it became clear that respondents would only select the options but not really provide their opinion. Therefore, a second questionnaire was created with the purpose of additionally requesting them simply to validate/reject several conclusions we had already acquired from the first inputs received.

5.1.2 Global Survey

The main objective of this survey was to assess, in an objective and unbiased way, the practical application the Regulation across the Member States. Another important objective of this survey was to obtain suggestions and proposals for improvement, as well as an idea of the major obstacles or problems that the new Regulation has to overcome to become more operative. This feedback has been provided via the free text (narrative comments) fields that were included in the questionnaire form. The selection criteria for the participants in the survey were individualised for each Member State, as each of them have different judicial structures and a different distribution of spheres of competence. This criterion included not only judicial servants, but also those that, although not

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directly belonging to the Justice Administrations of each Member State, do cooperate with them, as well as law professionals that due to their specific specialization are involved in the application of the Regulation. The main starting point was determined by data contained in the Manual and the Consolidated version of the Communications. These documents provided us with highly relevant information from the very outset: » Transmitting Agencies by Member State (Consolidated version of the Communications)

» Receiving Agencies (Manual) Another selection criterion used was to find the professionals in each Member State using as many available channels a possible: European Judicial Network, University Networks, professional associations, internet searches according to their experience in relation to Regulation 1393/2007 and their availability to provide us with their valuable opinion. In this way we prepared a selection of people to interview that was not only representative, but also complete, since not only liberal professionals such as attorneys and Huissiers de Justice are included, but also public servants belonging to national administrations, from officials through people such as secretaries to judges and academicians. Finally we managed to count on a database of more than 13.000 contacts that can be found in Annex 3.

5.1.2.1 Targets for the Survey The selection of respondents had to be representative. Consequently, the Member States and the professions involved in the application of the Regulation had to be covered adequately and proportionally and, in order to do so, we set the following targets for the survey: » Geographical criteria: we had to obtain a minimum of 450 survey answers covering of all 27 Member States. At the time we started analysing the results more than 465 answers had been received. A minimum reference value was set for each Member State: 10 interviews .Larger countries could obviously provide more responses than others and, in their case, the value set was of 25. Note: the targets mentioned above were almost achieved. The most significant exceptions concern Italy and Poland. The main obstacles to achieve the targets were the lack of knowledge of the Regulation and the lack of practical experience applying it. » Qualitative criteria: We also considered that all professions involved in the application of the Regulation had to be addressed, and therefore several targets were set: a minimum of 150

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transmitting/receiving agencies and of 200 of other professions directly or indirectly involved in the service of documents, from an active or passive position.

These targets have been achieved since more than 465 answers have been gathered with a high participation of the transmitting/receiving agencies as well as of other involved activities.

5.1.2.2 Groups of Professionals It was decided to break down the various legal professionals using the following segmentation: 1. Solicitor/Barrister 6. Public notary 2. Judge 7. Court clerk 3. Attorney 8. Lecturer/Professor 4. Bailiff 9. Institution 5. Legal assistant 10. Others The following Groups of professionals were defined for the statistical analysis, particularly with the purpose of identifying any potential relevant difference:

Segmentation Description

Group 1 1 Solicitor/Barrister

5 Legal assistant

6 Public notary

Group 2 2 Judge

3 Attorney

4 Bailiff

7 Court clerk

Group 3 9 Institution

Group 4 8 Lecturer / Professor

Group 5 10 Others

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5.1.2.3 Information gathering procedure The following procedure was followed: 1. Creation of Questionnaire addressing mainly the aspects of the application of the Regulation directly relevant to our Study. 2. Sending invitations to the entire sample together with an introductory letter from EC DG Justice to more than 13.200 contacts.

3. Constant monitoring its completion. This was carried out mainly via e-mail. 4. Reception and consolidation of data. This step was carried out without applying any corrective factor depending on the country or profession. All answers received have contributed to the final result having the same influence or weight on the final result.

Due to the fact that the initial response turned out to be considerably smaller than that expected, other measures had to be implemented in order to reach the target levels, such as sending reminders and finding contact points that could help with the internal distribution of the questionnaire. Finally, the participation turned to be active although very irregular depending on the Member States.

5.1.3 Central Bodies

The e-mailings and phone calls were the main means used for the collection of the statistical data concerning the transmission and service of documents. This information was sought by means of the questionnaire shown in 5.3.1 that was addressed to the Central Authorities of all Member States. In the case of Germany, it was sent only to the Federal Ministry of Justice which coordinated the answers of the various central authorities. In other cases, due to the difficulties in finding the right contacts, we have addressed the request to the members of the European Judicial Network. The starting point to initiate the contact was the information provided in the Consolidated version of the communications of the Member States. All Central Bodies have provided some kind of information at the time this report was drafted, except for UK-Gibraltar. In many cases, the data collected is limited due to specific internal structures. All received comments, explanations and clarifications have been included.

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5.1.3.1 Objectives The main objective was to perform a quantitative analysis on the number of documents served in accordance with Article 4 of the Regulation from each of the 27 Member States in which the Regulation applies (i.e. including Denmark) to every other Member State in two years (2009 and 2010). Also, the average amount of time required for the service of documents from each Member State to every other Member State has been –as far as possible- specified. Other objectives were the identification of the reasons (cases) of returned requests, the main types of services used and the entities. Overall, the information requested was very specific, deep and detailed. In many cases, the Central authorities could not provide this information, and therefore, they have been requested to provide as much as it was available.

5.1.3.2 Information gathering procedure In first place, this information was sought from the Central Bodies of each Member State as per the consolidated version of the Communications from Member States. In the cases were, after an intense effort to find the right contacts, it became impossible to receive any answer through the first channel, we contacted the members of the European Judicial Network to make sure the data-gathering was as complete as possible. The campaign to find the right information sources and gather the information lasted several months. Procedure:

• Compilation of Questionnaire relating to the content of the Regulation, and allowing for later cross-data questioning for each Member State as a receiving agency, and allowing Central Bodies or other selected bodies to supply the requested data in. Such data is of a quantitative and temporal nature, showing not only the approximate number of documents served to every other Member State during 2009 and 2010, but also the average amount of time required for the service of documents from each Member State to every other Member State.

• Sending of Questionnaire (s) to Central Bodies and administrations of the Member States via E-mail.

• Monitoring its completion. This was done via e-mail and telephone conversations. This monitoring has requested intense efforts on our side and several obstacles needed to be overcome: mainly language barriers, outdated information and the fact that many Member States do not keep statistical information.

• Reception and consolidation of data.

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5.2 Global Survey

5.2.1 Survey form

SURVEY ON THE APPLICATION OF REGULATION 1393/2007

1. GENERAL KNOWLEDGE OF REGULATION 1393/2007 From your experience, is the existence and application of the Regulation (link to http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R1393:EN:HTML generally known by legal agents (judges, lawyers, bailiffs, huissiers de justice...)?

 Yes, without doubt  Yes, enough  Not too much  Not at all  Difficult to say

2. SPEED OF TRANSMISSION AND SERVICE (Article 4 and Article 7) From your experience, is transmission and service of documents between Member States today faster than before the Regulation entered into force?

 Yes, much faster  Yes, faster  Varies between MSs, but generally speaking much faster  Varies between MSs, but generally speaking faster  No, not faster  Difficult to say

Please provide any further comment or suggestion

3. TRANSMITTING AND RECEIVING AGENCIES (ARTICLE 2) Which problems, if any, has the introduction of direct transmission of documents between local bodies caused?

 None  Often local bodies are still not familiar with the Regulation  Communication between transmitting and receiving agencies does not work well (requests are not answered, language barriers, etc.)  Receiving agencies with no territorial jurisdiction do not forward the document (to the receiving agency with territorial jurisdiction in the same MS)  Finding contact details of receiving agencies is difficult despite information in manual  Others. Could you please specify which ones?

Please provide any further comment or suggestion

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4. CENTRAL BODY (ARTICLE 3) From your experience, how effective are central bodies in supplying information to the transmitting agencies and seeking solutions to difficulties which may arise during the transmission of documents for service?

 Very effective  Effective  Varies between MSs, but generally speaking rather effective  Varies between MSs, but generally speaking rather ineffective  Not effective  Difficult to say

Please provide any further comment or suggestion to improve coordination.

5. FORMS (Articles 4, 6, 7, 8, 10, Annex) Which problems, if any, are you aware of or have you encountered concerning the forms provided for by the Regulation for transmission of documents?

 None  Forms are not filled in correctly or not completely  Forms are filled in by hand and cannot be read  Only forms copied from the publication in the Official Journal are accepted  Date is not filled in  Language requirements for completing forms are not complied with  Forms are not used at all (in particular acknowledgment of receipt)  Others. Could you please specify which ones?

Please feel free to give further explanations such as possible reasons or make proposals.

6. INFORMATION OF RIGHT TO REFUSE TO ACCEPT A DOCUMENT (ARTICLE 8)

Article 8 provides that the receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the MS addressed or, if there are several official languages in that MS, the official language or one of the official languages of the place where service is to be effected.

In cases where the addressee understands the language of the MS of transmission: Is the possibility to serve documents in a language other than the official language(s) of the MS addressed used?

 Yes.  No. Could you please specify why not?

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Which problems, if any, has the application of Article 8 caused?

 None  Receiving agencies do not always inform addressee of right to refuse to accept the document  Receiving agencies never inform addressee of right to refuse to accept the document  Other problems connected with information of addressee of right to refuse to accept the document  Problems connected to fact that there is no time period in the Regulation within which addressee can refuse to accept document

Please feel free to give further explanations or make proposals

7. DATE OF SERVICE (ARTICLE 9) Which problems, if any, has the application of Article 9 caused?

 None  Date of service is difficult to establish in some cases  Declarations of MSs are not clear  Others (please specify): Free text

Please feel free to give further explanations or make proposals

8. COSTS OF SERVICE (ARTICLE 11) Article 11 provides that the service of judicial documents coming from a MS shall not give rise to any payment or reimbursement of taxes or costs for services rendered by the MS addressed. The applicant shall pay or reimburse the costs occasioned by the employment of a judicial officer or of a person competent under the law of the MS addressed; or the use of a particular method of service. Costs occasioned by recourse to a judicial officer or to a person competent under the law of the MS addressed shall correspond to a single fixed fee laid down by that MS in advance which respects the principles of proportionality and non-discrimination. MSs shall communicate such fixed fees to the Commission.

Which problems, if any, has the application of Article 11 caused?

 None  Problems due to high fees in some MSs  Problems due to the fact that payment of fees in advance is requested in some MSs  Problems due to lack of transparency concerning calculation of costs in some MSs where fees are not fixed, but vary depending on circumstances of individual cases  Problems due to the fact that fees are charged also in cases where legal aid has been granted to applicant in some MSs  Problems of communication with entities charging fees  Others. Could you please specify which ones?

Please provide any further comment or suggestion.

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9. SERVICE BY POST (ARTICLE 14)

Article 14 provides that Each MS shall be free to effect service of judicial documents directly by postal services on persons residing in another MS by registered letter with acknowledgement of receipt or equivalent.

From your experience, are documents frequently served directly by post?   Yes, very frequently  Yes, more frequently than service through a receiving agency  No, rather exceptionally  No, never  Difficult to say

Which problems concerning postal service have you encountered or are you aware of?

 None  Acknowledgement of receipt is not filled in completely (.e.g. date is missing)  Acknowledgement of receipt is not returned  Signature on acknowledgement of receipt cannot be read  Others. Could you please specify?

Please feel free to give further explanations or make proposals.

10. DIRECT SERVICE (ARTICLE 15) Article 15 provides that any person interested in a judicial proceeding may effect service of judicial documents directly through the judicial officers, officials or other competent persons of the MS addressed, where such direct service is permitted under the law of that Member State.

From your experience, do persons interested in a judicial proceeding frequently provide service of documents directly through the judicial officers, officials or other competent persons of the Member State addressed?

 Yes, frequently. Could you please specify in which cases?

 No, not very frequently. Could you please specify for which reasons?

 No, never. Could you please specify for which reasons?

 Difficult to say

Please provide any further comment or suggestion.

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11. CONSULAR AND DIPLOMATIC MODE (Articles 12 and 13) Articles 12 and 13 provide that Each Member State shall be free, in exceptional circumstances, to use consular or diplomatic channels to forward judicial documents, for the purpose of service, to those agencies of another Member State which are designated pursuant to Articles 2 or 3; and that each Member State shall be free to effect service of judicial documents on persons residing in another Member State, without application of any compulsion, directly through its diplomatic or consular agents. Any Member State may make it known, in accordance with Article 23(1), that it is opposed to such service within its territory, unless the documents are to be served on nationals of the Member State in which the documents originate.

From your experience, do persons interested in a judicial proceeding frequently provide service of documents via consular or diplomatic mode?

 Yes, frequently. Could you please specify in which cases?

 No, not very frequently. Could you please specify for which reasons?

 No, never. Could you please specify for which reasons?

 Difficult to say

Please feel free to give further explanations or make proposals.

12. ELECTRONIC TRANSMISSION Article 7.1 provides that the receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State. .

From your experience, are documents frequently served by electronic means of communications in your Member State?

 Yes, very frequently  Yes, rather frequently  No, rather exceptionally  No, never  Difficult to say

Which problems concerning electronic service of documents have you encountered or are you aware of?  None  Acknowledgement of receipt is not filled in completely (e.g. date is missing)  Acknowledgement of receipt is not returned  Signature on acknowledgement of receipt cannot be read  Others. Could you please specify which ones?

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Please provide any further comment or suggestion.

13. RESTRICTIVE APPLICATION OF REGULATION 1393/2007 From your experience, after the first service of documents under Regulation 1393/2007, is compulsory in your Member State, to provide a national address for the subsequent services?

 Yes, very frequently  Yes, rather frequently  No, rather exceptionally  No, never  Difficult to say

Please provide any further comment or suggestion.

14. DIRECT CROSS BORDER SERVICE OF DOCUMENTS From your experience, and related to cross border service of documents, would it be admitted in your Member State the direct cross border service of documents by the person involved? (link: persons domiciled out of your Member State sending judicial or extrajudicial documents to a person domiciled in your Member State by postal channels, by electronic means of transmission such as fax, e-mail.... , by a third person or by any other mean of service of documents that allows proof of reception by the addressee) □ Yes □ No. Could you please briefly describe the reasons for not admitting the direct cross border service of documents?

From your experience, would it be recommendable to admit the direct service of documents?

□ Yes. Under which conditions?

□ No

15. ELECTRONIC CROSS BORDER SERVICE OF DOCUMENTS From your experience, and related to cross border service of documents, would it be admitted in your Member State the electronic service of documents by the person involved? (link: service of documents to persons domiciled in your Member State by electronic means such as fax or e-mail)

□ Yes □ No. Could you please specify the reasons for not admitting the electronic service of documents?

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From your experience, would it be recommendable to admit the electronic service of documents?

□ Yes. Under which conditions?

□ No

Example of possible conditions: attested by an acknowledgement of receipt, including the date of receipt, which is signed and returned by the defendant or without proof of reception but with previous acceptance of this method of service of the defendant, …)

16. FURTHER COMMENTS Please provide any further comment or suggestion.

Note: this survey form was translated to Greek, French, German and Spanish in order to make it easier for the participants to answer the questions.

5.2.2 Results of the global survey

This section shows the statistical results obtained through the Global Survey. Note: The statistical analysis has also been carried out according to the Groups defined in the following table.

Segmentation Description

Group 1 1 Solicitor/Barrister

5 Legal assistant

6 Public notary

Group 2 2 Judge

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3 Attorney

4 Bailiff

7 Court clerk

Group 3 9 Institution

Group 4 8 Lecturer / Professor

Group 5 10 Others

The following codes have been used for the countries

Austria-AT Belgium- BE Bulgaria-BU Czech Republic- CZ Cyprus-CY

Denmark- DK Estonia- EE Finland- FI France-FR Germany- GE

Greece- GR Hungary-HU Italy- IT Ireland- IE Latvia-LA

Lithuania-LT Luxembourg- LUX Malta-MT Netherlands- NL Poland-PL

Portugal- PT Romania-RO Slovakia-SK Slovenia-SI Spain - ES

Sweden- SE United Kingdom- UK

This section provides a selection of the narrative comments (translated into English) received in relation to each one of the questions which allowed the introduction of “free text” that in our opinion offer an overview of all the opinions and proposals received. The full set of narrative comments can be found in its original version in Annex 5.

Note: we have corrected some spelling errors but have tried not to modify the comments in order to avoid influencing the meaning of the original comment.

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5.2.2.1 General knowledge of the Regulation

QUESTION 1: From your experience is the existence and application of the Regulation generally known by legal agents (judges, lawyers, bailiffs, huissiers de justice...)?

Regarding the general knowledge of the existence and application of the Regulation 1393/2007, the majority, formed just by 37,4% affirms it is “not too much” known. However, a very similar percentage of 33,8% states that the knowledge is “enough” . It is evident the division of opinion of the respondents and the fact that there is no large majority.

General knowledge of Regulation 1393/2007 (n=465)

11,6%

169 33,8%

37 4% Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

Yes, without doubt

Yes, enough

Not too much

Not at all

Difficult to say

NA

5.2.2.1.1 Narrative comments 13,5% of the respondents included narrative comments in their answers in the free text field. Member State Q2A2 Organisation

France It is not quicker (or even less) because of an excessive formalism Lecturer/Profes due to the particularities of each country sor Belgium Some countries of the "South" take sometimes too much time to Bailiff transmit the documents to the addressee and to return the certificates of delivery. Germany Notification pursuant to Article 7 paragraph 2 (paragraph 13 of the Bailiff form) is often not sent. A form that allows the transmission point to remember after the one month period to the execution of the request would be helpful. Greece Especially the possibility of serving through bailiffs of the state in Attorney which the person to be served resides France It would be necessary to develop a secure electronic platform that Bailiff could be used by every legal agent to send and received documents to be notified. Germany Compared to the Regulation 1348/2000 has shown hardly any Bailiff acceleration. Poland It is a comment rather than a suggestion: how much time service of Solicitor/Barrist documents takes often depends on which Member State the er

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document in question is going to be delivered to for a simple reason: some of the Member States only accept forms referred to in Article 4.3 in their official language and in those cases translation of that form takes a little longer. Case in point - Finland, Estonia and Latvia. There are fewer translators of Finnish, Estonian and Latvian then there are translators of, for example, German, English and French. Therefore the translation of a simple form has to wait longer for an available translator if it is going to be served to Finland than if it is going to be served to Germany. For that reason Poland accepts forms in Polish, English and German. France The bailiffs are, in France, more aware than the lawyers. NA France Countries having bailiffs show more speed in the transmission while Bailiff other countries have very long delays. Netherlands The transmission has been improved; still we receive some problems Bailiff concerning incorrect details of some of the agencies. Finland The whole process is slow beginning of finding the correct Lecturer/Profes documents at ATLAS and filling in the documents. sor Belgium With the countries that have the same institution so as Belgium, Bailiff France, Netherlands it go very fast. In some other countries that are not having the same institutions it´s a little bit longer. Lithuania Would be much faster if more countries starts using email than Judge regular mail

5.2.2.2 Transmitting and Receiving Agencies (Art. 2) QUESTION 3: Which problems, if any, has the introduction of direct transmission of documents between local bodies caused?

Results show that the most common problems concern:  the lack of familiarity of the local bodies with the Regulation ; and  issues in the communication between transmitting and receiving agencies, due to linguistic barriers and similar issues. Around 25% of the respondents do not find any problem

Problems caused by the introduction of direct transmission of documents between local bodies (n=465)

Often local bodies are still not familiar 29,9% with the Regulation

Communication between transmitting and receiving agencies does not work well 28,0%

Receiving agencies with no territorial jurisdiction do not forward the document 15,3% 171 Finding contact details of receiving agencies is difficult despite information in 10,3% manual

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% of affirmative answers

5.2.2.2.1 Others 13,3% of the respondents have answered “Others”. They have provided some explanations on their response. Member State Q3A7 organisation

Austria But the ANSWERS Come frequently in the local language and cannot Judge be understood. Often, the existing response forms are not used and sent a note in their own language or the response forms are used but filled again in the national language. The answer cannot be understood. Lithuania Certificate or documents are translated into wrong language, Institution unidentified address of the addressee indicated. Bulgaria contact details in the Manual/Atlas are not always up-to-date Bailiff Germany The electronic directory of the receiving agencies in the European Bailiff judicial, Atlas is to improve technically. The competent authorities must be better displayed. E.g. in the Netherlands appear to all bailiffs and find Spanish court often will not be displayed. Germany The manual has lost importance in practice. The information is Bailiff researched on the Internet. Spain Lack of knowledge about the Regulation Solicitor/Barrister

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United Kingdom From a Scottish perspective there is a lack of understanding regarding NA the costs applicable to service of documents and we have had difficulty in recovering payment for work carried out. Hungary In a few cases no response are sent at all. Our most important Institution problem is that we in the Hungarian Central Authority still receive a great number of requests although that should only happen in exceptional cases under Article 3, c). The searching motor on the Atlas works well and it is easy to use, therefore the courts of other MSs should be capable to find the territorially competent Hungarian courts. Germany In some cases it was not possible to determine the receiving agency, Bailiff without any doubt. Bulgaria It is difficult to find the exact court in foreign countries. Judge Netherlands It takes longer when documents are transmitted between local bodies Bailiff (which are both located in 1 Member State). When we send a reminder to both of them (official receiving agency plus local body), we often don’t receive an answer. When we send a reminder to the receiving agency, we usually receive an answer but it takes a long time. France The certificate of transmission or of tentative isn't addressed in the Bailiff language of the authority of origin

France The cost is very different among the States: 50€ in France but Bailiff Belgium and Luxembourg the cost is more than the double. Luxembourg The coordinates of the receiving entities are not updated in the Bailiff manual. Belgium The receiving entities who do not exercise a liberal profession do not Bailiff know, or very little, about the Regulation and are too slow in the management. Netherlands receiving bodies often do not accept that documents are not Bailiff translated even though it is explained that the addressee understands the Dutch language; Netherlands Requests are sent to the wrong receiving agencies. The transmitting NA agencies do not even try to locate the nearest receiving agency, they just send the documents to the first receiving agency they see, or know. Very frustrating Spain It would be convenient to designate the attorneys as receiving entities Attorney to take charge of notification of the communications as it happens in France. Estonia some countries despite the fact that in Estonia the receiving and Legal assistant transmitting agencies are courts and all the contact details can be found on the Atlas, send the request to the central authority Malta Translations provided are usually carried out online leading to poor Solicitor/Barrister quality language, sometimes incomprehensible to the receiver Spain There are issues with the languages as well as a general Solicitor/Attorney unawareness of the existence of the Regulation. In some cases I had even to explain a judge the application of this Regulation. Czech Republic We have still problem that in some Member States courts do not Institution respect the language regime

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Austria The forms of the regulation are often not used, but others. This Judge complicates the understanding. Moreover, additional texts are written to the forms what leads to problems of comprehension.

5.2.2.2.2 Narrative comments 7,1% of the respondents included narrative comments in their answers in the free text field. Member State Q3A8 Organisation

Ireland Clear and concise guidelines should be published in each Solicitor/Barrister jurisdiction explaining the manner in which the Regulation has been implemented as a matter of national procedural law. Austria The search in the manual does not work in all member states Institution equally well. Portugal There is no issue between courts but with the postal services Judge who effect the notifications. The information should be transmitted in the language of the receiving State. Sweden I have tried to contact the receiving agency in France on the e- Judge mail address listed in the contact details in order for Svea Court of Appeal to be able to pay the requested fee of 50 EUR, but no one has answered. My message was written in French. I will now try to get in touch with them by post. Information about bank account etc. should be listed somewhere to enable the service of documents in cases where a fee has to be paid at the same time as/before the document is forwarded to the receiving agency. France It would necessary to draft a practical guide of use and trainings Solicitor/Barrister at all levels.

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Luxembourg It would be better if every State would manage the list of Bailiff receiving entities without going through Brussels. Netherlands It would be nice if all receiving agencies automatically check the Bailiff databases of the local/national authorities to confirm that a person lives on the address the transmitting agency says. There should be a remark and box in the forms (after/around number 12) so the bailiff or serving authority can confirm that the information has been checked. France The common regulation implies that the texts and the applicable Lecturer/Professor rules are decided by consensus therefore, less precise. It is necessary to go back to the bilateral rules and the content will then be more precise and better applicable. Spain We have detected requests where the form is only drafted in the Institution language of the transmitting state, without translation to the language of the receiving state. Sometimes there is no post code of the transmitting local entity. There can also be problems with designation of the locations which can be translated into other language. Czech Republic some less active states (Spain, Italy) shall be encouraged; using Judge English-only would be helpful Netherlands The communication between the different bodies has become a Bailiff problem in certain cases. We have had many cases where we would be unable to communicate with the specific country and/or the specific country does not understand the meaning/assignment given. As pointed out under number 2 we also have had some problems regarding the correct address details of the local bodies. There were cases where we have sent a request for service to a wrong address given. Germany Obligation for distribution to the territorially competent authority Bailiff

Austria The receiving entities should repeat that the order forms are to Judge be used. In addition trainings could also take place.

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5.2.2.3 Central Body (Article 3) QUESTION 4: From your experience, how effective are Central Bodies in supplying information to the transmitting and seeking solutions to difficulties which may arise during the transmission of documents for service?

Concerning the effectiveness of the central bodies to solve the problems and supply information, most of the participants consider that they are effective but with differences between Member States.

Effectiveness of the central bodies in supplying information to the transmitting agencies and seeking solutions to difficulties (n=465)

Very effective 7,7%

Varies between Member States, but generally speaking rather effective 41,9%

Varies between Member States, 13,5% but generally speaking rather ineffective

Not effective 4,5%

Difficult to say 23,0%

176 NA 9,4%

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5.2.2.3.1 Narrative comments 7,5% of the respondents included narrative comments in their answers in the free text field. Member State Q4A2 Oganisation Belgium Especially with Central Authorities supply of information is almost Bailiff impossible. Contacting these authorities is very difficult because of language barrier and the difference in quality of the judicial officers/bailiffs Belgium If not territorially competent, they send back the documents instead NA of transmitting them to the good body, and we have to send it one more time: it takes more time and costs more... Belgium The States knowing demographic registers or with databases of Bailiff commercial enterprises are more efficient tan the states with no source of information. Some central entities DO NOT make any effort to identify/locate the receptor of a judicial act document. It is sometimes difficult for the transmitting entity to communicate to the receiving entity the most recent and updated address and our requests of prior identification remain often with no answer. United Kingdom Some States do not appear to refer to the European Judicial Atlas Institution seeking the proper receiving agencies, preferring to send requests to the Central Authority as an easy option. Hungary Sometimes certain Central Authorities do not effectively provide Institution assistance. Hungary The Somogy County Court has no information about other Member Judge States' central bodies work but the Hungarian central body is very effective. Netherlands We have not had any cases of which we had to contact any central Bailiff authority.

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Germany So far, only experience with the central entity in Bayern Bailiff Poland Direct transmission is much more effective Attorney Spain It varies a lot among Member States Solicitor/Attorn ey Austria Urgent cases unfortunately are merely passed on by the central Judge offices, solutions are not searched.

5.2.2.4 Forms (Articles 4, 6, 7, 8, 10, Annex) QUESTION 5: Which problems, if any, are you aware of or have you encountered concerning the forms provided for by the Regulation for transmission of documents?

Concerning the typology of problems encountered by the respondents relative to the forms, the most highlighted issues the incorrect or incomplete fulfillment of the forms (29%), their unread ability (24,1%) and the admission only of forms copied from the Official Journal (20,9%).

Problems encountered concerning the forms provided for by the Regulation (n=465)

Forms are not filled in correctly or not completely 29,0%

Forms are filled in by hand and cannot be read 24,1%

Only forms copied from the publication in the 20,9% Official Journal are accepted

17,2% Date is not filled in

Language requirements for completing forms are 7,5% not complied with

Forms are not used at all 2,6%

Others 10,5%

None 34,0%

NA 10,5% 178

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% of affirmative answers

5.2.2.4.1 Other problems 10,5% of the respondents have answered “Others”. They have provided some explanations on their response. Member States Q5A9 Organisation Netherlands All answers concern the certificate; often not filled in (blanco) or Bailiff not readable (filled in by hand). It takes a long time to still receive a complete certificate.

Germany Except for the fact that for outgoing requests no receipts are Bailiff sent back to us, forms used to be filled in very well and almost always correct and complete way.

Germany Dealing with the forms, especially if they are filled at the Judge computer, rather "bulky"; more user friendly would be welcome Germany The forms are not used in some Member States Bailiff Germany Acknowledgment is often missing / mostly. Bailiff Germany It is often used badly copied forms from the regulations. Other

Bulgaria If the cases will finish fast and return the documents Judge acknowledgement of receipt becomes unnecessary. France It would be convenient to uniform the obligation in relation to a NA mandatory translation or not. Germany In Eur. Judicial Atlas in Civil Matters cannot print out the Bailiff completed forms in the original language. Malta In connection with the form summoning witnesses, it seems not Solicitor/Barrister to be possible to just summon witnesses for the production of documentation, but it seems that a list of questions would need to be necessarily asked from the witness. Hungary It is true that acknowledgment of receipt is often not sent, but I Institution am not persuaded that this obligation is really necessary; it seems to be an unnecessary burden for receiving agencies. Sometimes transmitting agencies do not provide their own

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contact details.

Malta Poor quality of translation (literal translations using online tools); Solicitor/Barrister electronically completed forms should be mandatory Cyprus Rarely the attachments are not properly translated. Other Portugal There are many forms. It would be necessary to uniform it more. Judge One or two forms would be enough. Belgium The exact date of handing over the document to the addressee - Judge the date of service - isn´t always clear, especially in countries that work with a central body where a document is forwarded several times, e.g. department of justice to local court to local clerk or judicial officer and back again. Lithuania No identification of person or organisation (personal code or Other birth date, organization code Germany The form upon Art. 10 is often not used or not filled. Bailiff

5.2.2.4.2 Narrative comments 5,6% of the respondents included narrative comments in their answers in the free text field.

Member State Q5A10 Organisation The forms should be printed as a Word file, not only as a Germany PDF file (not changeable) Lecturer/Professor The points to be served are obviously not sufficiently trained and familiar with the use of the forms, and the possible access seems to be not well known on these forms via the Germany Internet. Bailiff Some member states, in particular Italy, do not use for the communication of the delivery the prescribed form. Germany Unnecessary sending costs occur. Bailiff Possibly English as the common language would solve the Austria language problem. Judge Training of the entities and request of respect of the regulation and the linguistic rules and a way to deliver Belgium personally instead of by post. Bailiff Forms are generally used but acknowledgment of receipts Sweden can look a little different sometimes Other Germany In addition, an address field in the forms would be useful. Bailiff It would be good if receiving agencies could make research on the people (e.g. look for the good address) because we don´t always have the good information to fill in our acts or documents. If someone cannot be found because the address is not correct, they send everything back with a note Belgium and it´s finally not signified... NA Belgium more use of email notifications Bailiff

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For instance, nothing, except mistake, is foreseen to indicate that the document has been served to “somebody”; this is to France the addressee, when this one is a moral person. Bailiff THE TRASMISSION OF DOCUMENTS SHOULD BE DONE Italy IN MULTIPLE LANGUAGES Lecturer/professor Added documents to the form usually aren´t translated and Lithuania person do not accept documents Judge Austria Trainings or information about it would be necessary Judge

5.2.2.5 Informing addressee of right to refuse to accept a document (Article 8)

QUESTION 6: In cases where the addressee understands the language of the Member State of transmission, is it possible to serve documents in a language other than the official language(s) of the Member State addressed?

In most of the cases (70%), respondents indicate the possibility to serve in another language different to the official one(s) of the receiving State.

Possibility to serve documents in a language other than the official language(s) of the Member State addressed, in cases where the addressee understands the language of the Member State of transmission (n=465)

Yes 70,1%

No 15,5%

NA 14,4%

5.2.2.5.1 Reasons

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When the respondents have answered “No·” to the previous question, they have been requested to indicate the reason.

Member State Q6A2 Organisation All documents in other official language should be translated and the translation should be legalized by the public notary in Romania Romania, respecting Romanian laws. Solicitor/Barrister From the experience with the Direct-signed bailiffs, particularly in France, the translation is absolutely necessary, because Germany otherwise they don´t know what they should do Bailiff It's already happened in the past, that the request was sent back asking for being accompanied by translations, regardless of whether the recipient understands the language of the Germany sending state. Bailiff The receiver is informed of the right to the non-acceptance but it cannot be proved whether the addressee understands or not Germany the language. Other Due to important subject of many documents, and for peace, I prefer official language(s) each of the Member State where is address of the addressee. But each addressee shall ask for support his/her host nation if he/she does not understand of Czech Republic language of his/her official language(s). Attorney There are additional costs for translation and the processing Germany takes longer due to the addition Demanding Translations. Bailiff It happens sometimes that receiving agencies refuse to deliver, on the grounds that the document had not been Germany translated into the official language of the Member State. Bailiff It would be important that the delivery office gets a NOTE that the recipient understands the language of the document to be Austria served. Judge It is important that the receiving entity could evaluate the France content of the transmission to advise usefully the receptor. Bailiff

France Loss of exactitude and credibility of the documents Lecturer/Professor The main goal for serving documents is that the addressee understands the meaning of the documents. In case a French person is living in The Netherlands, and the documents would be served only in the Dutch language, this person would not be able to understand the meaning of the documents. If we would send any documents to a Member State without any translation it will be our task to provide enough information so that the receiving agency understands the meaning of the Netherlands service. Bailiff The responsible official of the member state addressed should be able to understand what the documents contain. We should therefore accept documents in other languages than Sweden our official language if we understand these languages. Judge

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Lithuania national address is not correct in many documents Other

Germany Not accepted by the Central bodies Bailiff NO , AS ALL THE DOCUMENTS MUST BE TRANSLATED IN Italy ALL THE LANGUAGES OF MEMBER STATES Lecturer/professor the courts automatically assume that the language of the Member State should be used (even though this increases Poland costs and timing) Attorney

Spain Due to unawareness of the jurisdictional entity Solicitor/Attorney

5.2.2.6 Article 8 related problems

QUESTION 7: Which problems, if any, has the application of Article 8 caused?

The largest group of respondents does not believe that Article 8 causes any problem (35,7%). The most common problem refers to the lack of information (not always or never) by the receiving agencies of the right to refuse.

Problems caused by the application of Article 8 (n=465)

Receiving agencies do not always inform addressee of right to refuse to accept the 26,2% document

Receiving agencies never inform addressee of 15,9% right to refuse to accept the document

Problems connected to the fact that there is no time period in the regulation within which the 8,2% addressee can refuse to accept document

Other problems connected with information of addressee of right to refuse to accept the 2,6% document

None 35,7%

NA 20,4%

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% of affirmative answers

5.2.2.6.1 Narrative comments 12,7% of the respondents included narrative comments in their answers in the free text field. Member State Q7A6 Organisation Ireland A time limit should be introduced for refusing the documents Lecturer/Professor under article 8 as the addressee can return the documents after the Certificate of Service has been issued. Cyprus Better guidelines!! Solicitor/Barrister Germany As with a regular application, the applicant claims that the Judge defendant understand the German language and the court cannot judge that the right to refuse acceptance is actually thwarted. It is not clear to what extent the mere assertion of linguistic knowledge by the plaintiff is sufficient to deny the right to refuse to accept . Belgium In which language would the document be drafted without Bailiff knowing the receptor? There are frequent cases of immigrants in the francophone Belgium who do not know French… Germany The deadline for the refusal is too short (long regular mail). Bailiff Germany There have been incidents that acknowledgment granted and Bailiff later the refusal was explained. Slovakia Form (Annex II) is not attached, especially when using Article 14 Other service. The form is confusing by its extent and there is a discrepancy between the language of the regulation and the language of the form as to what constituted a "refusal": Regulation requires returning the documents and no specific statement to that effect, the form requires a statement, but does not bring attention to the need to return the documents as well. Consequently, it is unclear what (legal) consequence has returning the form stating refusal, but not attaching the documents.

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Latvia If addressee refuses, process should be restarted again and NA overall takes very much time. And addressees use this article contrary to bad faith and they sometimes refuse just to make the process longer: even if we know they actually understand the language they say they don´t (for example, a big international company in Slovenia says it doesn´t understand English). Hungary Option 4 above (no time period) is not correct since the Institution Regulation does set a deadline (one week). The most important problem with this article concerns paragraph 1 (b) according to which the addressee has the right to refuse documents if they are not in a language he understands. Obviously the receiving agency does not have information on the language knowledge of the addressee, therefore in case of a refusal point 14 of the certificate will be completed. However, point 52 of the Leffler- judgment of the ECJ gives the impression that in such a situation the court acting in the case can continue proceedings if it considers the refusal abusive because it has information that the addressee does speak the language of the document. In case the procedure is continued and a decision is finally made, problems can come up when enforcement of this decision is requested in another MS because the addressee/debtor can successfully object to the enforceability of the decision; we cannot exclude a situation where the court assessing enforceability comes to a different conclusion on the addressee’s language knowledge than the court which decided on the merit. Generally speaking, this provision gives rise to uncertainty which is unacceptable when it comes to service of documents, especially the ones instituting proceedings. Sweden Problems arise when the time limit for serving a document is Other very short and the stipulated week must be awaited, should the addressee choose to return the documents on the grounds of the language used, before being able to send a certificate of service. Slovenia Problems arising due to a "judge vacation". Judge Belgium Receiving agencies might not inform the addressee of the right Bailiff to refuse but the transmitting agencies will not know if this is the case. United Kingdom Requiring the receiving agency to allow up to a week for the NA recipient to return the refusal document causes problems as it provides an onus on them to act in a form of representation for the party - clearly this is a conflict of interests and not something for which the receiving agency is paid. Portugal Eliminate the possibility to refuse. However, it would be Judge necessary to foresee the possibility of the addressee to request, within a limited deadline, the translation of the documents that he does not understand, with suspension of the demand.

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Netherlands We have had cases where the receiving agency would refuse to Bailiff serve documents without any translation. According to our studies there is no right to any receiving agency not to serve documents if the translation is not provided. The receiving agency will have to give the opportunity to the addressee to refuse by the standard forms given by the European Commission. Luxembourg Eliminate the obligation to attach the form of the act is drafted in Bailiff one of the official languages of the receiving State. Czech Republic In practice, it is still not very clear between Member States Institution whether transmitting or receiving agency should attach information about the right of refuse to accept a document.

5.2.2.7 Date of service (Article 9) QUESTION 8: Which problems, if any, has the application of article 9 caused?

The largest group of respondents (45,6%) considers that Article 9 has caused no problem. Otherwise the most common problem refers to the difficulty to establish the date of service in some cases.

Problems caused by the application of Article 9 (n=465)

Date of service is difficult to establish in some cases 29,5%

Declaration of Member States 13,5% are not clear

Others 6,2%

None 45,6%

NA 13,5%

% of affirmative answers

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5.2.2.7.1 Others 6,2% of the respondents have answered “Others”. They have provided some explanations on their response.

Member State Q8A5 Organisation Portugal In some States the postal services work on Saturday. There Judge issues to start counting the deadlines. It is the case of France. France It would be necessary that besides the fulfillment of the form, the Bailiff receiving entity includes the date on the document which has been transmitted and the he returns to the transmitting entity.

France The certificate of the notification or of the tentative is not in the Bailiff language of the authority of origin, The typical form to return is not always used. Spain Need to unify the systems Judge

Germany Often it is not clear whether the recipient has actually received Bailiff the documents, or whether the recipient was only notified that a shipment is ready for collection. Netherlands Point 6.2 of the form “request for service of documents”: to Bailiff request a date of service is sometimes difficult to estimate. If the receiving agency can’t serve in time, the documents will be returned. Some states always serve in time. In other states it takes much longer and when the requested date of service expires, there is a risk that the documents will be returned unserved. This takes a lot of time. Sometimes even a legal term expires because the documents are returned unserved with reason that the state has not been able to serve in time.

Malta Sometimes receiving agencies fail to indicate the specific date Attorney of service.

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5.2.2.7.2 Narrative comments 3,9% of the respondents included narrative comments in their answers in the free text field.

Member State Q8A6 Organisation Belgium Document dated but not signed or signed but not dated. Bailiff Germany Since there is no possibility of review, I assume that the Bailiff receiving Member State notified date of delivery Germany There should be a deadline for return of proof of Bailiff notification. Netherlands In a few cases where we would not receive a certificate of Bailiff service we were not able to make sure on which date the service has been affected. Belgium In Belgium we accept the day of postal transmission in the Bailiff Belgian post office as official date of transmission. Therefore the actual date of service in the State addressed is of less importance France The principle of the double date is basic for the good Bailiff regularization of the procedures of the States.

Netherlands Maybe the receiver can send an e-mail first, to inform that Bailiff it is not possible to serve in time when a specific date is requested (instead of returning the documents).

Germany Control to return the certificate of service is desired. Other Slovakia Slovakia is not one of the States which apply Article 9 Other (Slovak law does not recognize "double dates" of service), thus it does not cause any difficulties in practice.

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5.2.2.8 Costs of service (Article 11)

QUESTION 9: Which problems, if any, has the application of Article 11 caused?

The most common problems concern the high fees in some Member States (29,2%), the need to pay in advance in some Member States (21,1%) and the lack of transparency when fees are not fixed (20,6%)

Problems caused by the application of Article 11 (n=465)

Problems due to high fees in some Member States 29,2%

Problems due to the fact that payment of fees in advance is requested in some Member States 21,1%

Problems due to lack of transparency concerning calculation of costs in some Member States where fees are not fixed, but vary depending on 20,6% circumstances of individual cases

Problems due to the fact that fees are charged also in cases where legal 15,3% aid has been granted to applicant in some Member States

Problems of communication with entities charging fees 10,5%

Others 10,8%

None 28,8%

NA 13,1%

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% of affirmative answers 5.2.2.8.1 Others 10,8% of the respondents have found other problems. They have been requested to identify them.

Member State Q9A8 Organisation Germany Bank Account, IBAN or SWIFT code was not specified. Bailiff Belgium Some States do never pay Bailiff

Germany Receiving agencies sometimes collect higher amounts Bailiff than the set fee. Belgium FRENCH HUISSIERS OFTEN ASK MORE THAN Bailiff 50.00 EUR - THE AMOUNT THAT IS FORESEEN OUR FEES CAN BE UNPAID FOR SEVERAL MONTHS Belgium The tariffs of the French bailiffs are sometimes very Bailiff variable. The cost of their act is totally unknown when they transmit a document. France Lack of information about the cost of the intervention, Bailiff that it cannot be communicated to the demanding party. Germany We do not have any information concerning the Judge notification when it is effected by the solicitors

Sweden Payment in advance prolongs the service process. Lecturer/Professor

France Issue of the fee of the translation- it cannot be Solicitor/Bailiff integrated within the act itself. Netherlands The fee for serving documents is to low if you look at NA the work that has to be done before one can serve the document. Italia The judicial Officers of the member states often ask for Bailiff varying prices. It would be very useful if they asked for fixed fees. Italy MY OFFICE RECEIVE THE DOCUMENTS , BUT WE Lecturer/professor DON´T NOTIFY THUS WE ARE NOT IN CHARGE OF LEGAL FEES Portugal The problems concerning fees are not directly known Institution by the Portuguese Central Authority. Details on those only can be provided by the internal courts

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Czech Republic We have problems that in some Member states where Institution fees are fixed (stated on Atlas) receiving agencies are sometimes asking for much higher fees. For the Czech courts is sometimes very difficult to find out information on bank accounts etc. of receiving agencies. This information should be available on Atlas. Cyprus There is no fees for the service of judicial documents Other under EC Regulation 1393/07 from member states to Cyprus

5.2.2.8.2 Narrative comments 7,5% of the respondents included narrative comments in their answers in the free text field. Member State Q9A9 Organisation Sweden I have tried to contact the receiving agency in France on Judge the e-mail address listed in the contact details in order for Svea Court of Appeal to be able to pay the requested fee of 50 EUR, but no one has answered. My message was written in French. I will now try to get in touch with them by post. Information about bank account etc. should be listed somewhere to enable the service of documents in cases where a fee has to be paid at the same time as/before the document is forwarded to the receiving agency. France It would be useful to count on a list of tariffs for each Bailiff Member State Belgium in Belgium we have a fixed fee for service of documents Bailiff coming from abroad Germany In practice it is difficult to determine the cost of delivery Bailiff of the bailiffs in the EU countries and to establish the modalities for the transfer of advances. France The notification in every Member State should be the Bailiff done under the same tariff. Spain Need to eliminate the fees in the few States that request Judge them. Netherlands We have had many cases where we would receive high Bailiff invoices for the service given. The communication between the Member States makes it difficult to reply on the invoice. Regarding sending the invoices for the given service it would be able to charge the invoice without VAT, to send an invoice without VAT we would need the VAT identification number of the transmitting agency. We rarely receive this number and therefore unnecessarily charging VAT. Germany Payment should occur only after delivery against bill. Bailiff

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Portugal The forms must have a field in order to inform if the Institution applicant has legal assistance due to the fact that some states oblige the payment of costs of service unless the applicant benefits of legal assistance Austria Free of costs in all Member States Judge

5.2.2.9 Service by post (Article14)

QUESTION 10: From your experience, are documents frequently served directly by post? Results show that the service of documents by post is frequent.

Frequency of service of documents directly by post (n=465)

Yes, very frequently 29,2%

Yes, more frequentlythan service 19,4% through a receiving agency

No, rather exceptionally 17,8%

No, never 3,7%

Difficult to say 20,2%

NA 9,7%

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5.2.2.10 Problems concerning postal service

QUESTION 11: Which problems concerning postal service have you encountered or are you aware of?

The most common problems stated by the respondents indicate that the acknowledgement of receipt is not completely filled (41,!%) or not returned (40,6%) or the signature cannot be read (34%).

Almost 25% of the respondents have not found any problem.

Problems concerning postal service encountered or aware of (n=465)

Acknowledgement of receipt 41,1% is not filled in completely

Acknowledgement of receipt 40,6% is not returned

Signature on acknowledgement 34,0% of receipt cannot be read

10,5% Others

24,3% None

NA 13,5%

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% of affirmative answers

5.2.2.10.1 Others 10,5% of the respondents have encountered other problems. These are the explanations given: Member State Q11A6 Organisation Cyprus According to Cyprus Judicial System and the Law, all Other judicial documents are served by Bailiffs. The receiving authority accepts documents from other member states sent by post and then transmit the documents to the Courts to be served. Slovakia according to Slovak legislation, bailiff cannot use direct Bailiff postal service, he must always ask the court to arrange the service Germany For delivery by registered mail with return receipt Bailiff requested international problems arise, most of the foreign service. Based on the return receipts usually cannot be determined who has done the signature on the return receipt (postal officials or addressee or any other person). Hungary Besides article 8 this provision causes the most Institution problems in practice because it does not provide the same type of certainty as service by a receiving agency. When the latter receives a request it can apply the national law on service of official documents, including provisions setting guarantees. However in case of article 14 the postal service providers are not necessarily aware that the documents they deliver are official judicial or extrajudicial. Therefore guarantees, which normally would apply in case of internal service (including service of foreign documents by domestic authorities) are not, and practically cannot be respected. Application of this article, similarly to article 8 produces inacceptable uncertainties. Ireland Defendant deliberately evading service. The extent to Solicitor/Barrister which a domestic court retains discretion to order substituted service in accordance with domestic procedural law is unclear. Germany It is rarely returned a completed return receipt Other requested. Problem: if contestability in European enforcement orders to be issued.

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Slovakia In some cases the post office does not mark if the Legal assistant addressee refused the document or if he was not reached. France Lack of certitude of the person addressee of the letter NA (wife, son, mother????) Slovenia The problem concerning the right to refuse which has Legal assistant not been translated. France Difficult location of the addressee, document not always Bailiff transmitted to the interested party, issues of juridical security, France Negligence of the post Bailiff Cyprus Our legal system does not provide for service via post Solicitor/Barrister except where the applicant has obtained a court order in order to do so. Most foreign lawyers are not aware of this. I think better communication/explanation of legal system differences should be available as the service via post would be deemed ineffective. Slovakia See comments under point 7 above. An additional Other problem is that there is no guarantee that the document will be actually served on the addressee. The service by post is governed by the rules of Universal Postal Union and those allow the countries to serve also to other persons (such as another adult at the address of delivery). Thus the incoming (international) acknowledgment of receipt can be signed by someone else (husband, wife, relative) and gives the requesting authority (in our case the court) no guarantee (and virtually no information) as to who the actual recipient of the document was. For purposes of legal proceedings this is too uncertain and undermines the whole purpose of Article 14, forcing courts to use the "regular" channels of transmission which are governed by different rules of service (rules of domestic civil procedure) and are more reliable to achieve the desired effect of service on the addressee himself/herself. Hungary Service by post is the most frequently used fast and Judge easy service the court uses. Netherlands Sometimes several regulations are applicable. For Bailiff example Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure. Article 14 of Regulation (EC) 1896/2006 titles multiple conditions on postal service (Article 14, paragraph 1 sub e jo. Paragraph 3). This can be confusing and has led to discussions with Member States.

Germany Partially long duration of the return. Bailiff

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Greece The contents of the served document cannot be proven Attorney and thus the party who received it may argue that the envelope did not contain anything or it contained a document different than the one alleged by the party who served it Hungary The form provided by the European Judicial Atlas is too Judge long and complicated to deal with. Cyprus According to Cyprus Law judicial documents only can Other be served through the Supreme Court 5.2.2.10.2 Narrative comments 6,2% of the respondents included narrative comments in their answers in the free text field. Member State Q1A7 Organisation Germany Article. 14 is applied only to avoid the costs (Benelux, Institution F), otherwise always delivery to the receiving entities. Germany Clarification, information, sensitization of the territorial Bailiff postal services. Czech Republic Comment: The service by post is used in case of not Public notary so important judicial documents (information, requests etc.), while service by local bodies is used in case of writ summons, decisions, judgments etc. It has happened more than once that the acknowledgement of receipt was not returned from United Kingdom of Great Britain and Northern Ireland. Germany The post offices of the Member States should be Bailiff informed of how to deal with international registered mail, in particular on the need to fill in and return the registered mail return receipts. Germany The problems could be eliminated with other design of Bailiff the return receipt. Germany Obstacles listed should sin, for example: "Recipient Lecturer/ Professor unknown", "recipient address unknown", etc. Czech Republic In the case that it is possible to deliver substitutly (an Judge alternative manner), it is difficult to get information about applicable legislation regulating this type of service. Then it is difficult for the transmitting authority to conclude whether it was delivered (by alternative means) in accordance with the laws of the Member State where the addressee resides in or not. Spain Usually the service and notification by port is used in Institution urgent cases with urgent deadlines. France The direct notification does not guarantee the juridical Bailiff security due to a postal distribution which fails more and more due to the liberalization of the system. Go back to the transmission effected by the professionals. Germany Training of the postal workers. Other Germany Endorsements on envelopes should be in English Lecturer/ Professor

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Belgium we always combine service by post and by local Bailiff authorities (if nobjections) Netherlands We don´t use this type of service. Bailiff Netherlands We have chosen to work with a courier service within Bailiff Europe to affect the service in accordance with article 14. The Dutch Court approves this way of serving documents. Service by postal service is mostly a much quicker way of serving the documents. Germany The notification shall be given not by the postal Bailiff workers. I.e. practically, the recipient accepts the documents already on instruction without refusal. Then, when the return receipt with a reference to the successful delivery occurs, it may happen that a few weeks later received the first refusal. Austria Training of the Post????? Judge Italy THE Acknowledgement of receipt MUST BE Lecturer/professor MULTIPLE LANGUAGES

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5.2.2.11 Direct service (Article15)

QUESTION 12: From your experience, do persons interested in a judicial proceeding frequently provide service of documents directly through the judicial officers, officials or other competent persons of the Member State addressed?

Most of the respondents (47,7%) state that it is difficult to say is the direct service is frequent or not. The rest of the respondents offer very varied views about the frequency.

Frequent service of documents directly through the judicial officers, officials or other competent persons (n=465)

Yes, frequently 13,3%

No, not very frequently 16,8%

No, never 11,6%

Difficult to say 47,1%

NA 11,2%

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By Member State and profession (n=465)

By Member State it seems that the frequency is higher in Belgium, Bulgaria, Greece, Ireland, Romania and Slovenia (where there are discrepancies and 25% declare that it never happens)

Yes, No, not very No, Difficult Da frequently frequently never to say 0,0% 33,3% 33,3% 16,7% 16,7% 42,2% 21,2% 6,1% 30,0% 0,0% 30,0% 20,0% 0,0% 50,0% 0,0% 16,7% 50,0% 0,0% 33,3% 0,0% 0,0% 5,9% 11,8% 70,6% 11,8%

12,5% 25,0% 0,0% 50,0% 12,5% 11,1% 22,2% 0,0% 66,7% 0,0% 25,0% 50,0% 0,0% 25,0% 0,0%

20,0% 10,9% 20,0% 45,5% 3,6% 2,0% 17,2% 19,2% 52,2% 9,1% 36,4% 63,6% 0,0% 0,0% 0,0%

0,0% 28,6% 28,6% 42,9% 0,0% 40,0% 0,0% 0,0% 60,0% 0,0% 0,0% 12,5% 0,0% 75,0% 12,5%

0,0% 0,0% 30,0% 60,0% 10,0%

18,2% 18,2% 0,0% 63,6% 0,0%

25,0% 25,0% 0,0% 25,0% 25,0% 0,0% 25,0% 0,0% 50,0% 25,0% 11,1% 11,1% 11,1% 55,6% 11,1% 40,0% 10,0% 0,0% 50,0% 0,0% 28,6% 0,0% 28,6% 42,9% 0,0% 37,5% 0,0% 25,0% 37,5% 0,0% 16,0% 24,0% 16,0% 44,0% 0,0% 0,0% 0,0% 2,3% 36,4% 61,4%

6,7% 33,3% 0,0% 60,0% 0,0% 0,0% 12,5% 0,0% 37,5% 50,0%

Yes, No, not very Difficult ORGANISATION No, Da frequently frequently never to say Solicitor, Barrister, Legal assistant, Public Notary 23,1% 23,1% 9,2% 43,1% 1,5% Judge, Attorney, Baliff, Court clerk 11,5% 16,7% 11,8% 47,7% 12,2% Institution 14,3% 7,1% 28,6% 35,7% 14,3% 199

Lecturer, Professor 14,8% 7,4% 0,0% 63,0% 14,8%

Others 3,0% 15,2% 15,2% 39,4% 27,3% Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

5.2.2.11.1 Cases Respondents who have answered “Yes, frequently” have been requested to specify in which cases. The table below shows a selection of the comments received.

Member State Q12A2 Organisation Slovenia All procedures, in which one party lives in another Member Solicitor/Barrister State Belgium Direct service (in addition with other means of service) if the Solicitor/Barrister case is important from a financial viewpoint. Ireland Generally, every effort is made to service documents by Other post. Where a Member State is particularly anxious to serve documents because of the nature of the case then personal service will be attempted. Belgium In case the service of the documents is very urgent, and the Bailiff client (lawyer in another EC country) wants service that same day Belgium Being uncertain the delivery of the documents by the post, I Bailiff proceed to a notification among peers. France The direct service is used more and more Bailiff

Portugal The service of documents directly through the judicial Institution officers takes place when the person residing in other Member State does not accept the register letter with acknowledgement receipt

5.2.2.11.1 Reasons Respondents who have answered “No, not very frequently” have been requested to specify for which reasons. The table below shows a selection of the comments received.

Member State Q12A3 Organisation United Complications involved in service and understanding what is NA Kingdom acceptable within each jurisdiction. Also restriction on possibilities for successful recovery from individuals across borders.

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Germany The parties often don´t know about this possibility, the Bailiff receiving agencies are difficult to determine. Since many Member States have objected to this rule, must also be clarified in each individual case, whether this kind of service is possible. Hungary Direct service is used in case when service by post or service Judge by agencies is unsuccessful. The Republic of Hungary opposes the possibility of direct service in its direct territory. France Due to unawareness of the judicial agents, civil servants and Judge other competent persons. Germany There is no need for this in the standard case. Bailiff

Malta In order for this method of service to be adapted to, evidence Solicitor/Barrister of foreign law needs to be obtained to prove that such direct service is permitted in terms of the law of the Member State where service is to be effected. Netherlands It is not clear what the “juridical system” is in another country. Bailiff It is not clear as well to whom they can turn to (legal advice, in particular on the procedures). Persons are unfamiliar with the website of the European Judicial Atlas in Civil Matters, Italia Many persons interested in a proceeding don´t know this Bailiff service method; but sometimes they don´t use it because of the fees to be paid. Netherlands We think that the possibility to serve documents directly Bailiff through the compete persons is rather unknown in several Member States. We have had a few cases when we received documents for the direct service but it has not become a standard procedure. Since not every state allows the use of the direct service we do not advice it to our clients. Spain Due to lack of knowledge Solicitor/Attorney

5.2.2.11.2 Reasons Respondents who have answered “No, never” have been requested to specify for which reasons. The table below shows a selection of the comments received.

Member State Q12A4 Organisation Germany Official notifications are required by law. Other France It is important that the procedure is initiated in the Member Bailiff state of origin by a judicial agent or competent bailiff to assure the good regularisation of the act according to the modalities of the Regulation EC 1393/2007 but also other related European regulations in family matters , debt and small litigation Germany notification in the court proceedings are initiated by the Bailiff court, the party in the delivery mode is the exception

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Italia Language, costs; ignorance Judge France you never know if this rule is applicable or not Solicitor/Attorney

5.2.2.11.3 Narrative comments 6,7% of the respondents included narrative comments in their answers in the free text field. Member State Q12A5 Organisation Ireland The failure to include a second paragraph in Article 15 in the Solicitor/Barrister same terms as Article 15(2) of Regulation No. 1348/2000 has caused confusion. This suggests that member states no longer have the option of filing a declaration making it known that it is opposed to direct service within that jurisdiction. However, a number of member states have made such declarations and is it not clear if the omission of Article 15(2) from Regulation No. 1393/2007 was deliberate. Netherlands Stating information of relevant judicial officers, officials or Bailiff other competent persons on the website of the European Judicial Atlas in Civil Matters. Malta On one occasion that this was resorted to, the application Solicitor/Barrister was ordered by the local judge to be notified to the local transmitting agency. It transpired that the local transmitting agency had no objection to such request however it would seem that this additional notification step is unnecessary and that the service by this method should be ordered as long as it is shown that such service is permitted under the law of the Member State where service is to be effected. Germany actually runs faster than through a central body, the only Bailiff exception of Bulgaria, because the central office was extremely fast (delivery in less than 20 days) France Direct submission allows to reduce the delays of Bailiff transmission Germany Clear regulation, whether the form should be used would be Bailiff necessary. Germany Pursuant to § 166 paragraph 2 of the Code of Civil Bailiff Procedure is basically a delivery on its own initiative. In some cases, delivery is possible in party mode. The extent to which direct service is claimed by such alterations can be assessed. It should, however, rarely if ever be the case, especially since not have approved some Member States, the direct service under Article 15 France it would be necessary to specify cases in which this Solicitor/Attorney disposition is applicable

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Czech The Czech Republic does not apply this article. Institution Republic

5.2.2.12 Consular and diplomatic mode (Articles 12 and 13) QUESTION 13: From your experience, do persons interested in a judicial proceeding frequently provide service of documents via consular or diplomatic mode?

Although the majority (43,9%) considers that it is difficult to say, overall, it can be said that this mode is very rarely used.

Frequency of service of documents via consular or diplomatic mode (n=465)

Yes, frequently 3,2%

No, not very frequently 18,5%

No, never 23,7%

Difficult to say 43,9%

NA 10,7%

5.2.2.12.1 Cases Respondents who have answered “Yes, frequently” , just 3,2% of all the respondents, have been requested to specify in which cases.

Member State Q13A2 Organisation Lithuania In civil cases Other France the bailiffs to which certain documents are transmitted Solicitor/Barrister use this mean Belgium WE USE THIS FOR SERVICE UPON BELGIAN Bailiff CITIZENS IN OTHER EU COUNTRIES EXCEPT LUXEMBURG THE NETHERLANDS AND FRANCE

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5.2.2.12.2 Reasons Respondents who have answered “No, not very frequently” (18,5%) have been requested to specify for which reasons. The table below shows a selection of the comments received. Member State Q13A3 Organisation Germany The use of the consular mode is possible only in Bailiff exceptional cases. Germany This is usually not necessary. Bailiff United Difficult to ascertain who is responsible, and significant NA Kingdom delays in dealing with paperwork. Germany There is no need for this in the standard case. Bailiff France It is an old usage that tends to disappear Solicitor /Barrister

Slovenia It lastes long time. Judge Bulgaria It poses administrative difficulties and takes a lot of time. Attorney Estonia only when a non-EU state is concerned Legal assistant Romania Those persons are not informed about the procedure, the Solicitor /Barrister Regulation is not well known by the people in Romania. Germany Because the German missions abroad are not nearly Bailiff ready for work overload to make deliveries. Portugal Because the service of documents directly it´s more Institution effective Spain Lack of knowledge Solicitor/Attorney Czech We think that Czech courts prefer direct communication Institution Republic between courts. Germany Only in the cases in which the addressee is an EU Bailiff member state.

5.2.2.12.3 Reasons Respondents who have answered “No, never” (23,7%) have been requested to specify for which reasons. The table below shows a selection of the comments received.

Member State Q13A4 Organisation France It would be more even more complicated and intimidating Bailiff than to contact a bailiff who gives an advice and a geographical nearness Germany The delivery via the transmission or delivery points via Lecturer/Profesor registered mail and return receipt is generally sufficient.

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Germany Unless the recipient's address is known, is a notification Bailiff by the authorities of the receiving state usually possible and priority. Germany First, it runs through the post. This is the fastest way. If it Bailiff does not work, set on the digits. And only then if it does not work out, which was notified through diplomatic or consular missions who then immediately ask whether either of the previously listed options were conducted. The direct transmission of the diplomatic or consular channels lasts too long. Especially since the advantage that then the authenticity of the written document to be transmitted is guaranteed, no real advantage. Within the EU documents are never questioned their authenticity. My view is to consider the diplomatic or consular Emergency walkways way as if the two transmission paths (Post and authority) will not work. It is questionable in some states, whether there is a grave difference between the final four of the diplomatic and consular representation. Germany The possibility of a delivery through diplomatic or consular Bailiff representation would be only taken up if the delivery through other means could not be carried out. Germany Because the representations abroad do not effect Other deliveries in Europe.

5.2.2.12.1 Narrative comments

5,6% of the respondents included narrative comments in their answers in the free text field. Member State Q13A5 Organisation Slovenia But some Member States are not accustomed to apply EC Judge Regulation 1393 2007 yet Germany Diplomatic and consular road should remain, but are Bailiff rather seen as Emergency walkways, if one fails another type of transmission. Italy IT IS TOO BUREAUCRATIC TO USE consular or Lecturer/professor diplomatic mode

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5.2.2.13 Electronic transmission

QUESTION 14: From your experience, are documents frequently served by electronic means of communications in your Member State? Most of the respondents (40,6%) that this mean of transmission is never used and 27,5% that only exceptionally.

Frequency of service by electronic means (n=465)

Yes, very frequently 4,3%

Yes, rather frequently 5,6%

No, rather exceptionally 27,5%

No, never 40,6%

Difficult to say 12,7%

NA 9,3%

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5.2.2.14 Problems encountered

QUESTION 15: Which problems concerning electronic service of documents have you encountered or are you aware of?

Although 39% have not encountered or are not aware of any problem, the most common problem (just 11%) seems to be that the acknowledgement of receipt is not filled in completely.

Problems concerning electronic service of documents encountered or aware of (n=465)

Acknowledgement of receipt is not filled in completely 11,0%

Acknowledgement of receipt is not returned 5,4%

Signature on acknowledgement of receipt cannot be 5,4% read

Others 17,0%

None 39,1%

NA 29,2%

% of affirmative answers

5.2.2.14.1 Others

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Respondents who have selected the option “Others” have been requested to specify the type of problems. Member State Q15A6 Organisation Slovakia 1. Electronic method can be used only if the participant Bailiff asks for it 2. judgments cannot be served by electronic means Finland After successful service of documents, the court and the Other addressee may continue discussion by e-mail, especially if it concerns the witness. France language barrier and barrier of procedures peculiar to Lecturer /Professor each country Belgium There isn't proof of notification or signification! Bailiff Austria In Austria, the certified electronic mail (with the Solicitor/ Barrister exception of the Web-ERV) is not very common. Judicial deliveries should be performed only by certified electronic mail. Netherlands It always difficult to judge if the documents have Judge reached the defendant Latvia Lack of experience or access to the electronic signature. NA Lithuania Lack of relevant electronic applications, lack of Judge electronic signature at both receiving and transmitting end of communication. Specific projects are being implemented to enable practical application of electronic service. Slovenia Differences among internal legislations of the Member Legal assistant States concerning the possibility to perform the notification or dispatch of the document by electronic means Belgium no certainty of confidentiality Bailiff France unused procedure until now Bailiff Belgium security - not sure that the right person as addressee Other has been reached Malta Such mode of service is not validly recognised in terms Solicitor/Barrister of our law. Italy THE BEST SOLUTION COULD BE A Lecturer/professor MULTILANGUAGES TICKED ITEMS TRASMISSION LETTER Lithuania It is not possible to provide service of documents by Court clerk electronic means Spain Electronic signature not generalized Solicitor/Attorney Luxembourg No reception due to spams Bailiff Austria Is possible only in relation to the delivery to national Judge lawyers. Cyprus According to Cyprus Law the judicial documents are Other served through the Supreme Court

5.2.2.14.2 Narrative comments

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2,8% of the respondents included narrative comments in their answers in the free text field.

Member State Q15A7 Organisation France it is necessary to encourage this practice but this assumes Solicitor/Barrister the protection of the communicated information and the certainty of reception (complete and clear notices) Spain It´s an excellent idea that the documents and all papers Other that are transmitted shall be exempted from legalization or any equivalent formality. Spain It would be suitable to include information of electronic Institution contacts (e-mail address) and fax number in the request of the transmitting authority Sweden The most common ´electronic´ way to effect service in Court clerk Sweden is undoubtedly through the document´s being read over the phone. Despite the obvious (potential) problems of evidence, this is a means which seem to have caused little trouble. However, service is, more often than not, effected through regular mail as well, which may account for this fact. Technically, i.e. the way the relevant provisions have been drafted, it seems to be possible to employ other electronic means to effect service too, but to my knowledge this is rarely done.

5.2.2.15 Restrictive application of Regulation

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QUESTION 16: From your experience, after the first service of documents under Regulation 1393/2007, is compulsory in your Member State, to provide a national address for the subsequent services?

Responses are very segmented and no conclusion can be taken in one sense or another.

After the first service of documents under Regulation 1393/2007, obligation in your Member State, to provide a national address for the subsequent services (n=465)

Yes, very frequently 14,2%

Yes, rather frequently 14,6%

No, rather exceptionally 11,4%

No, never 17,4%

Difficult to say 27,1%

NA 15,3%

5.2.2.15.1 Narrative comments 9,5% of the respondents included narrative comments in their answers in the free text field. Member State Q16A2 Organisation

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Sweden As far as I am aware, there is no such legal requirement. Court clerk A party to a dispute must, however, when filing an appearance before the court for the first time, provide the court with an address where personal service (which is different from postal service) may be effected. Thus, to my knowledge there is no such provision under domestic law, and, again as far as I know, service effected pursuant to the Regulation scheme is not treated any differently. There is, however, a provision for the situation where one of the parties is not domiciled within the Kingdom of Sweden, in which case he may be enjoined by the court to name a legal representative, domiciled within the EES or , and with whom service may be effected (33 kap. 8 § Rättegångsbalken; Chapter 33, Section 8 of the Rules of Procedure). This ought to apply, mutatis mutandis, in regard to the Regulation as well. Bulgaria depends on the proceedings - if this is a court Bailiff proceeding: yes, the respondent should provide national address; if this is a judgment enforcement proceeding - no, there is no such obligation for the debtor Germany The request for appointment of an agent for service is Bailiff within the scope of EC law ZustellVO no longer allowed in Germany. Germany The recipient abroad is asked to appoint an agent for Bailiff service within the country, otherwise future deliveries made by its posting. Netherlands If there’s not an address given where to serve the Bailiff documents we would be unable to actually serve the documents. We are forced by law to do a research of the address of the mentioned person, yet we would be unable to fulfill such a research with only a name of the defendant. France It is highly preferable to mention the address every time Solicitor/Barrister

Luxembourg It is necessary to indicate an address within every Judge signification. Slovakia It is optional, not compulsory. Other Hungary Under the national law parties not having an address in Institution Hungary must designate an agent for the purposes of service. Germany Originally, the receiver pursuant to § 184 Civil Procedure Bailiff Code was often asked to make a person authorized to designate in Germany. After the Federal Court decision of 02.02.2011 - has declared document number VIII ZR 114/10, the application of § 184 ZPO, the scope of Regulation 1393/2007 is not allowed for no more call - VIII ZR 190/10 document number and the Decision of 11.05.2011 the announcement of a person authorized in Germany according to § 184 of the Code of Civil Procedure.

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Germany This is in §§183, 184 ZPO foreseen; the Federal Judge Supreme Court has declared this, nevertheless, inadmissible in the area of the EuGZVO for (Federal Supreme Court, Urt. V. 5/11/2011 - VIII ZR 114/10). Germany After decision of the BGH from 11.05.2011 - VIII ZR Bailiff 114/10 – not possible any more

5.2.2.16 Direct cross border service of documents

QUESTION 17: From your experience, and related to cross border service of documents, would it be admitted in your Member State the direct cross border service of documents by the person involved?

Most of the respondents (47,1%) consider that the direct cross border service of documents would be admitted in their Member States.

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Possibility of admission in your Member State of the direct cross border service of documents (n=465)

Yes 47,1%

No 31,2%

NA 21,7%

5.2.2.16.1 Reasons for not admitting Respondents who have answered “No” have been requested to provide the arguments against the direct cross border service of documents. The table bellow offers a view on the comments received.

Member Sate Q17A2 Organisation Germany The scope of the regulation is not opened for service Bailiff requests from third countries. The approval is therefore judged by the conventions. Germany has objected to an immediate notification under Article 10 of the Hague Service Convention. Belgium Determination of the proof of the dispatch and the proof of NA good reception Germany A cross-border, direct service in civil matters is generally not Bailiff permitted in Germany. Apply the relevant conventions such as The Hague Convention on service of judicial and extrajudicial documents abroad in civil and commercial matters of 15.11.1965. Requests for service are always addressed to the requested authority, with the mode of transmission is observed. United Kingdom Extrajudicial documents could be as simple as letters or Court clerk emails which clearly would be accepted. The general principle is, I believe, that judicial documents are acceptable if the recipient is prepared to accept service of them Spain Lack of procesal guarantees Attorney Sweden I have no idea whether this is admitted or not. Judge Belgium It is preferable that this goes through a professional Bailiff Netherlands In The Netherlands it is regulated that the bailiff does so. If Bailiff another person than the bailiff does so, then the documents have not been served legally.

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Malta Malta does not have an objection to direct cross border Attorney service as long as the matters fall within the scope of the Regulation. As long as the foreign court having jurisdiction accepts such a service as valid, then it is up to the foreign court to decide whether service is to be allowed directly or not. Furthermore, it is impossible for the authorities to keep track of what is in the post, therefore we do not know how frequently such a method is being used. It all depends on the foreign court having jurisdiction on the matter.

Cyprus Our system only accepts private or judicial service, unless Solicitor/ the applicant obtains a court order. Barrister France Problems of certification of documents, issues of respect for Bailiff the formalism envisaged in the state of origin, and which we don't know a priori (delay, modalities of appearance, ways and forms of appeals etc...) Sweden Service is administered through the courts and permission Court clerk for one of the parties to see to that service is effected is only exceptionally granted and at the court´s sole discretion. Ultimately, I would suspect this has to do with concerns for the other party´s rights, evidentiary problems and the fact that state authority is being exercised. As Article 15 of the Regulation expressly refers to the domestic provisions of the Member State, this also explains why direct cross border service of documents by the person involved would not be permitted, i.e. under domestic law express permission is required (cf. the English procedure for service out of the jurisdiction). Ultimately, allowing such a procedure, practically appealing as it may be, may be seen as an interference with the other concerned Member State´s sovereignty. Hungary Since the service of official documents usually have legal Institution consequences, involvement of authorities or officials is necessary. Lithuania The fear of abuse of rights. Attorney Malta This would however depend on the nature of the document Solicitor/ which is sought to be transmitted; there are documents such Barrister as those applications initiating a law suit which necessarily have to be delivered and notified to the recipient through a court marshal - other documentation such as a judicial letter could be transmitted by postal channels. Electronic means of notification are not available in our Member State. Germany Direct service within operating by ministers, officials or other Bailiff competent persons to beneficiaries within the Federal Republic of Germany is not allowed. Exceptions apply if the Anglo-German Agreement of 20 legal aid March 1928 is primarily applicable (outside the EC Regulation on service, for example, British territories and former British territories such as Australia, Bahamas, Canada, New Zealand, Singapore, Cyprus).

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Germany Deliveries by fax or e-mail are not admissible according to Bailiff the German legal system

Spain There is an unequal acceptance of the direct service which Solicitor/Attorney generates uncertainties. France no guarantee of date of reception; resistance of the bailiffs Solicitor/Attorney Germany The legal aid would have to be defined Bailiff Cyprus According to Cyprus legislation documents must be served Other through the Supreme Court

5.2.2.17 Recomendation of the direct service

QUESTION 18: From your experience, would it be recommendable to admit the direct service of documents? Opinions are very divided in this case and although 40% of the respondents would recommend it, 35,9% would not do so.

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Would it be recommendable to admit the direct service of documents? (n=465)

Yes 40,0%

No 35,9%

NA 24,1%

5.2.2.17.1 Conditions Respondents who would recommend the direct service of documents have been requested to list the possible conditions they would require for admission of this mean of transmission. The following table offers a view on the conditions listed by the professionals.

Member State Q18A2 Organisation Lithuania 1. Only by registered post. 2.For specific procedures. Attorney Romania Acceptance by all the parties Court clerk Poland If both parties are represented by professional attorneys. Solicitor/Barrister

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France it is necessary to have technical security (protection of the secret Solicitor/Barrister of the communicated elements and certainty of reception and of knowledge by the addressee Czech Republic only by notary public or judicial officer Bailiff France Yes, but based on pre-established and uniform forms Solicitor/Barrister Belgium Through a geographically competent bailiff. Institution Belgium If you understand by "person concerned” the demanded one or Bailiff the demanding one, the direct request will pose a problem because the request can be vague, incomplete or incomprehensible. This situation will oblige the requested entity to enter in an epistolary exchange where the cost won't be covered. I am of the opinion that information given by requested entity requires professionalism but quid expenses. Ireland Unless there is some basis for contending that service was not Solicitor/Barrister validly effected in accordance with the Regulation and/or the Rules of the Superior Courts 1986 (as amended). Sweden When it simplifies the proceedings. Court clerk Cyprus When private or judicial service is ineffective. Solicitor/Barrister

Lithuania When service is confirmed by accepting person. Attorney Denmark when voluntary acceptance is to be expected Solicitor/Barrister Spain Without conditions Other Portugal In order to reduce the number of requests to the local services Institution France if guaranteed the date of reception and respect for the article 8 Solicitor/Attorney Spain If generalised accross Europe Solicitor/Attorney

5.2.2.18 Electronic cross border service

QUESTION 19: From your experience, and related to cross border service of documents, would it be admitted in your Member State the electronic service of documents by the person involved? 43,4% believe that it would NOT be admitted in their Member State whereas 36,3% affirm the opposite.

Admission in your Member State of the electronic service of documents (n=465)

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Yes 36,3%

No 43,4%

NA 20,3%

5.2.2.18.1 Reasons for not admitting Respondents who have answered “No” have been requested to provide the arguments against the direct cross border service of documents. The table bellow offers a view on the comments received.

Member State Q19A2 Organisation Belgium Currently not authorised by the law Bailiff

Malta As stated, electronic service is not a valid mode of Solicitor/Barrister notification in terms of our law. Hungary Because in Hungary - according to the law - the court Judge accepts only the official way of services of judicial or extrajudicial documents. The digital signature for the judiciary is not completely set up yet in Hungary.

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France It will pose a problem of proof, this is , that of the good Bailiff reception by the addressee of the notified documents. Slovakia Domestic law is not adapted yet for domestic electronic Other service of documents sent in hard copy from abroad. The possibility of serving electronically from abroad to a person in Slovakia is even more problematic due to lack of control over the authenticity of the electronic documents sent. Germany Recipients not clearly identifiable. Bailiff Austria The lack of uniform safety standards. The certified 1 electronic mail is not yet sufficiently widespread. Sweden I do not think it would work very well. People would say that 8 they had a computer crash and so did not receive the document. Netherlands If the direct service would be admitted we think it would Bailiff create many problems regarding the service of documents. We think it should not be the choice of the defendant to accept the documents of service; the defendant would have the right to not sign any acknowledgement of receipt which would not give any proof that the defendant is known with a procedure/verdict or any other judicial means. To have the documents served by a court bailiff and/or any other assigned authority it would give the proof of service. Furthermore the service would be much faster since the defendant would have the power to delay the acknowledgement of receipt. France A control in the Member state of origin of the good Bailiff regularisation of the act is needed. Malta In our national law, service of documents cannot be carried Attorney out by electronic means, however, in cross-border service of documents, we repeat that it is up to the foreign court having jurisdiction to decide whether such a service is valid or not. So although the ´no´ box is being ticked here, we would still accept incoming service from abroad by electronic means if the foreign court having jurisdiction deems it to be a valid service. United It may depend on the nature of the document. Domestically Court clerk Kingdom electronic service of originating process requires court rules/consent/court permission. France The intervention of a ministerial officer for signification is Bailiff necessary for reasons of legal certainty and of the rights of defense. No guarantee by the fax and the email still tributary on good functioning of the machines of communication (breakdown of pc, fax, printer). Germany Under national law, so far, only a selected group of persons Bailiff who have expressly consented to must be delivered electronically. Belgium Respect for the rights of the addressee!!! security matters Other

Hungary there are specific national rules on valid electronic Public notary document delivery Germany Transmission is possibly unencrypted. Bailiff

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United Until email security and electronic signature have reached a NA Kingdom level of security that is sufficiently high to avoid any possibility of abuse. Portugal In order to reduce the number of requests to the local Institution services

5.2.2.19 Recommendation of the electronic service

QUESTION 20: From your experience, would it be recommendable to admit the electronic service of documents?

46,5% of the respondents affirm that they would recommend the electronic service of documents.

Would it be recommendable to admit the electronic service of documents?(n=465)

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Yes 46,5%

No 33,1%

NA 20,4%

5.2.2.19.1 Conditions Respondents who would recommend the direct service of documents have been requested to list the possible conditions they would require for admission of this mean of transmission. The following table offers a view on the conditions listed by the professionals.

Member State Q20A2 Organisation France Prior acceptance by the opposite party, electronic signature, Bailiff that electronic mail could be read only after unlocking by means of a key of electronic signature generating an automatic acknowledgement of receipt. Sweden Attested by an acknowledgement of receipt, including the date Other of receipt, which is signed and returned by the defendant or without proof of reception but with previous acceptance of this method of service of the defendant.

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France Electronic certificate Bailiff France confirmation of the acknowledgement of receipt with the date Judge of reception Greece Dated acknowledgment of receipt and of understanding the Attorney language of the document by the addressee would be the only condition Belgium From professional to professional Bailiff Spain It depends on the receptor. It would be possible with important Attorney and known entities but neither at all levels nor among individuals. France Tools created by the bailiffs would allow this mode of Bailiff signification Germany Europe-wide introduction of a digital signature with multiple Bailiff encrypted code, amend the relevant regulations

France identity certified by the transmitter, absence of professional Bailiff responsibility of the agent if errors in the transmitted act, certification of the reliability of transmitted parts(for example copy of decision of justice) traceability of exchanges, regulation of expenses, possibility of return according to the same channel (electronic way) recognition of the coC of impression of acts (often it is about acts with many parts) Bulgaria If the country has the obligation to contain the information of Judge e-mail address of citizens. France It would be undoubtedly possible to accept such notification Bailiff after a first signification made by means of a ministerial officer afterwards by procedure on express acceptance of the part defendant and provided that the good reception of documents to be delayed could be controlled: to know, dismissal of an acknowledgement of receipt signed by the part.

Spain The Spanish law demands that applications and information Judge systems used for the transmission by electronic means have to guarantee the control of delays, the identification of organisms responsible for procedures, the ordered dealing of files and the advertisement of procedures. The electronic signature is mandatory. Czech only by notary public or judicial officer Bailiff Republic Spain It would be necessary to control the authenticity of the Court clerk communication and of the content, integrity and reliable steadfastness of the reference of the reception and the date. Also, the added problem would be of how to inform the addressee of his right to refuse to receive the act if this one is not translated opportunely. Cyprus when private or judicial service is ineffective Solicitor/Barrister Italy YES , ONLY IF TRANSLATED IN ALL THE LANGUAGES OF Lecturer/professo MEMBER STATES r

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Portugal Besides the examples that are given, it could be considered a Institution software system where all the information transmitted is encrypted and digital certification is required. This software is available in our country for the use of judges, attorneys and court clerks. France If guaranteed the date of reception and respect of Art.8 Solicitor/Attorney

Spain If it was generalized in the whole Europe and there were Solicitor/Attorney mechanisms adapted to guarantee the date of transfer, reception and identity of the issuer and of the recipient. On the other hand, it is difficult to obtain the assent so that the electronic notification is generalized. Czech Any of given condition would have to be fulfilled. Institution Republic Austria Clear acknowledgment of receipt Judge

Cyprus See answer 19 Other

5.2.2.20 General narrative comments 14,6% of the respondents have provided additional information when requested to include any further proposal and/or suggestion.

Additional comments and/ or suggestions

Member State Q21A1 Organisation

Slovenia - The request for service of documents would be faster, if Solicitor/Barrister transmitting agencies would fill the forms in language of receiving agency (due to language barriers) and if forms would not be written by hand. - Point 7 of the request (a copy of document to be returned with the certificate of service): transmitting agencies have often request to return a copy of the document, but they do not send two copies of the document; or they do not have this request, but send two

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copies of the document.

France 1 - The Requested entities acknowledge reception only very Bailiff seldom. 2 - The delays of signification in the requested state are extremely variable from a country to the other one. It is therefore impossible to know when the act will be meant. 3 - Poland never translates (at least in English) its forms, so that instructions are incomprehensible. Belgium Creation of an European file of registered individuals / Bailiff domiciled in the and creation of an access that for commissioner persons (example: national register of the persons registered in Belgium). Creation and/or harmonisation of benches of data for business firms or others with mention of their legal personality, activity, dissolution or possible liquidation.... Germany Since the central bodies are rarely concerned with problems Bailiff with delivery issues, lack of experience, not all questions are answered. Spain Greater knowledge of the regulation and its application should Court clerk be offered, given the relevance e it has for the good development of the procedure France Debates take place for several months our professional Bailiff authorities to envisage the implementation of electronic signification but difficulties are numerous. It is important to remind that the notification to an addressee implicates the verification at least of his identity and address. How would be these checks in exchanges of electronic data? Germany Regulation 1393/2007 has succeeded not bad. It is important Bailiff that the receiving points of the respective states are known and are updated mainly. Otherwise, there are hardly any problems within the EU. If you are experiencing but which, they are usually quickly resolve. Germany The notification by registered mail / return receipt is Other problematic because of missing or not fully populated return receipts. The notification is in respect to the European enforcement problematic. Spain In general it is a regulation very little known by the courts, up Solicitor/Barrister to the point of that in some procedures the lawyer has had to explain to the official the functioning of the Regulation Bulgaria enlarge the scope of direct service and electronic service, Bailiff remove possibility for a waiver on that from the Member State enhance the information available in the Atlas Austria For the practice of the courts would be very desirable, if in the Institution European Judicial Atlas in civil matters for the possibility was opened and filled out the form to save the court leaves so that they can be corrected again.

The Form 7 (instruction of the receiver via its right of refusal) can now be printed consecutively in all keyed only languages available versions. In practice, however, is usually enclosed with the form in one language, so that the remaining prints are thrown away unused. It would be very useful therefore, provide a possibility to select a specific language version

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(possibly multiple languages).

Sweden I am not familiar with regulation No 1393/2007. Judge

Poland I believe the Regulation should provide a definition of "civil Solicitor/Bailiff and commercial matters" as well as "extrajudicial document". As Little as possible should be left for interpretation. Belgium I think it is a good and useful tool. I have more questions Bailiff related to cross-border execution of European titles, such as those accorded under regulation 805/2004 (language issues for example) Sweden I´m replying on behalf of a small district court in northern Other Sweden. Basically, our only comment is that court personnel are aware of the mere existence of the regulation (after all it is included in the standard edition of the Swedish Code, Svea Rikes Lag). However we may not be fully aware of its implications and we may not have had the opportunity to apply the methods of service created by the regulation. Germany I have answered merely those questions where I have my Judge own experiences; hence, other questions remained unanswered. I ask for your understanding. Slovenia It would be recommended to organize more seminars and Judge training courses about the proper application of EC Regulation 1393 2007 and to exchange useful experience of every Member State. Romania The system should be one, uniform at level of the whole Court clerk Union. Belgium Most serious difficulties of notification or of signification can be Bailiff found in relation to the countries where there aren't liberal Bailiffs as there are in Belgium, France, the Netherlands or Luxembourg. France Electronic transmissions have to be object of a big protection Solicitor/Barrister and do not have to be the only means of transmission of an act Ireland The laws of this state provide for service by electronic means Lecturer/Profess only when a court order is sought to have the documents or served by this method. It would be hard to prove if the person received the documents by this method unless an acknowledgement of receipt is sent by the addressee. Also it would be difficult to obtain e-mail addresses and fax numbers for the purpose of serving the documents. I can see that prior acceptance by the addressee would be necessary in order to ensure that the documents are served. Ireland The principal difficulty with the implementation of the Solicitor/Barrister Regulation is a lack of understanding as to the precise nature of the changes made there under by the relevant domestic authorities. Romania the regulation is not very used in Courts, which are more Solicitor/Barrister tempted to send documents by post or by using lawyers ‘services; we, as lawyers, are also interested in speeding up the procedure, so we better pay a courier to get the documents, instead of waiting for the judge to address to some authority he does not know exactly...

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Finland The service of the documents between Member States is an Lecturer/Profess interesting and very important subject, which should be drawn or special attention. Free movement between Member States will also increase the service of the documents from one Member State to another. More education should be arranged within Member States, for judges, lawyers and court clerks and assistants. Also attention should be drawn to the tools and information channels used when dealing with these issues (electronic systems). Sweden The Swedish Intercountry Adoptions Authority has no Other experience at all of EC Regulation 1393/2007. Netherlands the website with contact information of judicial officers should NA be updated more frequently United There should be a requirement in the regulations that NA Kingdom completion of the instruction form must be in the language of the receiving member state as it can be difficult to assess exactly what documents are to be served or returned with certificate. Sweden This regulation is not applicable to the operation of the Crime Other Victim Compensation and Support Authority (Brottsoffermyndigheten) Austria To improve further the service by mail, the introduction of a Solicitor/Barrister uniform European acknowledgment would be helpful. France An independent professional domiciled in the area of domicile Bailiff of the addressee, specialist in notifications, is absolutely necessary to guarantee a good transmission and consequently the rights of the parties. Sweden We have very few cases where the regulation is applicable Judge since a Nordic agreement from 1974 covers our needs with regard to Denmark, , Finland and . This agreement allows a direct communication between courts in these countries with requests for assistance. The EU Regulation is used once or twice a year. Germany Regarding question 17, I cannot comment because the direct Other service is partially allowed for certain documents. In general, all receiving agencies are once again strongly pointed to the use of forms, as well as to any information not required in the national language, but at least to get in English! Spain In Spain there is a wide unawareness of this Regulation, even Solicitor/Attorney in the courts where it must be applied. On the other hand, in Spain and other EU countries the issue of the languages remains a problem. In my opinion. There should be a mandatory common language so that the procedure could be faster and at least one person at each entity should know that language. Sweden I am not aware of regulation 1393, and I have consequently Judge never been in a situation where it has been applicable as far as to my knowledge. Austria In some member states the delivery functions very well, in Judge other (e.g., Italy) there are more often problems; The costs which must be paid in advance are also an obstacle.

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The forms could also be "nicer” graphically and clearer.

5.3 STATISTICAL DATA CONCERNING THE TRANSMISSION AND SERVICE OF DOCUMENTS

5.3.1 Survey Form

STATISTICAL DATA CONCERNING THE TRANSMISSION AND SERVICE OF DOCUMENTS

Due to the complexity of the data and the information requested to the Central Bodies, the questionnaire was developed in Excel with the purpose of facilitating the filling in by different persons and moments. It was divided in three independent blocks aiming to allow separate delivery of the information.

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5.3.1.1 Tasks Central Bodies

Information to be completed by the Central Bodies

Which type of information do you usually supply to the transmitting agencies and with which frequency? Please introduce an X where it applies. Type of information Never Yearly Quarterly Monthly Several times per month Addresses of the competent receiving agencies Means of receipt of documents Languages

Please indicate any other information you supply and the frequency.

Which type of incidences and problems do you find during the transmission of documents? Please introduce an X where it applies. Insufficient knowledge about the Regulation Lack of reception by the receiving agencies Refusal to accept a document by the addressee Lack of certificate Others (please, specify which ones)

Which solutions do you apply to solve these incidences? Please introduce an X where it applies. Forwarding the request for service to the competent receiving agency Forwarding the request for service to the Central Body of the receiving agency

Others (please, specify which ones)

Approximately how often do you forward, in exceptional cases, at the request of a transmitting agency, a request for service to the competent receiving agency? Please introduce an X where it applies. Several times per month Monthly Several times quarterly Quarterly Once or twice per year Never

Please add any other comment or suggestion you may consider of interest

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5.3.1.2 Global Figures

Please introduce your best approximation. Please remember to indicate 0 in case it is not applicable and to leave the field empty in case you do not have that information.

TRANSMISSION AND SERVICE

How many cases do you handle under the Regulation Services to third Cases under Regulation 1393 National cases 1393/2007 vis-à-vis national cases and services to third countries countries per year? 2009 2010

Average number of days required for providing documents Approximate average of days

Documents served in your country and transmitted from other Member States Documents served in other Member States and transmitted from your country

Please provide any further comments or suggestions you may consider of interest.

Approximate number of Approximate number of Average number of documents transmitted in accordance to the documents in 2009 documents in 2010 Regulation Average number of documents transmitted from your country to other Member States Average number of documents transmitted from other Member States to your country

REQUESTS RETURNED

Approximate number of requests that have been returned Approximate number of cases Approximate number of cases from your country to other Member States because of any of the in 2009 in 2010 following causes. Wrong or incomplete information Wrong agency Language Lack of certificate

Approximate number of cases Approximate number of cases Approximate number of requests that have been returned from in 2009 in 2010 your country to other Member States grouped by returning entity Rejected by the individual Rejected by the receiving agency

Approximate number of requests that have been returned from Approximate number of cases Approximate number of cases other Member States to your country because of any of the in 2009 in 2010 following causes Wrong or incomplete information Wrong agency Language Lack of certificate

Approximate number of cases Approximate number of cases Approximate number of requests that have been returned from in 2009 in 2010 other Member States to your country grouped by returning entity Rejected by the individual Rejected by the receiving agency

Please provide any further comments or suggestions you may consider of interest.

LACK OF CERTIFICATE Approximate number of cases where you have been informed of lack of certificate Number of cases in 2009 Number of cases in 2010 When your country has been the transmitting State When your country has been the receiving State

TYPE OF SERVICE

Approximate number of cases by type transmitted from your country to other Member States Number of cases in 2009 Number of cases in 2010 By transmitting/receiving agencies By post Direct service

Diplomatic mode Electronic transmission

Approximate number of cases by type transmitted from other Member States to your country (receiving State). Number of cases in 2009 Number of cases in 2010 By transmitting/receiving agencies By post Direct service Diplomatic mode Electronic transmission LEGAL AID

Approximate number of cases in which legal aid has been requested related to the application of the Regulation Number of cases in 2009 Number of cases in 2010 Being your country the transmitting Member State Being your country the receiving Member State

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5.3.1.3 Figures by Member State

Please introduce your best approximation. Belgium Bulgaria No. of cases when No. of cases when No. of cases when No. of cases when Belgium is the receiving Belgium is the Bulgaria is the receiving Bulgaria is the How many cases do you handle under the Regulation1393 vis-à- Member State transmitting Member Member State transmitting Member vis other Member States per year? State State 2009 2010 When Belgium is the When Belgium is the When Bulgaria is the When Bulgaria is the receiving Member State transmitting Member receiving Member State transmitting Member Average number of days required for service of documents State State between other Member States and your country Average number of days

Please provide any further comments or suggestions you consider of interest. NUMBER OF REQUESTS RETURNED

Approximate number of requests that have been returned from your country to other Member States because of any of the No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 following causes Wrong or incomplete information Wrong agency Language Lack of certificate

Approximate number of requests that have been returned from No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 your country to other Member States grouped by the returning entity Rejected by the individual Rejected by the receiving agency

Approximate number of requests that have been returned No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 from Belgium to your country because of any of the following causes Wrong or incomplete information Wrong agency Language Lack of certificate Approximate number of requests that have been returned from other Member States to your country grouped by the returning No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 entity Rejected by the individual Rejected by the receiving agency

Please provide any further comments or suggestions you consider of interest. LACK OF CERTIFICATE Approximate number of cases where you have been informed of No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 lack of certificate When your country has been the transmitting State When your country has been the receiving State TYPE OF SERVICE Approximate number of cases transmitted from your country to No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 other Member States by type of service By transmitting/receiving agencies By post Direct service Diplomatic mode Electronic transmission Approximate number of cases transmitted from other Member No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 States to your country by type of service By transmitting/receiving agencies By post Direct service Diplomatic mode Electronic transmission

Please provide any further comments or suggestions you consider of interest. LEGAL AID Approximate number of cases in which legal aid has been No. of cases in 2009 No. of cases in 2010 No. of cases in 2009 No. of cases in 2010 requested related to the application of the Regulation in between other Member States and your country Being your country the transmitting Member State Being your country receiving Member State

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5.3.2 Information gathered

This section summarizes the answers that MainStrat has received concerning this statistical data study. The free text comments have been translated into English in order to guarantee the consistency of the document. Nevertheless, the full set of data received together with the comments in their original languages can be found in Annex 3. Results are offered as provided. In many cases, as shown in the comments attached by the authorities fulfilling the excel file, no data is available.

Austria-AT Belgium- BE Bulgaria-BU Czech Republic- CZ Cyprus-CY

Denmark- Estonia- EE Finland- FI France-FR Germany- GE DK

Greece- GR Hungary-HU Italy- IT Ireland- IE Latvia-LA

Lithuania-LT Luxembourg- Malta-MT Netherlands- NL Poland-PL LUX

Portugal- PT Romania-RO Slovakia-SK Slovenia-SI Spain - ES

Sweden- SE United Kingdom- UK

5.3.2.1 Tasks Central Bodies 5.3.2.1.1 Type of information supplied and frequency QUESTION 1: Which type of information do you usually supply to the transmitting agencies and with which frequency?

The first question aims to analyse the type of information supplied by the Central Bodies to the transmitting agencies.

 The addresses of the competent receiving agencies is the information most frequently supplied, except in the cases of Cyprus, Denmark, Estonia and Luxembourg, where it is never supplied.

 However, in the case of information on means of receipt of documents, the overall frequency is much lower, except for the cases of Bulgaria, Latvia, Netherlands and Poland.  In the case of information regarding languages the frequency is medium.

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Type of information: Addresses of the competent receiving agencies MEMBER STATE FREQUENCY Cyprus, Denmark, Estonia and Luxembourg Never

Germany Yearly

Italy, Romania and Spain Quarterly

Belgium, Finland, Lithuania and Slovenia Monthly

Bulgaria, Czech Republic, Latvia, Netherlands, Poland, Portugal, Several times per Slovakia and Sweden month

Type of information: Means of receipt of documents MEMBER STATE FREQUENCY Cyprus, Denmark, Estonia, Finland, Germany, Luxembourg, Slovakia Never and Sweden

Romania Yearly

Belgium,Italy, Lithuania, Portugal and Slovenia Quarterly

Czech Republic Monthly

Bulgaria, Latvia, Netherland and Poland Several times per month

Type of information: Languages MEMBER STATE FREQUENCY Belgium, Cyprus, Denmark, Germany and Luxembourg Never

Romania Yearly

Estonia, Finland, Netherlands and Poland Quarterly

Latvia, Lithuania, Slovenia and Sweden Monthly

Bulgaria , Czech Republic, Italy Portugal and Slovakia Several times per month

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5.3.2.1.1.1 Other information supplied QUESTION: Please indicate any other information you provide and the frequency Several Central authorities have provided additional comments on other types of information they supply.

Member State Any other information supplied and frequency

The Bulgarian Central Body provides information concerning the fulfillment of certificates and BULGARIA the application of the provisions of Regulation Solicitor/Barrister393/2007.

Communications of the Member States after article. 23 EuVZO (including addresses of the GERMANY responsible receiving agencies), as soon as these become known. It is published through the

ATLAS, the EJN website or communications of the federal contact agencies.

In Latvia the Ministry of Justice of the Republic of Latvia is Transmitting Agency and Central

Body at the same time. But national courts under the Regulation are Applicants (response to LATVIA question is meant to be about them) LUXEMBOURG We try to supply any information on demand This question is not applicable to Malta since the Office of The Attorney General is the

appointed central authority, receiving agency and transmitting agency, therefore employees MALTA within the same office assist each other whenever the need arises. General requests by court on how to proceed when serving documents abroad; how to SLOVAKIA establish the address/whereabouts of the addressee UK- Northern Requests for service are accompanied by a cover letter and a translation of the document to Ireland be served. frequently-post-English. Some countries do not check who are the receiving agencies in UK-Scotland Scotland. We receive large numbers of service requests and have to return requests to transmitting agency with proper instructions.

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5.3.2.1.2 Type of incidences and problems

QUESTION2: Which type of incidences and problems do you find during the transmission of documents?

 In around 48% of the States the problems are due to insufficient knowledge about the Regulation.  37% of the States indicate lack of the reception by the receiving agencies.  In 29,6% it is due to the lack of certificate  In 25,9% of the cases it due to a refusal to accept a document by the addressee

Several Member States have specified other problems:

• Lack of availability of the information in ATLAS in some languages.

• Incorrect fulfilment of the certificates and acknowledgements

• Lack of return of the acknowledgements

• Unidentified address

• Wrong language

• Readable certificates (hand writing) Lack of Insufficient Refusal to reception by MEMBER knowledge accept a Lack of Others (please, specify which the STATE about the document by certificate ones) receiving Regulation the addressee agencies AUSTRIA

BELGIUM X X X

Unfortunately, not the entire information on the web site of the European judicial atlas in civil matters is available in Bulgarian BULGARIA X X language. For this reason the judiciary faces lots of problems with the application of the Regulation. CYPRUS X X X

CZECH X X X REPUBLIC

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DENMARK

certificate filled incorrectly (i.e. documents have not been served, but X2.X there is the date of ESTONIA X X service marked; documents have been served, but the date has not been marked under X2.X) Certificate has sometimes been filled out in foreign language that FINLAND X X is not understood nor accepted by the requesting state. FRANCE NA NA NA NA

Acknowledgments receipt partially do not come back, are not filled or are filled GERMANY X X X X insufficiently; sending of a request to the central office without information of the reasons IRELAND

ITALY X X X

Often the language used to LATVIA X X complete the form is incorrect certificate or documents are LITHUANIA X translated into wrong language,

unidentified address indicated LUXEMBOURG

MALTA X

For Holland, they can just send the documents immediately to the NETHERLANDS judicial officer. They dont have to send it to us. Central Body transmits POLAND X documents only in cases

indicated in art. 3b). PORTUGAL X

the certificate is filled readable (handwriting); lack of financial ROMANIA X X X X resources or access to international fax, email, lack of annex II ; since we do not transmit documents generally, SLOVAKIA X these are the problems which are reported to us SLOVENIA X X X

SPAIN X

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SWEDEN X

UK - E&W X X X

Lack of acknowledgment of UK-NI receipt of documents for service. UK-SC X

5.3.2.1.2.1 Solutions applied

QUESTION 3: Which solutions do you apply to solve these incidences?  44,4% do forward the request for service to the competent receiving agency  Around 26% forward the request for service to the Central Body of the receiving agency  Other solutions applied:

. Inform the involved parties on the application Regulation 1393/27.

. Return the documents and ask the certificate to be filled in correctly

. Translate responses

. Remember the Courts need the to use them

. Return to transmitting agency for proper application of the Regulation

MEMBER Forwarding the request for service Forwarding the request for service to STATE to the competent receiving agency the Central Body of the receiving agency AUSTRIA

BELGIUM X

BULGARIA X

CYPRUS

CZECH X X REPUBLIC DENMARK

ESTONIA

FINLAND

FRANCE NA NA GERMANY X X IRELAND

ITALY

LATVIA X

LITHUANIA X

236 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

LUXEMBOURG X

MALTA

NETHERLANDS X

POLAND X X PORTUGAL

ROMANIA X X SLOVAKIA

SLOVENIA X X SPAIN

SWEDEN

UK - E&W X

UK-NI

UK-SC X

MEMBER STATE Others (please, specify which ones) BELGIUM We are the Central Body We provide interested persons and bodies with information on the application BULGARIA Regulation 1393/27. ESTONIA Return the documents and ask the certificate to be filled in correctly Certificate has sometimes been filled out in foreign language that is not FINLAND understood nor accepted by the requesting state. Letter to the German representation abroad or to the Foreign Office; return with reference to the receiving agencies and the possibility to identify them through GERMANY the judicial atlas; solving problems through the federal contact entity; reference to the responsible receiving agency or request of communication of the special reasons which have led to deliver the application to the central office LITHUANIA returning documents for removal of shortcomings MALTA X In case the Central Body receives the request for service of documents, POLAND documents attached to the form (F3) are returned to the forwarding authority with an indication of the competent receiving authority. ROMANIA translate the responses The possible answers do not make much sense in view of the previous question. We resolve the problem of lack of annex II by advising the receiving SLOVAKIA court to attach the annex, the lack of reception we resolve by advising the transmitting agency to send a reminder to the receiving agency or to the Central Body of the receiving MS. SPAIN Remember the Courts need the to use them All papers are transmitted with the appropriate request for service to the UK-NI competent authority, which does not guarantee a letter of receipt UK-SC Return to transmitting agency for proper application of the Regulation 5.3.2.1.3 Frequency of forwarding of requests

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QUESTION 4: Approximately how often do you forward, in exceptional cases, at the request of a transmitting agency, a request for service to the competent receiving agency? Results obtained indicate very irregular frequency depending on the Member State.

Once or MEMBER Several times Several times Monthly Quarterly twice per Never STATE per month quarterly year AUSTRIA

BELGIUM X

BULGARIA X

CYPRUS X

CZECH X REPUBLIC DENMARK

ESTONIA X

FINLAND X

FRANCE NA NA NA NA NA NA GERMANY X X

IRELAND

ITALY X LATVIA X

LITHUANIA X

LUXEMBOURG X

MALTA X

NETHERLANDS X

POLAND X

PORTUGAL X

ROMANIA X

SLOVAKIA X

SLOVENIA X

SPAIN X

SWEDEN X

UK - E&W X

UK-NI X

UK-SC X

5.3.2.1.4 Other comments or suggestions

238 Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

QUESTION 5: Please add any other comment or suggestion you may consider of interest

COUNTRY COMMENT OR SUGGESTION The required fees for service of documents in some Member States provoke difficulties BULGARIA for the legal practitioners and for the transmitting agencies. As regards question No 1, 2, 3 indicated problems apply bi-directionally (i.e. when the CZECH Czech court is transmitting agency or receiving agency). Question No 2 applies only REPUBLIC when the Czech court is transmitting agency. About 50% of the requests go through the central authority despite the fact that the ESTONIA competent authorities are courts and the contact details of the courts are up-to-date in the Atlas also. Sometimes the competent receiving agency (France, Luxembourg) asks for the payment for service of documents. However often there is no information about the LATVIA bank account details available. By the reason that additional requests have to be made for this information proceedings for service is being delayed. It would be preferable the Member States could indicate all necessary bank account details with the payment. European Judicial Atlas, Section "Service of Documents" (especially notifications, search of receiving authority) should be checked thoroughly every time when there is a need LITHUANIA to serve the documents in Lithuania. If Atlas fails to indicate the receiving local authority of Lithuania, the Lithuanian Contact Point of EJN may be contacted for assistance. There is a discrepancy between the text of the provision of Article 8 par. 1 of the Regulation and the text of Annex II (the Regulation presupposed a refusal by returning the documents served, whereas the Annex II form requires declaration of refusal without reminding the addressee of the need (?) to return also the documents). So the legal significance of making a declaration in Annex II, but NOT returning the documents is unclear. Another problem is the status of Annex II. Most authorities forget to attach it when serving by mail under Article 14 and there is no way of checking that on the part of SLOVAKIA the State of service. Also it should not be necessary to attach Annex II when the service cannot be refused since it is in the official language of the Member State addressed, but the Regulation makes this not at all clear. Plus, the need to attach Annex II in all languages is nonsensical since it makes the cost of postal service higher. It should be sufficient to send the Annex only in the language of the receiving Member State and/or in the language the addressee understand (if there is such indication), since the addressee cannot refuse to accept such documents for service anyway. Same standard should apply to the Annex as well. It would be beneficial if all transmitting agencies specify a time limit for service to avoid UK-NI an open ended obligation on the receiving agency

5.3.2.2 Global figures Note: from this section on, the tables display the information exactly the same way it was received.

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“0” implies that the Member State has included the figure”0” (-) implies that the Member State has given no figure for that cell.

5.3.2.2.1 Transmission and service QUESTION 1: How many cases do you handle under the Regulation 1393/2007 vis-à-vis national cases and services to third countries per year?

Cases under Regulation Services to third National cases 1393 countries

2009 2010 2009 2010 2009 2010

DENMARK - 720 - - - -

ESTONIA 314 205 - - 217 225 FINLAND - - - - 150 150

GERMANY 14.463 16.329 286.483 225.402 11.116 10.589

IRELAND - - 832 1193 50 38

PORTUGAL 585 505 - - 558 756

MALTA 277 382 0 0 - -

ROMANIA 865 998 - - 244 378

SLOVENIA 60 63 1 6 302 236

UK-E&W 9.852 10.395 - - 924 1.322 UK-NI 200 200 - - 5 5

QUESTION 2: Average number of days required for providing documents

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Documents served in your country and Documents served in other Member States RESPONDENT transmitted from other Member States and transmitted from your country

FINLAND 14 days - GERMANY Between 4 and 72 days Between 3 and 90 days IRELAND 1 hour per week 5 days per week LATVIA 20-40 days 20-150 days MALTA 21 days 60-90 days

PORTUGAL 46 days 251 days

ROMANIA 1 or 1 and 1/2 months -

SLOVENIA 20 days 45 days UK-E&W 29 days 74 days UK-NI 30 days 60-90 days

QUESTION 3: Average number of documents transmitted in accordance to the Regulation

Average number of documents transmitted Average number of documents transmitted from your country to other Member from other Member States to your

States country

2009 2010 2009 2010

GERMANY 1-65 per request 1-61 per request 2-21 per request 1-25 per request

LATVIA 701 862 336 365 MALTA 148 220 129 162 PORTUGAL 5.969 11.451 5.726 11.108 ROMANIA 785 777 171 255 SLOVENIA 164 148 60 63 SPAIN - - - 856 UK-E&W 726 778 9.126 9.617 UK-NI 4 - 200 200

5.3.2.2.1 Requests returned

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QUESTION 4: Approximate number of requests that have been returned from your country to other Member States In 2009

Wrong or incomplete Lack of Wrong agency Language information certificate ESTONIA 5 0 20 30 GERMANY 169 63 59 47

LATVIA 10 0 20 5 MALTA 6 - 10 - PORTUGAL 48 - - 1 ROMANIA 17 - - - SLOVENIA 30 11 23 - SWEDEN 4 - - - UK-NI 50 10 - -

QUESTION 5: Approximate number of requests that have been returned from your country to other Member States In 2010

Wrong or incomplete Lack of Wrong agency Language information certificate ESTONIA 0 0 15 50

GERMANY 130 45 43 37 LATVIA 5 0 15 10 MALTA 5 - 15 -

PORTUGAL 39 3 - - ROMANIA 14 - - - SLOVENIA 22 23 15 -

SWEDEN 4 - - - UK-E&W 1005 102 11 - UK-NI 50 10 - -

QUESTION 6: Approximate number of requests that have been returned from your country to other Member States grouped by returning entity.

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Rejected by the individual Rejected by the receiving agency

2009 2010 2009 2010

ESTONIA 15 10 40 55 GERMANY 158 142 11 19

MALTA 2 7 - -

UK-E&W - - - 1118

QUESTION 7: Approximate number of requests that have been returned from other Member States to your country in 2009

Wrong or incomplete Lack of Wrong agency Language information certificate

GERMANY 29 17 12 2 LATVIA 0 3 0 0 MALTA 0 0 0 0 UK-NI 0 - - -

QUESTION 8: Approximate number of requests that have been returned from other Member States to your country in 2010

Wrong or incomplete Wrong Lack of Language information agency certificate GERMANY 25 12 7 4 LATVIA 0 2 0 0

MALTA 0 0 0 0 QUESTION 9: UK-NI 0 - - -

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Approximate number of requests that have been returned from other Member States to your country grouped by returning entity.

Rejected by the individual Rejected by the receiving agency

2009 2010 2009 2010

GERMANY 82 70 7 10 MALTA 0 0 0 0

QUESTION 10: Please provide any further comments or suggestions you may consider of interest. Denmark: The Ministry of Justice does not see any major problems in this matter. Although it does happen that a request is returned to another Member State because the person or company apparently is not residing in Denmark.

5.3.2.2.2 Lack of certificate QUESTION 11: Approximate number of cases where you have been informed of lack of certificate

When your country has When your country has been been the transmitting State the receiving State

2009 2010 2009 2010

ESTONIA 40 50 10 10 GERMANY 7 4 1 2 LATVIA 0 0 5 10 MALTA 0 0 0 0 PORTUGAL - - 1 -

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5.3.2.2.3 Type of service QUESTION 12: Approximate number of cases by type transmitted from your country to other Member States in 2009

By transmitting/receiving Direct Diplomatic Electronic By post agencies service mode transmission

almost all DENMARK - - - very few requests ESTONIA 20% 30% 40% 5% 5%

GERMANY 4.670 2.627 182 89 0 LATVIA 701 - - - - MALTA 148 0 0 0 0 PORTUGAL 0 271 0 - 0

ROMANIA 777 - - - - SLOVENIA - ALL - - -

UK-NI - 4 - - - UK-SC We do not keep numbers - - - - A QUESTION 13: Approximate number of cases by type transmitted from your country to other Member States in 2010

By transmitting/receiving Direct Diplomatic Electronic By post agencies service mode transmission

almost all DENMARK - - - very few requests ESTONIA 20% 20% 40% 5% 15%

GERMANY 4.528 3.925 215 64 2

LATVIA 862 - - - -

MALTA 220 0 0 0 0

PORTUGAL 0 222 0 - 0

ROMANIA 998 - - - -

SLOVENIA - ALL - - -

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UK-E&W 778 - - - - UK-NI - 0 - - - UK-SC We do not keep numbers - - - -

QUESTION 14: Approximate number of cases by type transmitted from other MSs to your country (receiving State) in 2009

By transmitting/receiving Direct Diplomatic Electronic By post agencies service mode transmission ESTONIA 30% 50% 10% 4% 6% GERMANY 4.814 1.423 381 25 0 LATVIA 336 - - - - MALTA 129 0 0 0 0 PORTUGAL - 290 0 - 0 ROMANIA 171 - - - - SLOVENIA - ALL - - - UK-NI - 200 - - - We do not keep UK-SC - - - - numbers QUESTION 15: Approximate number of cases by type transmitted from other MSs to your country (receiving State) in 2010

By Direct Diplomatic Electronic transmitting/receiving By post service mode transmission agencies ESTONIA 27% 50% 10% 3% 10% GERMANY 3.962 1.462 298 39 2 LATVIA 365 - - - - MALTA 162 0 0 0 0

PORTUGAL - 284 0 - 0 ROMANIA 255 - - - - SLOVENIA - ALL - - - UK-E&W 9617 - - - - UK-NI - 200 - - -

We do not keep UK-SC - - - - 5.3.2.2.4 numbers Legal

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aid QUESTION 16: Approximate number of cases in which legal aid has been requested related to the application of the Regulation

Being your country the transmitting Being your country the receiving Member State Member State

2009 2010 2009 2010

GERMANY 21 22 0 5 MALTA 0 0 0 0

SLOVENIA - - 10 10 We do not We do not UK-SC - keep numbers keep numbers

5.3.2.2.5 Additional comments The comments listed below include additional information received from the providers of information at several Central Authorities. The full list of comments can be found in Annex 3.

MEMBER STATE COMMENTS Unfortunately due to the now decentralised processing of service of documents we do not have the statistical data required. //I am sorry to have to AUSTRIA answer that there are no statistics at all. I would like to express the enthusiasm of the National Chamber of Judicial Officers in initiatives like these, and we are very much aware of the importance of a legal and statistical follow-up in these matters. However I regret to inform you that the National Chamber does not have any statistical information BELGIUM concerning the service of documents in general at her disposal. Unfortunately, we are not able to provide you with any accurate numbers of cases handled either according to the Regulation 1393/2007 or according to the other international instruments because the Czech courts are obliged to hold statistical data only on cross-border cases in general. They do not make any CZECH REPUBLIC distinction between the type/category of requests (request for service of

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documents, request for taking of evidence, any other legal aid). Moreover, they do not have any separate statistics for the request from EU and from the third countries. On the basis of my previous information I can provide you only with overall number of requests regarding cross-border requests from foreign courts to Czech courts. 2010 - 2628 requests 2009 - 2472 requests 2008 - 2342 requests The Ministry of Justice does not monitor requests from the Czech courts to foreign courts. Please find Estonia's Central Authority's answers. Unfortunately we have no ESTONIA more info to give you. Please note that we do not have statistics concerning the incoming and outgoing FINLAND requests that are normally sent directly from and to local agencies. Unfortunately, France is not able to answer your questions except for a few: in France the central body is not involved in the transmission of the documents to be served. The transmission is performed directly between the transmitting and receiving agencies, in accordance with the provisions of article 4. The bailiffs are both transmitting and receiving agencies for the application of this EC regulation. When the central body, i.e. the French Ministry of justice and liberties, receives by mistake documents from a Member State, they are sent back to the transmitting agencies or courts. Please find attached, for each country, a list of cases in which documents were FRANCE transmitted in the wrong way in 2009 and 2010 To summarize our efforts on the questionnaire I can state as follows: - Answering all the questions caused a lot of work and trouble. - The result is not an exact overview on the German situation but a rough estimation and should be regarded as such. … I have to repeat this for general interests, is a Federal State with 16 Ländern. The Länder are competent and responsible to execute the legal assistance in civil matters in the field of service and evidence. Every questionnaire has to be answered with the substantial help of the Länder. The national experts dealing with the Service Regulation do not all speak English. Germany is also a State which at least in our "playground" does not rely on national/federal statistics to prove the good or bad functioning of an EU legal instrument. So in every single case it is necessary for the Länder to involve the many German courts and other executing authorities for help. For this reasons and looking into the future I highly recommend -again- to take note of the special German situation. In the end I would like to draw your attention the two problems with regard to the "forms" of the Service Regulation.1. Is there a revision of the form in annex II ongoing? The Bulgarian, Greek and Polish language versions seem to be different from the German version. 2. For the outgoing applications is it sufficient to use the German language form of Annex I together with the GERMANY language form of the receiving State? From our point of view is it useless and (Solicitor/Barrister6 waste of paper to provide the addressee with a Form being 23 pages thick and Länder) containing all 23 language versions of Annex I. As to the statistical data, we have decentralised system in Hungary therefore it would be extremely difficult to ask all courts to report such detailed information. HUNGARY Moreover they do not collect such statistics so it would not be possible at all. I am the transmitting officer on behalf of the Dublin County Registrar in Ireland. The information I have included only refers to documents processed in the Dublin area. I am unable to submit the information you require for your survey as IRELAND I do no collate this kind of information. I attach the information I have in relation

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to the time spent on processing the documents and quantity of documents processed for the years 2009 and 2010. Since the Ministry of Justice is a Central Authority for the functions listed in Article 3 of the Regulation, we are not able to provide detailed statistics. Therefore, we have filled in the first page „Central Bodies“ only. Please accept LITHUANIA our apology for the delay. LUXEMBOURG For the chapter Global figures: we don't have any statistics about these topics. Perhaps you could get the information at the "Chambre des huissiers de justice" I only answered the questions for the Central body, because we don't have the NETHERLANDS global figures for Holland. We have finally gathered all the possible data from our statistic program. In spite of all our efforts, we do hope that the figures that we have collected may be PORTUGAL satisfactory for your study. Thank you once more for your comprehension. Just a note of clarification to the pages „Global figures“ and „By Member States“: the Central Body does not in principle „handle“ cases of service thus the questions are not applicable and no statistics are available in the Ministry of Justice and/or courts as to the number of cases of service handled under the SLOVAKIA Regulation (either as outgoing or incoming). Unfortunately, at the moment, we do not have all requested data and we have just been able to fulfill the first sheet and , from the second one, the number of requests received in Spain in 2010 from other Member States. Nevertheless, we are performing the necessary actions with the purpose of being able to facilitate SPAIN them in further studies. Regrettably, most of the information required is not available, wherefore no SWEDEN information have been given in those cases. As stated on the sheet, this response contains figures for the jurisdiction of UK-England & England and Wales. Some of the cells were left blank, as we do not collect Wales statistics on those aspects. Please find attached completed questionnaire from the Northern Ireland Central UK-NORTHERN Authority who deal with these applications. As you will note from the response IRELAND this is only completed for Northern Ireland and not the rest of the UK

UK-Scotland We do not keep numbers

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5.3.2.3 Figures by Member State 5.3.2.3.1 Number of cases in 2009 and 2010 How many cases do you handle under the 1393 vis-à-vis other Member States per year?- YEAR 2009

Austria Belgium Bulgaria Austria is the Austria is the Belgium is the Belgium is the Bulgaria is the Bulgaria is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 3 - 5 4 5 GERMANY 14.715 5.124 871 734 46 95 ITALY 604 418 30 LATVIA 4 0 0 - PORTUGAL 1 4 16 25 2 1 ROMANIA 47 19 8 3 4 - SWEDEN 63 - 39 - 2 SLOVENIA 114 52 3 3 1 - UK-E&W 14 272 23 397 4 16

Cyprus Czech Republic Denmark Cyprus is the Cyprus is the Czech Republic Czech Denmark is the Denmark is the receiving Member transmitting Member is the receiving Republic is the receiving transmitting State State Member State transmitting Member State Member State Member State CYPRUS - - - 3 - - GERMANY 4 31 377 469 217 652 ITALY 12 72 12 LATVIA 7 2 23 PORTUGAL 0 0 0 0 4 1 ROMANIA 2 2 - 1 SWEDEN 2 - 11 - 0 SLOVENIA - 3 2 UK-E&W 20 59 6 124 13 58

Estonia Finland France Estonia is the Estonia is the Finland is the Finland is the France is the France is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS - 1 3 2 8 GERMANY 14 24 37 87 2391 2626 ITALY 3 18 3630 LATVIA 48 14 7 PORTUGAL 0 0 0 0 79 132 ROMANIA - 1 31 19 SWEDEN - 5 0 128 SLOVENIA - 2 6 UK-E&W 14 14 4 36 46 3390

Germany Greece Ireland Germany is the Germany is the Greece is the Greece is the Ireland is the Ireland is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 3 4 15 150 1 4 GERMANY - - 716 327 12 188 ITALY 1780 154 12 LATVIA 125 1 110 PORTUGAL 23 35 2 2 1 1 ROMANIA 237 61 24 8 2 SWEDEN 212 - 61 1 SLOVENIA 49 19 - UK-E&W 106 1554 20 245 130 34

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Lithuania Luxembourg Malta Lithuania is the Lithuania is the Luxembourg is the Luxembourg is the Malta is the Malta is the receiving MS transmitting MS receiving MS transmitting MS receiving MS transmitting MS CYPRUS 5 2 1 2 GERMANY 83 81 401 462 13 29 LATVIA 72 5 2 PORTUGAL 0 1 2 6 0 0 ROMANIA SWEDEN 22 2 1 SLOVENIA UK-E&W 5 70 12 42 8 71 Netherlands Poland Portugal Netherlands is Netherlands is Poland is the Poland is the Portugal is the Portugal is the the receiving the transmitting receiving MS transmitting MS receiving MS transmitting MS CYPRUS MS MS GERMANY 2 28 2 23 LATVIA 1396 2167 2406 1274 54 216 PORTUGAL 13 27 4 ROMANIA 14 6 1 5 282 271 SWEDEN 12 5 5 4 SLOVENIA 58 149 6 UK-E&W 1 3 1 34 288 28 1092 34 58 Romania Slovakia Slovenia Romania is the Romania is the Slovakia is the Slovakia is the Slovenia is the Slovenia is the receiving MS transmitting MS receiving MS transmitting MS receiving MS transmitting MS CYPRUS 1 10 4 GERMANY 518 265 125 167 130 82 LATVIA 0 3 0 PORTUGAL 0 0 0 1 0 1 ROMANIA 4 SWEDEN 9 5 14 SLOVENIA 6 32 UK-E&W 12 54 4 76 1 21 Spain Sweden United Kingdom Spain is the Spain is the Sweden is the Sweden is the UK is the UK is the receiving MS transmitting MS receiving MS transmitting MS receiving MS transmitting MS CYPRUS 3 6 1 10 45 11 GERMANY 361 1428 57 248 94 1760 LATVIA 9 59 144 PORTUGAL 64 45 4 1 47 3 ROMANIA 78 10 2 15 SWEDEN 24 0 7 SLOVENIA 4 4 UK-E&W 120 313 6 69 N/A N/A

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How many cases do you handle under the Regulation 1393 vis-à-vis other Member States per year?- YEAR 2010

Austria Belgium Bulgaria Austria is the Austria is the Belgium is the Belgium is the Bulgaria is the Bulgaria is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 4 10 4 28 6 GERMANY 10.847 4.795 1022 649 48 91 ITALY 800 690 35 LATVIA 14 8 0 0 PORTUGAL 0 4 8 16 0 1 ROMANIA 34 27 8 5 7 3 SWEDEN 54 27 1 SLOVENIA 110 92 3 2 UK-E&W 14 252 17 365 6 30

Czech Republic Cyprus Denmark Czech Republic is the Czech Republic is Cyprus is the Cyprus is the Denmark is the Denmark is the receiving Member the transmitting receiving transmitting receiving transmitting State Member State Member State Member State Member State Member State CYPRUS 4 GERMANY 353 421 2 52 187 592 ITALY 50 40 15 LATVIA 4 13 26 PORTUGAL 0 0 0 0 3 3 ROMANIA 7 5 8 3 3 SWEDEN 5 0 0 SLOVENIA UK-E&W 9 139 8 149 16 71 Estonia Finland France Estonia is the Estonia is the Finland is the Finland is the France is the France is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 1 10 2 9 GERMANY 15 21 79 61 2.222 2.124 ITALY 12 18 3.780 LATVIA 86 6 8 PORTUGAL 1 0 0 0 47 75 ROMANIA 54 37 SWEDEN 13 0 584 SLOVENIA 1 9 UK-E&W 1 12 5 45 88 3675 Germany Greece Hungary Germany is the Germany is the Greece is the Greece is the Hungary is the Hungary is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 2 5 8 280 1 3 GERMANY 622 340 126 223 ITALY 143 100 100 LATVIA 103 3 0 PORTUGAL 30 25 6 4 0 0 ROMANIA 230 53 17 3 72 14 SWEDEN 165 64 18 SLOVENIA 33 11 UK-E&W 129 1492 17 295 12 22

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Italy Ireland Latvia Italy is the receiving Italy is the transmitting Ireland is the Ireland is the Latvia is the Latvia is the Member State Member State receiving transmitting receiving transmitting Member State Member State Member State Member State CYPRUS 1 3 13 10 GERMANY 548 1739 3 184 97 48 ITALY 15 10 LATVIA 14 115 PORTUGAL 13 25 3 0 0 1 ROMANIA 276 35 12 SWEDEN 95 0 48 SLOVENIA 12 14 UK-E&W 55 591 142 20 4 200 Lithuania Luxembourg Malta Lithuania is the Lithuania is the Luxembourg is Luxembourg is Malta is the Malta is the receiving Member transmitting Member the receiving the transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 8 3 6 GERMANY 96 72 372 474 6 37 ITALY 20 90 80 LATVIA 106 5 1 PORTUGAL 2 2 4 7 0 0 ROMANIA 12 SWEDEN 17 14 1 SLOVENIA UK-E&W 1 94 4 55 7 97

Netherlands Poland Portugal Netherlands is the Netherlands is the Poland is the Poland is the Portugal is the Portugal is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 7 35 2 37 GERMANY 1.249 2.187 2.081 1.247 91 153 ITALY 150 200 25 LATVIA 24 14 2 PORTUGAL 10 9 1 8 236 222 ROMANIA 4 2 8 13 13 SWEDEN 42 162 3 SLOVENIA 1 1 6 UK-E&W 26 272 28 1130 29 54

Romania Slovakia Slovenia Romania is the Romania is the Slovakia is the Slovakia is the Slovenia is the Slovenia is the receiving Member transmitting Member receiving transmitting receiving transmitting State State Member State Member State Member State Member State CYPRUS 5 12 9 GERMANY 472 261 141 111 150 86 ITALY 360 96 140 LATVIA 0 3 2 PORTUGAL 1 0 0 0 0 0 ROMANIA 2 7 1 SWEDEN 13 8 21 SLOVENIA 1 4 2 28 UK-E&W 9 48 6 154 3 28

Spain Sweden United Kingdom Spain is the receiving Spain is the Sweden is the Sweden is the UK is the UK is the Member State transmitting Member receiving transmitting receiving transmitting State Member State Member State Member State Member State CYPRUS 2 8 50 12 GERMANY 363 1319 49 194 94 1.595 ITALY 130 24 45 LATVIA 17 46 242 PORTUGAL 46 48 2 2 44 6 ROMANIA 108 11 10 34 2 SWEDEN 30 0 11 SLOVENIA 4 UK-E&W 127 250 15 77 N/A N/A

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UK-England & Wales: The figure for documents served in England and Wales represents the number of days between the date the documents arrived at our receiving agency and the date they were served. The figure for documents served in other Member States represents the number of days between the date the documents were sent out from England and Wales to when the notification arrived back at our agency as the notifications of service do not always give clear dates of service. As a result these figures may be longer than the actual length of time taken to serve the documents.

5.3.2.3.2 Other questions

There is no data from the majority of the States in relation to the remaining questions:  Average number of days required for service of documents between other MSs and your country

 Number of cases transmitted to other Member States by transmitting/receiving agencies  Number of requests returned due to specific reasons  Number of cases transmitted to/from other Member States by transmitting/receiving agencies

However the information provided by Latvia , Portugal and UK-E&W can be found integrally in Annex 3.

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6 REFERENCES » BRUNEAU, Chantal: “Le Traité d'Amsterdam et la coopération judiciaire en matière civile: transformation en règlements communautaires de quatre conventions européennes”, La semaine juridique. Doctrine, Paris, a. 74 n. 43-44 (25 Oct. 2000), 266. » BURKHARD, H.:”Die Zustellung von Schriftstücken im Europäischen Justizraum”, NJW, 2001, p.20. » CASADO ROMÁN, J.: “Análisis del Reglamento 1393/2007 sobre la notificación y traslado en los estados miembros de documentos judiciales y extrajudiciales en materia civil o mercantil”, Diario La Ley, ISSN 1138-9907, Nº 7124, 2009. » CORNETTE, F. La notification des actes à l’étranger : l’état du droit communautaire; Gazette du Palais, 20-21 février 2009, 129e année, Nos 51 à 52, p. 11. » HESS, B: “Die Europäisierung des internationalen Zivilprozessrechts durch den Amsterdamer Vertrag-Chancen und Gefahren”, NJW, 2000, p.23 » HESS, B: “Die Zustellung von Schriftstücken im Europäischen Justizraum”, NJW, 2001, p.15. » LAPORTE, Ch.: “Signification et des actes dans les États membres de la CEE”, La Semaine Juridique, núm. 43-44, pp. 1947-1951, 2000. » MILÁNS PORTOLES, L: “La protección de los derechos de defensa del demandado en rebeldía en el extranjero por una deficiente notificación. Nuevas persectiva en el espacio judicial europeo”, AEPDIPr, t.0, 2000, p. 367-385. » MATHIEU, A. La signification électronique... doit-on s'en méfier ?! ; Liber Amicorum Jacques Isnard, Éditions Juridiques et Techniques, Paris 2009, p. 255. » PÉREZ MILLA, J.: La notificación judicial internacional, Granada, Comares, 2000. » QUADROS, Fausto de, e MARTINS, Ana Maria Guerra, Contencioso comunitário, Almedina, 2002. » RANCÉ, Pierre, e BAYNAST, Olivier, L'Europe judiciaire: enjeux et perspectives, Dalloz, 2001. » RIBEIRO, António da Costa Neves, Processo Civil da União Europeia : principais aspectos - textos em vigor, anotados, Coimbra Editora, 2002. » SCHACK, HAIMO: “Transnational Service of Process: A Call for Uniform and Mandatory Rules”, Rev. dr. unif., nº 4- 2001, pp. 827-839. » SCHLOSSER, P: “Jurisdiction and International Judicial and administrative co-operation”, Rec. des Cours, 2000, vol.284, p.9-430

EUROPEAN DOCUMENTS

» OJ C 368, 20.12.1999. Opinion of the Economic and Social Committee on the ‘Proposal for a Council Directive on the service in the Member States of judicial and extra judicial documents in civil or commercial matters. » A5-0060/1999: Report on the proposal for a Council Directive on the service in the Member States of judicial and extra judicial documents in civil or commercial matters (Hughes procedure) -

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Committee on Citizens' Freedoms and Rights, Justice and Home Affaire (Rapporteur: LECHNER Kart) » OJ C 189, 7.7.2000. European Parliament legislative resolution on the proposal for a Council Directive on the service in the Member States of judicial and extra judicial documents in civil or commercial matters (COM(1999) 219 - C5-0044/1999 - 1999/0102(CNS)) » COM(1999) 219 final: Proposal for a COUNCIL DIRECTIVE on the service in the Member States of judicial and extra judicial documents in civil or commercial matters » OJ C 311 E, 31.10.2000, Amended proposal for a Council Regulation on the service in the Member States of judicial and extra judicial documents in civil or commercial matters (1) » COM (2000) 75 final: Amended proposal for a COUNCIL REGULATION on the service in the Member States of judicial and extra judicial documents in civil or commercial matters » OJ L 160, 30.06.2000. Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extra judicial documents in civil or commercial matters. » COM/2004/0603 final: Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the application of Council Regulation (EC) 1348/2000 on the service in the Member States of Judicial and Extrajudicial documents in civil or commercial matters {SEC(2004)1145} » COM/2005/0146 final: Proposal for a Council Decision concerning the signing of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters » COM/2005/0146 final - CNS 2005/0056: Proposal for a Council Decision concerning the conclusion of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. » COM/2005/0305 final - COD 2005/0126: Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. » OJ C 88, 11.4.2006, p. 7–8: Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of 29 May 2000 on service in the Member States of judicial and extrajudicial documents in civil or commercial matters (COM(2005) 305 final — 2005/0126 (COD)) » OJ C 292E , 1.12.2006, p. 94–95: European Parliament legislative resolution on the proposal for a Council decision concerning the conclusion of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (COM(2005)0146 - C6-0306/2005 - 2005/0056(CNS)) » OJ C 303E , 13.12.2006, p. 69–69: European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (COM(2005)0305 - C6-0232/2005 - 2005/0126(COD)) » OJ C 193E , 21.8.2007, p. 13–55: Common Position (EC) No 10/2007 of 28 June 2007 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European

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Parliament and of the Council 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 » Consolidated version of the communications of the Member States (updated) (Updated: 29.07.2011 » Manual of receiving agencies (updated:29.07.2011):Contents / Manual » Convention de la haye du 15 novembre 1965 relative à la signification et à la à l’étranger des actes judiciaires et extrajudiciaires en matière civile ou commerciale (convention « ») aperçu de la convention » Practical handbook on operation of the Hague convention of 15 November 1965 on the service abroad of judicial and extra judicial documents in civil or commercial matters. July 2003 JURISPRUDENCE » C-233/08 Judgment 2010-01-14 Kyrian » C-14/08 Judgment 2009-06-25 Roda Golf & Beach Resort » C-14/07Judgment 2008-05-08 Weiss und Partner » C-283/05 Judgment 2006-12-14 ASML » C-473/04 Judgment 2006-02-09 Plumex » C-443/03 Judgment 2005-11-08 Leffler Area of Freedom, Security and Justice

257 European Commission - Directorate-General for Justice Study on the application of Council Regulation (EC) No 1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters

Luxembourg: Publications Office of the European Union 2014 — 257 pp. — 21×29.7 cm

ISBN: 978-92-79-34791-7 doi: 10.2838/84790 DS-04-13-124-EN-N doi: 10.2838/84790