The European Commission has released today its proposal for a new Service Regulation.
Key amendments include:
This Article partially amends the structure of the current wording and introduces a distinction as to the formulation of the scope of application between the judicial and extrajudicial documents. The current language of the provision on extrajudicial documents remains. However, as regards judicial documents, the proposal clarifies that the Regulation applies in all situations where the domicile of the addressee is in another Member State. In doing this, the Regulation tries to put an end to the current bad practice in which defendants in another Member States are served in the territory of the Member State of origin through alternative or fictitious methods of service of documents, as permitted by the procedural law of the Member State of origin, irrespective of the information on the foreign address of the defendant at the disposal of the court or judicial authority seised with the proceedings. With the new scope wording, courts would not be able to carve such situations out of the scope of the Regulation by simply qualifying the service of the documents as ‘domestic’. This higher standard, by which all instances of service of documents are obligatorily covered by the scope of the Regulation when the addressee is domiciled in another Member State, only applies to the service of the documents instituting the proceedings. The ‘service of process’, the delivery of the document to the addressee which informs him/her about the initiation of the foreign proceedings, has an outstanding relevance in the protection of the rights of the defence, and should therefore be strengthened with appropriate safeguards. As to the subsequent instances of service of judicial documents in the course of a judicial proceeding, the extra protection is less relevant. This is because the proposed new Article 7(a) may be applied for these documents. In addition, national laws may maintain provisions which oblige the addressee to appoint a representative to serve documents on him/her in the territory of the Member State of origin. Paragraph 2 makes it clear that Article 3c of the Regulation applies also in situations where the address of the addressee is not known. Paragraph 3 of the Article repeats the wording of recital Article 8 in the Regulation currently in force, thereby creating legal certainty around the legislative character of this provision.
This Article lays down that communication and exchange of documents between sending and receiving authorities is carried electronically, through a decentralised IT system made up of national IT systems interconnected by a secure and reliable communication infrastructure. Paragraph 6 ensures that alternative (traditional) means of communications are used in cases of unforeseen and exceptional disruption of the IT system. The introduction of the new channel of communication and exchange of documents through the IT system also implies adaptations in Articles 4 and 6, as well.
This Article lays down that Member States must provide assistance in locating the whereabouts of a recipient in another Member State. The proposal offers three alternative options, from which each Member State must provide at least one in its territory for persons asserting their rights from another Member States. Each Member State must notify the Commission which of the three options it will offer under the Regulation. The three options are: judicial assistance through authorities designated by the Member States; providing access to public domicile registers through the e-justice Portal; or providing detailed information via the e-justice Portal on available tools for locating persons in their territories.
This new Article acknowledges existing laws and practice in several Member States, according to which foreign parties to a proceedings may be required to appoint a representative to serve documents in the proceedings on them in the Member State of the proceedings. This option would only be available after that party has been duly served with the document instituting the proceedings. To provide an appropriate alternative for foreign litigants to whom such an obligation (searching and paying for such a proxy in another Member State) would create insurmountable challenges, the Regulation provides an alternative by using Article 15a (b) on electronic service of documents.
The proposal improves the procedure on the right of the addressee to refuse to accept the document if it is not drawn up or translated into an appropriate language. The amendments are in line with the relevant case-law of the Court of Justice [Judgment of the Court of 16 September 2015 in Case C-519/13, Alpha Bank Cyprus, ECLI:EU:C:2015:603; order of the Court of 28 April 2016 in Case C-384/14, Alta Realitat S.L., ECLI:EU:C:2016:316].
The proposal obliges the postal service providers to use a specific return slip (acknowledgement of receipt) when serving documents by post under the Regulation. Paragraph 3 of the Regulation introduces a minimum standard concerning persons to be regarded as eligible ‘substituting recipients’ if the postal service provider cannot hand over the document on the addressee in person. The solution is based on Article 14 of Regulation (EC) No 805/2004 19 and Regulation (EC) No 1896/200620 and the judgment of the Court of Justice in Case C-354/15, Henderson .
This provision extends the scope of the existing Article in two aspects: Firstly, it no longer requires the applicant to have an interest in the proceedings, thereby allowing transmitting agencies and courts seised with the proceedings to use this way of service. Secondly, direct service would be applicable in the future in the territory of all Member States.
The proposal introduces the electronic service of documents as an additional alternative method of service under the Regulation. In fact, this provision treats this type of the service of documents as an equivalent of service by post. . The provision legitimises the electronic sending of a document from the user account of the sender directly to the user account of the recipient as a valid method of service of documents under the Regulation, provided one of the alternative conditions included in paragraphs (a) and (b) is met.
Amendments in this Article were proposed to reduce the existing fragmentation in national systems. There are two major changes in the proposal. Firstly, the court seised with the proceedings will be required to send an alert message about the initiation of the proceedings or about the default judgment to the available user account of the defendant in absentia. Secondly, the time period for the availability of the extraordinary review in paragraph 4 is uniformly set to two years as of the issuance of the default judgment.
This provision sets out that the Commission shall establish a detailed programme for monitoring the outputs, results and impacts of this Regulation”.
The proposal may be accessed here.