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What if the defendant is in a different member state?

  • United Kingdom
  • Litigation and dispute management

11-01-2018

A recurrent issue that we face in litigation, especially when the parties are multinational companies that provide their services in more than one European Union State, is the need to notify and transfer judicial documents between the Courts of two different Member States.

These procedural aspects are regulated in Regulation 1393/2007 November 13, 2007 on the service of judicial and extrajudicial documents in civil or commercial matters. The drafting of this Regulation was included within the necessary measures taken by the European Union for the proper functioning of the internal market and the establishment of an area of freedom, security and justice.

In this context, the entry into force of this Regulation meant the streamlining of judicial procedures in civil and commercial matters through an expeditious and efficient document transfer procedure. Said procedure entails a direct communication between bodies designated by the Member States instead of the usual procedure of transmission of notifications between Central Authorities.

The transmission of judicial documents pursuant to articles 4 and following of the Regulation is characterized mainly by the following aspects:

  • The documents are transmitted or received directly between the authorities, public officers or persons designated by each Member State ("transmitting agencies" or "receiving agencies"). Each State may designate a transmitting agency and a receiving agency or a single agency for both functions.

Likewise, each State must designate a central entity responsible for providing information to the transmitting agencies, find solutions to problems that may arise in the transmission of documents and, exceptionally, demand a notification or transfer at the request of a transmitting agency.

In Spain´s case, the central body is the General Subdirectorate for International Legal Cooperation of the Ministry of Justice and the transmitting and receiving agencies are the different courts and tribunals that make up the Spanish judicial map.

  • The transmission of documents can be affected by any suitable 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.

In Spain, the usual method of transmitting documents is by certified mail with acknowledgment of receipt. The use of emails or similar means for notification is not frequent.

The document to be transmitted shall be accompanied by a request drawn up using the standard form set out in Annex I of the Regulation, in the official language of the Member State addressed.

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.

In Spain, article 152 of the Civil Procedure Act expressly provides that communication acts will be carried out under the direction of the official court representative, who will be responsible for the proper organization of the service. Such acts will be executed by:

  1. The court´s officers body.
  2. The court representative of the party that requests it.

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 if it is not written in, or accompanied by a translation into, either of the following languages:

  1. a language which the addressee understands; or
  2. 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.

In this sense, it is always advisable to translate all documents into the language of the receiving State in order to avoid the recipient's refusal to receive the document, as it could significantly delay the process if the documents are returned for translation.

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.

When the formalities concerning the service of the document have been completed, a certificate of completion of those formalities shall be drawn up in the standard form set out in Annex I and addressed to the transmitting agency, together with a copy of the document served. The certificate shall be completed in the official language or one of the official languages of the Member State of origin or in another language which the Member State of origin has indicated that it can accept.

Notwithstanding the fact that the Regulation establishes other means of transmission and service of judicial documents, such as consular or diplomatic channels, this mechanism is configured as an ideal option to make a notification in a Member State with guarantees of legal security. In any case, when using these means of transmission, the regulations of the receiving Member State should always be taken into account, due to the fact that those regulations will determine its convenience.

Regarding the notification of extrajudicial documents, it is of interest to mention the judgment of the CJEU, dated November 11, 2015, (case C-223/14, Tecom Mican, SL), in which the concept of “extrajudicial document” is further developed. In particular, the concept includes not only documents issued or authenticated by a public authority or official, but also private documents whose formal transmission to its addressee, residing in another Member State, are necessary for the exercise of a right or a legal claim in civil or commercial matters.

Finally, for the purposes of the practice of notifications through the channel established in Regulation (EC) 1393/2007, it may be advisable to consult the European Portal of e-Justice, which provides information on the application of this regulation.

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