The European Court of Justice (ECJ) issued a decision regarding the service of judicial documents based on Regulation No 1393/2007, after a request for a preliminary ruling from the Supreme Court of Cyprus. The question that the ECJ was called to answer was whether Article 8 of the Regulation No 1393 must be interpreted as meaning that the addressee of the document to be served must in all circumstances be informed, using the standard form set out in Annex II to that regulation, of his right to refuse to accept that document and, where appropriate, of the legal consequences of a failure to provide information using that form.
The binding nature of the standard form set out in Annex II to Regulation No 1393/2007
In its judgment the ECJ noted that that regulation seeks to establish a system for intra-Community service of judicial and extrajudicial documents. In doing so the regulation establishes the principle of direct transmission of judicial and extrajudicial documents between the Member States, which has the effect of simplifying and accelerating the procedures.
Moreover, the ECJ continued saying that it is important not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able effectively to assert his rights in the Member State of transmission
As far as concerns the system established by Regulation No 1393/2007 in order to attain those objectives, the ECJ noted that, the service of documents is, in principle, to be effected between the ‘transmitting agencies’ and the ‘receiving agencies’ designated by the Member States. The transmitting agency must inform the applicant that the addressee may refuse to accept service of documents that are not translated in one of the languages provided for in Article 8 of that regulation. As regards the receiving agency, it is required to effectively serve the document on the addressee, as provided for by Article 7 of Regulation No 1393/2007. In that context, it must, first, keep the transmitting agency informed of all the relevant aspects of that operation by returning the standard form set out in Annex I to that regulation and, secondly, in accordance with Article 8(1) thereof, inform the addressee that he may refuse to accept the document if it is not translated into one of the languages referred to in that provision, namely either a language which the interested party understands, or the official language of the receiving Member State or, where appropriate, one of the official languages of the place where that document must be served, languages which the addressee is expected to understand.
Where the addressee refuses to accept the document due to not being translated into a language that he understands or he is expected to understand, and there is dispute regarding the languages that the addressee understands or whether the document should be accompanied by a translation in one of the languages provided for in Article 8, paragraph 1 of the Regulation No 1393/2007, it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature.
Furthermore, concerning the system established by Regulation No 1393/2007, the ECJ stated that the latter provides also for the use of two standard forms which are set out in Annexes I and II to that regulation, and pointed out that Regulation No 1393/2007 does not contain any exceptions to the use of those forms. On the contrary, the standard forms provided for therein should be used since, while respecting the perspective rights of the parties concerned, they contribute to simplifying and making more transparent the transmission of documents, thereby guaranteeing both the legibility thereof and the security of their transmission. Also, those forms constitute instruments by means of which addressees are informed of their ability to refuse to accept the document to be served.
As is apparent from the wording itself of the title and contents of the form set out in Annex II of Regulation No 1393/2007, the ability to refuse to accept the document to be served is defined as a ‘right’ of the addressee of that document. According to the ECJ, the addressee of the document must be informed of his right in writing. Therefore, the receiving agency, where it serves or has served a document on the addressee, is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document if it is not translated or accompanied by a translation in a language that he is expected to understand or the official language of the receiving Member State.
The consequences of a failure to provide information using the standard form set out in Annex II to Regulation No 1393/2007
The ECJ noted in its judgment that Article 8 of Regulation No 1393/2007 does not contain provisions relating to the legal consequences of a failure to provide the addressee of a document with information, using the standard form set out in Annex II to Regulation No 1393/2007, concerning his right to refuse to accept that document. It is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.
Moreover, the ECJ stated that the lack of that standard form and the refusal to accept a document in the absence of an appropriate translation are closely linked. In both situations the exercise by the addressee of his right to refuse to accept the document at issue could be impeded. Therefore, the remedy in both situations must be similar.
Concerning the consequences of the refusal by the addressee to accept the document on the ground that that document was not accompanied by a translation in a language which he understands or in the official language of the receiving Member State, does not necessarily render the procedure invalid. On the contrary, the sender may remedy the lack of the required document by sending the requested translation. Similarly, the failure of the receiving agency to provide information using the standard form set out in Annex II of Regulation No 1393/2007, can be remedied by sending the form at a later stage.
The ECJ stated that to declare either the document to be served or the procedure for service invalid would be incompatible with the objective pursued by Regulation No 1393/2007, which consists in providing a means of direct, rapid and effective transmission between Member States of documents in civil and commercial matters. Therefore, it must be possible to remedy the failure to provide information using the standard form set out in Annex II to Regulation No 1393/2007.
In concluding, and according to the decision of the ECJ, the receiving agency is required in all circumstances to inform the addressee of a document of his right to refuse to accept that document, by using systematically for that purpose the standard form set out in Annex II to that regulation. Also, it should be accepted that the fact that that agency, when serving a document on its addressee, fails to enclose the standard form set out in Annex II to Regulation No 1393/2007, does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation.
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