Problems of interpretation regarding the European Regulation on Service. Hausmann, Rainer. The European Legal Forum (E) 1,2-2007, 8-20

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1 Hausmann, Rainer Problems of interpretation regarding the European Regulation on Service The European Legal Forum (E) 1,2-2007, IPR Verlag GmbH München The European Legal Forum - Internet Portal Literature Doc

2 I-8 Issue 1/ The European Legal Forum for the development of a more congruous practice of the respective instruments in the jurisdictions considered. The European Commentary is however more than a format of uniform legal publication. It introduces an important element of legal thinking, i.e. of a subject oriented structuring of the information, into the context of electronic information. As such it is an important structure element of the unalex system and of the unalex method The network unalex as a stimulus for the international legal research It was said before that the creation of an international system of uniform legal information is primarily a research project, which needs to rely on research of the highest possible standards. The unalex method is based on two main concepts under which the uniform legal information is formed. They consist (1) in the formation of teams of authors from different jurisdictions and (2) in a concept of the organisation of the work which distinguishes between editorial work and research, allowing the researchers to focus on the scientific part of the work. The first concept can be explained from the concept under which the European Commentary is prepared. It is based on teams of authors from different jurisdictions, who join their research work in order to produce the commentary as a legal publication of European nature. In order to produce the complex work of the European Commentary, they contribute to different functions: Some authors contribute the comments on certain articles of the instrument, whereas others take the responsibility of a language author for a certain language edition of the European Commentary. Each author contributes information and critical assessment from his or her jurisdiction. The European Commentary therefore is by nature the joint work effort of a network of researchers, who together create a work of European dimension. The second concept can be explained with reference to the example of the formation of the unalex case collection. In general, the collecting and the editing of cases are typically the work of publishers but not necessarily that of researchers. In the field of uniform law, for the preparation of a well edited collection of cases regarding certain instruments, the contribution of researchers is instead indispensable. Other than in the practice of some of the above named specialised databases, it is however not necessary that editorial functions and research work are both provided by the same persons. On the contrary, a good organisation disburdens the researchers from tasks of a merely editorial character and allows them to focus on the scientific part of the preparation of the cases. In conclusion, unalex is essentially based on the joining of groups or networks of researchers for the development of the information on certain instruments of European and international uniform law; furthermore as to the form of organisation of the work, the editorial team of unalex will seek to cover those functions which are not necessarily of scientific character, allowing the teams of authors to focus on the necessary research work. If the large and complex character of the international uniform legal information system is considered, which shall be developed, it becomes clear, that several and even many individual networks of researchers are needed in order to produce the European Commentary only for the most relevant uniform law instruments. As the formation of networks of researchers and the organisation and coordination of their work is a basic principle of unalex, the questioned arises whether unalex should become the focus of a European Research Network of wider dimension and scope. That is however a question which goes beyond the reach of this essay. Civil Procedure Problems of interpretation regarding the European Regulation on Service Prof. Dr. Rainer Hausmann * I. Introduction 1. Purposes of service Service in civil proceedings is characterised by a tension between the right to administration of justice 1 on one hand and the protection of defendants on the other hand. According to national procedural rules, it is often the service of the statement of claim which leads to pendency. At the same time it serves the purpose of safeguarding procedural as well as material time limits 2 and thus safeguards the claimant s right to administration of justice. On the other hand, it is only through the service of the statement of claim that the defendant learns about the proceedings instituted against him, * 1 Rainer Hausmann, Professor at the University of Konstanz (DE). See 261, 270 ZPO (German Code of civil procedure). 2 See 262 ZPO; 204(1) no. 1-3 BGB (German civil code).

3 The European Legal Forum Issue 1/ I-9 which gives him the opportunity to defend himself against the claim. Therewith, his right to a fair hearing as well as his right to a fair trial (see Article 103 German constitution; Article 6(1) ECHR) are safeguarded. The service of judgments or titles has the same function in enforcement proceedings. For the creditor, the service is a necessary prerequisite for the access to the debtor s assets by way of enforcement 3 and gives the latter the possibility to defend himself against the imminent enforcement through legal remedies. 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. The claimant is mainly interested in a fast service of the document instituting the proceedings to the defendant domiciled abroad, in order to assure the institution of the proceedings before the domestic courts. 4 Moreover, the claimant is interested in sufficient documentation regarding the service to the foreign defendant, in order to ensure the required proof of service in case of a subsequent enforcement either domestically 5 or in the state of the defendant s domicile. 6 Not least, 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 defence before the foreign court, due service affects the beginning of the time limit given to the defendant for entering an appearance (see Article 34(2) Brussels I Regulation). Last but not least the interests of the States involved in an international service have to be considered. While for a long time the law regarding international service was characterised by the apprehension of service as a sovereign act and thus the avoidance of interventions in the sovereignty of the State addressed was a priority, 7 these interests in state sovereignty play a minor role in connection with the judicial cooperation between the Member States of the European Union (see Articles 61, 65 EC). 8 The interest of the parties to the proceedings in fast and safe information is now in the fore. At the same time, an effective cross-border service furthermore helps avoid See 750 ZPO. The former problem within the scope of Article 21 Brussels Convention of the parties rush to the courthouse which was decided by the efficiency of the postal services in the state of the defendant s domicile and which could be influenced by the parties only to a limited extent, has been significantly relaxed due to the autonomous definition of pendency within Article 30 of EC Regulation 44/2001 (Brussels I). See 182, 418 ZPO. See Articles 34(2), 45 Brussels I Regulation. See Siegrist, Hoheitsakte auf fremdem Staatsgebiet (1987); furthermore German Constitutional Court NJW 1995, 649. This concept is still at the basis of 183 para. 1 ZPO where cross-border service of a document by post is only allowed if admitted by an international convention. See Heß, Die Zustellung von Schriftstücken im europäischen Justizraum, NJW 2001, 15, 16. parallel proceedings in the States involved and thus serves the States interest in procedural economy. 2. EU Regulation No. 1348/2000 on the Service Abroad During the second half of the 20 th century cross border service of documents has been governed by the Hague Conventions on civil procedure of 1954 and on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 ( the Hague Convention ). These conventions were replaced in legal relations between the Member States of the European Union except for Denmark 9 by Council Regulation (EC) No. 1348/ ( the Regulation ) which came into force on 31 May In particular, it improves the traditional procedures of judicial assistance by providing for the discharge of requests for service directly between the competent authorities acting as transmitting agencies and receiving agencies on the basis of standard forms (Articles 2, 4 et seq. of the Regulation). 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. 11 Furthermore, the Regulation is more generous than the Hague Convention, as it allows for other ways of service than by way of judicial assistance. Especially different from Article 10(a) Hague Convention direct service by mail can no longer be completely excluded by the Member States. Last but not least the Regulation renounces to the public policy proviso provided for in Article 13 of the Hague Convention in cases of service between Member States. 12 a) Scope of application According to Article 1(1) the Regulation is only applicable to civil and commercial matters. This legal term should be interpreted autonomously as in other Regulations in the field of European law of civil procedure. In this regard reference can be made to the jurisprudence of the ECJ regarding Article 1 of the Brussels Convention. 13 There doesn t seem to be a necessity for interpreting the term civil and commercial matters within Article 1 of the Regulation on Service Abroad more broadly than in other areas of European law of civil procedure. 14 For the purpose of legal certainty and legal clarity, this term should be interpreted in a consistent way in all European acts on the subject of international law of civil procedure See below sub a. 10 OJ EC 2000 No. L 160, at See below sub. III. 12 See Heß (supra note 8), NJW 2001, 15, 17 et seq. 13 See for Article 1(1) Brussels Convention, ECJ 14 October 1976 C- 29/76 Eurocontrol, [1976] ECR 1541 ; ECJ 16 December 1980 C- 814/79 Rüffer [1980] ECR 3807; ECJ 21 April 1993 C-172/91 Sonntag [1993] ECR I See Jastrow, in: Gebauer/Wiedmann, Zivilrecht unter europäischem Einfluss (2005), Chapter 28, Regulation on Service para See also Rauscher/Heiderhoff, Europäisches Zivilprozessrecht, volume II, (2. ed. 2006), note before Article 1 Regulation on Service para. 31.

4 I-10 Issue 1/ The European Legal Forum According to its Article 1(1), from a territorial point of view, the Regulation on Service Abroad is applicable in cases where a judicial or extrajudicial document has to be transmitted from one Member State to an other for the purpose of being served there. An exception is only made for Denmark, which does not participate in legal acts on the basis of Articles 61 and 65 EC-Treaty in the field of judicial cooperation due to the reservation it declared regarding the 1997 treaty of Amsterdam. As the lack of participation of Denmark in the Regulation has led to significant problems regarding the service of titles from Denmark in other Member States, 16 the Kingdom of Denmark has concluded on 19 October 2005 a bilateral convention with the EU on the basis of the Regulation on Service Abroad. 17 This convention will enter into force on 1. July 2007 as will the parallel Convention implementing the Brussels I Regulation Therewith, the international law relating to service in relation to Denmark has been substantially adjusted to the provisions within the Regulation on Service Abroad which are applicable between the other Member States. Due to its legal character as Regulation, the EC Regulation on Service Abroad is directly applicable in the Member States of the EU since its entry into force on 31. May 2001 and it supersedes rules of national law in the field of international service. 20 Furthermore, according to Article 20(1), the Regulation also takes precedence over all multi- and bilateral Conventions which have been concluded on the subject of international law on service. This priority is especially effective vis a vis the provisions of the 1965 Hague Convention. However, according to Article 20(2) of the Regulation, the latter does not impede the Member States from upholding existing bilateral conventions which have been entered into in order to further simplify and speed up the transmission and service, even under the application of the Regulation, provided that they are consistent with the Regulation. So far, the Member States have only availed this possibility sporadically. 21 b) Significant innovations The Regulation on Service Abroad is oriented in its concept by the Hague Convention. Thus, the service of judicial documents is explicitly determined in chapter II (Articles 4-15). Chapter III then globally refers to these provisions regarding the service of extrajudicial documents (Article 16). More clear than the Hague Convention, the Regulation distinguishes between the transmission and service by way of judicial assistance on one hand (Section 1, Articles 4-11) and other ways of transmission and service on the other hand (Section 2, Arti cf. Regarding the refusal of acceptance of the service of default judgments from Denmark in Germany OLG Hamm IPRax 2005, 146 = FamRZ 2004, 1593; OLG Düsseldorf IPRax 2005, 148 = RIW 2004, 389; criticism by Fogt/Schack, Keine Urteilszustellung im deutschdänischen Rechtsverkehr?, IPRax 2005, 118 et seq. OJ EC 2005 No. L 300, at 55. OJ EC 2005 No. L 299, at 62. OJ EC 2007 No. L 94, at 70. In German law 183(3) ZPO expressly clarifies this point. cf. in this regard Rauscher/Heiderhoff (supra note 15), Article 20 EuZVO para. 1 et seq. cles of the Regulation). aa) Service by way of judicial assistance Especially the implementation of direct transmission between transmitting and receiving agencies serves the improvement and speeding up of international service between Member States 22 sought by the Regulation (Article 4 (1)). Therewith, the inconvenient path through central government bodies, provided for in Article 2 of the Hague Convention, is waived. Now, the German court which according to 1069 (1) of the German Civil procedure code is competent for the service to a foreign country, may directly call on the foreign receiving agency. 23 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. Especially 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. 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. Lastly, Article 4(4) of the Regulation waives the necessity of any legalisation or other formalities and hence opens the possibility of service by way of an electronic document ( ) or by fax. 24 bb) Other ways of transmission Besides service by way of judicial assistance, the second section of the Regulation provides for four further possibilities for the transmission and service of documents, namely: - transmission to agencies of another Member State as designated pursuant to Article 2 or 3 for the purpose of service by way of consular or diplomatic channels (Article 12). - direct service by diplomatic or consular agents of the transmitting State without application of any compulsion (Article 13). - direct service by post (Article 14). - direct service through the judicial officers, officials or other competent persons of the Member State addressed at the instance of one of the participants in proceedings in the transmitting State. 22 cf. recitals 2 and 6 re. Regulation on Service. 23 cf. thereto Lindacher, Europäisches Zustellungsrecht, ZZP 114 (2001) 179, 183 et seq., Heß, Neues deutsches und europäisches Zustellungsrecht, NJW 2002, 2417, 2422; Stadler, Die Reform des deutschen Zustellungsrechts und ihre Auswirkungen auf die internationale Zustellung, IPRax 2002, 471, 473; Jastrow (supra note 14), chapter 28 para. 44 et seq. 24 cf. Stadler, Neues europäisches Zustellungsrecht, IPRax 2001, 514, 517; Schlosser EU-Zivilprozessrecht (2nd ed. 2003), Article 4 EuZVO para. 1; Jastrow (supra note 14), chapter 28 para. 86.

5 The European Legal Forum Issue 1/ I-11 Of the four mentioned ways of transmission, especially direct service by post according to Article 14 of the Regulation has significant practical importance; it will be referred to the problems involved with it at a alter point. 25 In contrast, the service by consular or diplomatic way or by diplomatic/consular agencies of the transmitting State according to Articles 12, 13 of the Regulation are relicts from the 1954 Hague Convention on civil procedure, which have no reason to exist in a unified European judicial territory. Thus, in the course of a reformation of the Regulation, they could easily be striken out; 26 furthermore, the Federal Republic of Germany only allows service according to Article 13 of the Regulation in its sovereign territory towards nationals of the transmitting State. 27 Moreover, the direct service at the instance of the parties or other persons interested according to Article 15 of the Regulation to persons residing in another Member State cannot be used in the context of proceedings which are pending before a German court, as German law, even after the reformation of the law on service in 2001, continues to adhere to the principle of service ex officio at the instance of the court ( 166(2) of the German civil procedure code). Last but not least, so far, service at the instance of the parties of proceedings pending in another Member State on German sovereign territory is precluded to a large extent, 28 as the Federal Republic of Germany has used the reservation provided for in Article 15(2) of the Regulation Criticisms Despite of undisputable improvements vis-à-vis the provisions of the Hague Convention, literature mostly appraises the Regulation on Service in a negative way. 30 Apart from a variety which is unusual for an EC Regulation as far as the options of the Member States to deviate from single Articles of the Regulation (e.g. Article 2(3), 9(3), 13(2), 15(2), 19(2)) are concerned, the criticism is mainly fused by three problems, which have not been solved in a satisfactory way in the Regulation and continue impeding cross border service between Member States. The first problem regards the question of distinction between effective service abroad and fictious inland service which has been disregarded in the Regulation as well as in the Hague Convention (see II.). A second problem regards the unsuccessful regulation of language difficulties in Article 8 of the Regulation as well as the closely related question, whether and how infringements 25 cf. under IV. 26 Likewise Heß (supra note 8), NJW 2001, 15, 19; Stadler (supra note 24), IPRax 2001, 514, cf ZPO. 28 An exception is made in relation to the UK as well as to the other Member States of the convention between Germany and Great Britain on mutual legal assistance from (see Jayme/Hausmann, Internationales Privat- und Verfahrensrecht (13th ed. 2006), no. 228 note 2). 29 cf ZPO. 30 cf. Lindacher (supra note 23), ZZP 114 (2001) 179, 185, 193; Gottwald, Sicherheit vor Effizienz? Auslandszustellung in der Europäischen Union in Zivil- und Handelssachen, in: FS Schütze (1999) S. 225 et seq., Stadler (supra note 24), IPRax 2001, 514, 521; Heß (supra note 8), NJW 2001, 15, 19 et seq. can be subsequently remedied (see III.). The third problem regards direct service by post which has been provided for in Article 14 of the Regulation in a very elementary way; the scarce wording of Article 14(1) of the Regulation noticeably contradicts the practical importance of this particular way of service (see IV.). Meanwhile, the Commission has reacted to the persisting problems of cross border service and on , it presented a recommendation for a Regulation for the amendment of the Regulation on Service. 31 Subsequently, reference will be made to this recommendation whenever factually coherent. II. Boundaries of fictitious domestic service within the scope of the Regulation on Service 1. Fictitious domestic service and the Hague Convention on Service a) Initial Situation Since, according to its Article 1, the 1965 Hague Convention on Service is only applicable where a document has to be transmitted abroad for the purpose of service, an application in cases of fictitious domestic service, as e.g. the remise au parquet in French law, is out of question. In such cases, the transmission of the document to the defendant domiciled abroad has only the purpose of informing the defendant about the domestic service which has already been accomplished. The question, at what point in time a document can be considered as transmitted for the purpose of service abroad has to be determined solely according to the provisions of the lex fori. 32 However, with reference to the broader French wording of Article 1(1) of the Hague Convention 33, the rules of the convention are extended to the transmission of mere notifications. 34 Accordingly, in previous practice after an accomplished filing of the document with the French public prosecutor s office, the addressee was regularly notified by post (Article 686 n.c.p.c.) as well as by way of judicial assistance according to the Hague Convention (Article 685(2) n.c.p.c.). 35 The service by post of the notification required by French law failed under the Hague Convention in legal relations between France and Germany due to Germany s objection to Article 10(a) of the Hague Convention. However, since according to French law, the effectiveness of service only depended on the filing of the document with the public prosecutor s office and of the notification of the addressee by post, infringements of 31 COM (2005) 315 final/2. 32 BGH RIW 1999, 456; OLG Köln RIW 1989, 815; OLG Oldenburg IPRax 1992, 169; Schlosser (supra note 24), Article 1 of the Hague Convention para. 5 and further chapter. 33 ( ) droit être transmit a l étranger pour y être signifié ou notifié. 34 OLG Düsseldorf IPRax 1985, 289 with annotation by Schuhmacher 265; Rauscher, Strikter Beklagtenschutz durch Art. 27 Nr.2 EuGVÜ, IPRax 1991, 155; Schack, Internationales Zivilverfahrensrecht (4. ed. 2006), para. 610 ff.; Schlosser (supra note 24), Article 1 of the Hague Convention para. 8; contrary OLG Koblenz, IPRax 1988, 97, 98 with annotation by Dubois 85; OLG Oldenburg IPRax 1992, 169 with annotation by Nagel Schlosser (supra note 24), Article 1 of the Hague Convention para. 6; Kondring, Die Heilung von Zustellungsfehlern im internationalen Zivilrechtsverkehr (Diss. Münster 1995) at 144 et seq.

6 I-12 Issue 1/ The European Legal Forum the requirement of a translation only provided for in case of service by way of judicial assistance in Article 5(1) of the Hague Convention did not lead to the defectiveness of service. 36 As a consequence, for the purpose of the 1968 Brussels Convention, regarding the recognition and enforcement of French (default) judgments in another Member State, duly service within the meaning of Article 27(2) of the Brussels Convention had to be determined solely on the basis of the provisions regarding the remise au parquet. The additional notification by way of judicial assistance and the abidance to protective provisions in favour of the defendant in default according to Article 15 of the Hague Convention only were relevant under the aspect of timely service within the meaning of Article 27(2) of the Brussels Convention. 37 b) The ECJ s Scania Judgment from In its judgment re: Scania from , the ECJ has clarified to a certain point the problem of (fictitious) domestic service within the system of European law of civil procedure. 38 The case involved the enforcement of a default judgment by the Cour d appel d Amiens, against the German defendant. The service of the document instituting the proceedings was effected by lodging it with the public prosecutor s office in Amiens on the basis of a remise au parquet. As the German defendant refused to accept the statement of claim due to the lack of a translation into German, the statement of claim had been transmitted anew to the defendant by way of post again, without a translation. The OLG Munich, which had been seised for the enforcement of the French default judgment had referred the question to the ECJ for a preliminary ruling, whether duly service according to Article 27(2) of the Brussels Convention required that in matters relating to service to a defendant domiciled in another Contracting State to the Brussels Convention, the conventions which were effective between the Contracting States were abided to. Alternatively, the OLG Munich had sought a statement of the ECJ regarding the compliance of service by remise au parquet with Article 12 EC. 39 With reference to its former jurisprudence regarding the interpretation of Article 27(2) of the Brussels Convention, the ECJ justly emphasizes that the intended simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals cannot be attained by undermining in any way the right of the defendant to a fair hearing. Article 27(2) of the Brussels Convention serves this aim, as it excludes the recognition and enforcement of a judgment where the defendant has not been given the opportunity to defend himself in the State of the court of the original pro Kondring (supra note 35), at 151. Schlosser (supra note 24), Article 15 of the Hague Convention para. 2; Schack (supra note 34), para. 610; Geimer, Europäisches Zivilprozessrecht (1. ed. 1997), Article 27 Brussels Convention paras 114 and 118. ECJ 13 October 2005 C-522/03 Scania Finance France S.A. v Rockinger GmbH & Co., [2005] ECR I = [2005] EuLF I-217; IPRax 2006, 157 with annotation by Stadler 116. OLG Munich IPRspr no ceedings. The Brussels Convention does not itself harmonise the diverse systems of the Member States regarding the service of judicial documents abroad. However, Article IV(1) of the Protocol to the Brussels Convention refers to the conventions which are effective between the Contracting States. The ECJ makes the conclusion, that in cases where there is a convention regarding the service of judicial documents between the State of the original proceedings and the State in which enforcement is sought, the service of documents which institute the proceedings is only considered as duly according to Article 27(2) of the Brussels Convention, if the provisions of the convention have been abided to. Regarding service proceedings, Article IV of the Protocol to the Brussels Convention contains a final regulation. Hence the ways of service provided for by the national law of the State of the original proceedings can only be considered where neither service according to paragraph 1 nor paragraph 2 40 of Article IV of the Protocol to the Brussels Convention is possible. 41 As an argument, the ECJ accurately refers to the fact that duly service according to the Brussels Convention has to be determined by the courts of the State of the original proceedings (Article 20(2)) as well as by the courts of the State in which recognition is sought (Article 27(2)); for the efficiency of this double control it is indispensable that both courts preferably took the same service provisions as a basis for their decision. 42 Since Germany as well as France are Contracting States to the Hague Convention, service would thus have to be effected according to the provisions of this convention in order to be considered duly service within the meaning of Article 27(2) of the Brussels Convention. 43 This apodictic approach by the ECJ could indicate that the ECJ has declared the remise au parquet in relations between the Contracting States to the Hague Convention categorically inadmissible. Therewith the ECJ would exceed its jurisdiction to interpret, which only relates to Article IV of the Protocol to the Brussels Convention, and not however to the conventions regarding law of service between Contracting States referred to in Article IV. The ECJ is disallowed to interpret Article 1 of the Hague Convention in a restrictive way as meaning that (fictitious) domestic service according to the system of remise au parquet in relations between Contracting States is inadmissible. 44 The ECJ s judgment must rather be interpreted as meaning that already duly service (not just timeliness ) depends on the compliance of the notification of the defendant domiciled in another Contracting State to the Brussels Convention with the requirements of the Hague Convention. Thus, the German exequatur judge can already deny duly service according to Article 27(2) of the Brussels Con- 40 Service according to Article IV(2) of the Protocol to the Brussels Convention is out of question in cases of service to parties domiciled in Germany due to the Federal Republic of Germany s objection, cf. BGBl. 1972, II, ECJ (supra note 38), paras ECJ (supra note 38), para ECJ (supra note 38), para. 27 et seq. 44 Accurately: Stadler, Ordnungsgemäße Zustellung im Wege der remise au parquet und Heilung von Zustellungsfehlern nach der EuZVO, IPRax 2006, 116, 118 et seq. reference to the Advocate General s opinion from 17 March 2005, n. 32.

7 The European Legal Forum Issue 1/ I-13 vention where the notification, which is necessary pursuant to French law, has not been transmitted to the German defendant pursuant to the provisions in Article 5 of the Hague Convention; insofar, as mentioned above, the mere transmission by post does not suffice with regard to Germany s objection to Article 10(a) of the Hague Convention The significance of the judgment in Scania after the entry into force of the Regulation on Service and of the Brussels I Regulation Following the amendments of the relevant European legal bases regarding law on service as well as enforcement law, the dispute regarding the interpretation of the ECJ s judgment in Scania outlined above has become practically irrelevant. EC Regulation no. 44/2001 (Brussels I) which superseded the Brussels Convention on does no longer contain a rule which corresponds to Article IV of the Protocol to the Brussels Convention, as since , in the field of law on service between Member Sates the Regulation on Service has become directly applicable law which prevails over conventions concluded between the Member States (Article 20 Regulation on Service). The Regulation on Service does not solve the problem of the admissibility of domestic service to addressees domiciled in another Member State. 46 Due to the service by post, which has now been declared categorically admissible in Article 14 of the Regulation on Service, the notification of the defendant domiciled in another Member State required by French law on service, can now be effected by way of post according to the Regulation on Service; therewith, the transmission by way of judicial assistance according to Article 5 of the Hague Convention, which was required additionally in relations between France and Germany due to Germany s objection to Article 10(a) of the Hague Convention, has become unnecessary. As, according to the accurate approach, the mere notification falls within the scope of Article 1 of the Regulation, 47 the requirements for a translation specified according to Article 14(2) of the Regulation by each State addressed must already be considered at the time of transmission by post, Article 686 n.c.p.c.. Where this rule is infringed, the service already has to be considered invalid by the French court; in that case, the latter has to stay the proceedings according to Article 19(1) of the Regulation. Furthermore, an important amendment has been made in European law regarding the recognition of judgments, as Article 34(2) of the Brussels I Regulation unlike the anteceding provision of Article 27(2) of the Brussels Convention no longer prescribes a review of duly service of default judgments. For the purpose of safeguarding the defendant s right to be heard, the exequatur judge only has to determine according to Article 34(2) of the Brussels I Regulation, whether the document instituting the proceedings has been served in sufficient time and in such a way as to enable the defendant to Stadler (supra note 44), IPRax 2006, 116, 118. Geimer, Internationales Zivilprozessrecht (5. Aufl. 2005) para a; Heß (supra note 8), NJW 2001, 15, 19; Stadler (supra note 24), IPRax 2001, 514, 516 et seq. Stadler (supra note 44), IPRax 2006, 116, 120. arrange for his defence. Even though in cases of the recognition of a judgment it no longer depends on whether the service procedure has in all respects complied with the Regulation on Service, as Article 34(2) of the Brussels I Regulation requires an autonomous minimum standard isolated from the law on service, 48 it does not follow that duly service no longer has any significance. On the contrary, duly service indicates that the defendant was given enough opportunity to defend himself. 49 On the other hand, an infringement of the provisions of the Regulation on Service causes enough grounds for the pursuit of the question whether the defendant had an adequate possibility to defend himself. Where as in the Scania case the provisions of the State addressed regarding the requirement of a translation for direct service by post according to Article 14(2), 23(1) of the Regulation on Service have not been followed, it is seriously questionable whether the defendant, who has to take care of the translation himself within the time period for the preparation of his defense, can still react timely to the action. The disregard of the requirement of a translation can thus very well pose an obstacle to the enforcement of a foreign default judgment according to Article 34(2) of the Brussels I Regulation. 50 III. Language problems and the infringement of the requirement of translation according to the Regulation on Service The question 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. 1. Interpretation of Article 8(1) of the Regulation on Service According to Article 8(1) of the Regulation on Service, the addressee may refuse to accept a document to be served if it is in a language other than the official language of the Member State addressed (lit. a), 51 or other than a language of the Member State of transmission which the addressee understands (lit. b). The receiving agency shall inform the addressee about his right to refuse acceptance. It follows that a translation of the document to be served into the language of the Member State addressed is not required in every case in order to achieve due service. In fact, in cases where the addressee demonstrably understands the lan Rauscher/Heiderhoff (supra note 15), Introduction to the Regulation on Service para. 14; Roth, IPRax 2005, 438, 439 contrary OLG Celle IPRax 2005, 450, 451. Rauscher/Leible, Europäisches Zivilprozessrecht, vol. I (2. ed. 2006), Article 34 Brussels I Regulation para. 31; Stadler (supra note 44), IPRax 2006, 116, 120. Accuratley: Stadler (supra note 44), IPRax 2006, 116, 120; Roth, IPRax 2005, 438, 439; Kropholler, Europäisches Zivilprozessrecht (8. ed. 2005) Article 34 Brussels I Regulation para. 40; Thomas/Putzo/Hüßtege, ZPO (28. ed. 2007), Article 23 Brussels II Regulation para. 2. Where the State addressed has several official languages, the official language of the place where service shall be effected is relevant. cf. thereto LG Berlin (case number 15 O 562/01): The service of an interim injunction in German language on a merchant seated in the German language area of Belgium is considered due service.

8 I-14 Issue 1/ The European Legal Forum guage of the transmitting Member State, Article 8(1) of the Regulation on Service allows for a faster service, as in that case a translation of the document which often tends to be time consuming and costly - can be waived. The acceleration of service intended by this rule however is achieved by running a significant risk of judicial insecurity. Article 8(1) of the Regulation does not contain sufficient criteria in order to determine the question when the applicant may rely on a sufficient linguistic knowledge of the addressee. 52 Due to this insecurity, it is partly recommended to attach a translation into the official language of the State addressed in case of a doubt. 53 In part, in order to determine sufficient linguistic knowledge reference is made to the individual linguistic knowledge of the addressee. Where the latter denies having the linguistic knowledge alleged by the applicant, he has the burden of proof regarding his linguistic knowledge, as Article 8(1) of the Regulation on Service only grants him a right to refuse acceptance. 54 The significant problems in determining the individual linguistic knowledge of the addressee service speak against such an interpretation. If evidence regarding the linguistic knowledge of the defendant domiciled abroad already had to be gathered already in this phase of the proceedings, the acceleration of service aimed at by Article 8(1) of the Regulation would be twisted around. Furthermore, the court in the original State handling service may not make a definitively binding determination of the addressee s linguistic knowledge. However, where the court seised for the enforcement of the judgment in another State unlike the court of the original proceedings would find that the defendant s linguistic knowledge is insufficient, the claimant would be placed at a disadvantage. Due to the infringement of the defendant s right to be heard according to Article 34(2) of the Brussels I Regulation, he could be barred from enforcing the judgment in another State and from bringing new proceedings in the State of the original proceedings due to res judicata. 55 Thus, a determination of the addressee s linguistic knowledge on the basis of general and objective criteria is preferable. Accordingly, in the case of service to a natural person sufficient linguistic knowledge can be assumed, where the addressee is a citizen of the transmitting State or another State which has the same official language. 56 However, where service is effected to a citizen of the State addressed who is domiciled For criticism see Bajons, Internationale Zustellung und Recht auf Verteidigung, in: FS Schütze (1999) S. 49, 71; Lindacher (supra note 23), ZZP 114, 179, 187; Stadler (supra note 24), IPRax 2001, 514, 517. See Sharma, Zustellungen im Europäischen Binnenmarkt (2003) S. 100; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 3; likewise Stadler (supra note 24), IPRax 2001, 514, 515 (Waiver of translation only in cases where refusal of acceptance would constitute abuse of law); contrary Jastrow (supra note 14), Chapter. 28 para See Schlosser (supra note 24), Article 8 Regulation on Service para. 1; contrary Lindacher (supra note 23), ZZP 114, 179, 187; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 11. cf. hereto Bajons (supra note 52), in: FS Schütze (1999) 49, 54; G. Geimer, Neuordnung des internationalen Zustellungsrechts, p. 93 et seq.; Rauscher/Heiderhoff (supra note 15), Article 8 of the Regulation on Service para. 6. See Bajons (supra note 52), in: FS Schütze (1999) S. 49, 73; Lindacher (supra note 23), ZZP 114, 179, 187. cf. for same approach 1068 (2) p. 2 no. 2 ZPO. there, it can be assumed that he has no knowledge of the language of the transmitting State, unless he has spent a significant period of time in that State. 57 Correspondingly, 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; 58 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 registered office is situated. 59 Moreover, the requirements are met where the document is composed in the language in which the contract was negotiated and concluded. 60 Building on such general criteria is also advantageous where the addressee of the service could not be met in person. If the individual linguistic knowledge of the addressee was relevant, in cases where the document is not conceived in the language of the State addressed, only the addressee could personally decide whether he was willing to accept the document. The risk of not meeting the addressee in person would be borne by the party applying for service; even where the latter waived a translation only on the basis of the addressee s linguistic knowledge that he is aware of. Certainly, the building on the aforementioned general criteria can only establish an assumption of sufficient linguistic knowledge of the addressee, which can be refuted in individual cases. On the other hand, due to the right to be heard, the addressee has to be granted the possibility to call evidence in rebuttal of such an assumption and to prove that he does not know the language of the transmitting State. He can only do so by refusing acceptance in the original proceedings, not however in enforcement proceedings in another State. 2. Scope of the requirement of translation according to Article 8(1) of the Regulation on Service a) Previous practice Regarding the quality requirements for the translation of the document instituting the proceeding, previous German practice was very generous. Concerning the summons to a hearing, in order to recognise a judgment according to Article 27(2) of the Brussels Convention the BGH considered it sufficient that the addressee was able to extrapolate the signification of the summons as well as the time and date of the hearing from the context. 61 This is acceptable in cases of formal documents as a OLG Düsseldorf FamRZ 2006, 130 = IPRax 2006, 270 with annotation by Rösler 236. See Jastrow (supra note 14), chapter 28 para See Lindacher (supra note 23), ZZP 114, 179, 187; Stadler (supra note 24), IPRax 2001, 514, 518 in Fn. 49. According to Schlosser (supra note 24), Article 8 Regulation on service para. 2, it shall suffice that any of the chief executives masters the language. See also Stadler (supra note 24), IPRax 2001, 514, 518; Rauscher/Heiderhoff (supra note 15), Article 8 Regulation on Service para, 7. more restrictively OLG Munich IPRspr no. 185, which held that the mastering of the business language is not enough but that also knowledge of the language of the proceedings is necessary, cf. see also below at 2b. BGH IPRax 2002, 395 with annotation Geimer 378; likewise OLG Nürnberg IPRax 2006, 38.

9 The European Legal Forum Issue 1/ I-15 summons to a hearing since Article 34(2) of the Brussels I Regulation states even less prerequisites for due service than Article 27(2) of the Brussels Convention. In contrast, significantly higher demands are made on translations of statements of claim or judgments within the scope of the Brussels I Regulation. Insofar, the mere abstract of the important contents of the document in a language which the addressee understands is by far not enough. 62 b) The BGH s reference to the ECJ for a preliminary ruling from The ECJ s answer to the questions regarding the interpretation of Article 8(1) of the Regulation referred to it by the BGH for a preliminary ruling by an order from , is expected to clarify the requirements for the translation of documents instituting the proceedings. In this case, the German claimant commenced proceedings against the defendant, an English company having its seat in London (UK) seeking damages due to deficient planning on the basis of an architects contract. The defendant had committed itself in the contract to perform planning services regarding a building project in Berlin (DE). The architects contract provided inter alia: the services have to be performed in German language. The correspondence between the parties, agencies and public institutions shall be written in German. In order to effect service to the defendant, the claimant had lodged copies of the statement of claim as well as of all attachments to which reference was made in the statement of claim, with the LG Berlin. By way of judicial assistance, the latter had requested service in London of the statement of claim and of the attachments. After the defendant had refused acceptance of the claim due to the lack of an English translation, it was served in London with the English translation of the statement of claim as well as with the annexes which were not translated. The defendant refused the acceptance of the claim anew making reference to Article 8(1) of the Regulation on service, since the annexes had not been translated into English. On appeal, the court held that service of the claim had been duly effected. The BGH is inclined to agree with that legal point of view. However, as it still had doubts about the interpretation of Article 8(1) of the Regulation, it referred three questions to the ECJ for a preliminary ruling. Firstly, the BGH underlines that the possibility to refuse acceptance of a document which lacks translation also serves the protection of the addressee against procedural disadvantages, which the latter could suffer because he cannot understand the information served on him as it is written in a language that the addressee does not know. Accordingly, from the point of view of the BGH, service is generally invalid where the defendant rightly refused acceptance of the document to be served according to Article 8(1) of the Regulation due to insufficient linguistic knowledge and where the claimant as in this case refuses to produce a translation. 64 The appellate court had not deemed a translation of the attachments to the statement of claim necessary, as they only contained a clarification of the implementations in the statement of claim regarding the deficiency of the architect services rendered by the defendant. Quite rightly, the BGH does not share this opinion. The BGH holds that even the withholding of details in the attachments can lead to a lasting negative impact on the defendant s information interest, as the defendant s decision on its defence strategy can also depend on the additional information contained in the attachments. The latter had the purpose of making the deficiencies of the construction plan and the costs which the claimant incurred for the correction of the defects more understandable. Accordingly, the defendant would generally already have a right to refuse acceptance according to Article 8(1) of the Regulation where only the attachments are not in the official language of the Member State addressed or a language of the Member State of transmission which the addressee understands. Alternatively, the appellate court had found due service on the ground that the parties had expressly agreed in the contract that correspondence should be maintained in German and that the attachments contained correspondence in terms of this agreement. Even in this point, the BGH did not follow the appellate court s point of view. It held that the contractual agreement regarding the parties obligation to maintain correspondence in German does not indicate that the defendant understands the language fort he purpose of the Regulation. The right to refuse acceptance according to Article 8(1)(b) of the Regulation on Service cannot be denied with reference to a mere assumption regarding the linguistic knowledge of the defendant. In fact, it is only crucial whether the addressee of the document truly understands the language. It seems that with this determination the BGh wanted to establish an individual point of view regarding linguistic knowledge according to Article 8(1)(b) of the Regulation on Service. The mere circumstance that the addressee agreed in the exercise of his business activity in a contract with the applicant that correspondence was to be conducted in the language of the Member State of transmission should not concede the right to the claimant to plead sufficient linguistic knowledge within the meaning of Article 8(1)(b) of the Regulation. Instead, it depends on the individual linguistic knowledge of the persons authorised to represent the defendant company. Therewith however the requirements regarding the addressee s right to be heard are exceeded. Rather, the parties to an international agreement should also be granted the right to determine the relevant language for services according to Article 8(1)(b) of the Regulation in an autonomous way. Ultimately, the BGH comes to the same conclusion by denying the English defendant a need for protection under the particular circumstances. Even according to Article 8(1) of the Regulation the addressee does not have a right to refuse acceptance where his need for information can be satisfied in another way than by service of a translation. This rule should Accurately: Rauscher/Heiderhoff (supra note 15), Article 8 para. 2. In this issue at 22, and in Section II at Regarding the possiblity of rectification by the claimant s posterior presentation of the translation, see below at 3.