Opinion of the Advocate General — ECLI:EU:C:2007:737
Date: 2007-11-29
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the pleas of fact and law of the application, the documentary evidence being communicated separately, whereas under other legal systems, such as German law, the annexes must be produced at the same time as the application and form an integral part of it. 44 Article 8 of Regulation No 1348/2000 does not refer to annexes to a document to be served. However, the reference in paragraph 2 of that article to ‘documents of which a translation is requested’ indicates that a ‘document to be served’ may consist of a number of documents. 45 In the absence of useful guidance in the wording of Article 8 of Regulation No 1348/2000, that provision must be interpreted in the light of its objectives and its context and, more generally, the objectives and context of Regulation No 1348/2000 itself (see, to that effect, Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43). 46 As is apparent from recital 2 of the preamble, the objectives of Regulation No 1348/2000 are to improve and expedite the transmission of documents. Those objectives are reiterated in recitals 6 to 8. Recital 8 thus states that ‘[t]o secure the effectiveness of this Regulation, the possibility of refusing service of documents is confined to exceptional situations’. In addition, Article 4(1) of that regulation provides that judicial documents are to be transmitted as soon as possible. 47 However, those objectives cannot be attained by undermining in any way the rights of the defence (see, by analogy, with regard to Regulation No 44/2001, Case C-283/05 ASML [2006] ECR I‑12041, paragraph 24). Those rights, which derive from the right to a fair hearing guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), constitute a fundamental right forming part of the general principles of law whose observance the Court ensures (see, inter alia, ASML, paragraph 26). 48 Every effort must therefore be made to reconcile the objectives of effectiveness and speed in the transmission of procedural documents, which are necessary for the sound administration of justice, with that of the protection of the rights of the defence, in particular in interpreting Article 8 of the Regulation No 1348/2000 and, specifically, the term ‘document to be served’, where that is a document instituting proceedings, in order to be able to determine whether such a document must include annexes consisting of documentary evidence. 49 It is clear that the term ‘document instituting the proceedings’ in the context of Article 8(1) of Regulation No 1348/2000 cannot be interpreted in the light of the objectives of that regulation alone for the purpose of determining whether such a document can or must include annexes. Nor do those objectives make it possible to establish whether the translation of a document instituting the proceedings is a vital component of the defendant’s rights of defence, which might clarify the scope of the translation obligation referred to in Article 8 of that regulation. 50 However, the interpretation of Regulation No 1348/2000 cannot be dissociated from the context of developments in the field of judicial cooperation in civil matters, which include that regulation, in particular Regulation No 44/2001, Article 26(3) and (4) of which expressly refers to Regulation No 1348/2000. 51 Various provisions require the court, before delivering a default judgment or recognising a judicial decision, to verify whether the means by which a document instituting proceedings was served were such that the rights of the defence have been respected (see, inter alia, with regard to default judgments, Article 19(1) of Regulation No 1348/2000, Article 26(2) of Regulation No 44/2001 and the second paragraph of Article 20 of the Brussels Convention and, with regard to the recognition of judgments, Article 34(2) of Regulation No 44/2001 and Article 27(2) of the Brussels Convention). 52 Before Regulation No 1348/2000 entered into force, cross-border service between the Member States was effected in accordance with the 1965 Hague Convention, to which Article 26(4) of Regulation No 44/2001 and the third paragraph of Article 20 of the Brussels Convention refer, or bilateral agreements concluded between Member States. However, The Hague Convention and the majority of those agreements do not lay down a general obligation to translate all the documents to be served, so that the national courts have considered that the rights of the defence are adequately protected if the addressee of a document served has had sufficient time to enable him to have it translated and prepare his defence. 53 Moreover, Regulation No 1348/2000 itself does not specify whether the right to refuse a document if it has not been translated also exists in the case of service by post effected in accordance with Article 14 of that regulation. In order to interpret that provision, it is necessary to examine the Explanatory Report on the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, drawn up by an act of the Council of the European Union dated 26 May 1997 (OJ 1997 C 261, p. 1, ‘the 1997 Convention’; explanatory report, p. 26) on the basis of Article K.3 of the EU Treaty, on the text of which Regulation No 1348/2000 is based (see, to that effect, Case C‑443/03 Leffler [2005] ECR I‑9611, paragraph 47). 54 The commentary on Article 14(2) of the 1997 Convention concerning service by post states as follows: ‘This Article establishes the principle that service may be effected by post. However, Member States may, in order to provide guarantees for persons residing in their territory, specify the conditions under which service may be effected in their regard by post. Such conditions might for instance include the use of registered post or the application of the Convention’s rules on the translation of documents.’ 55 Some Member States, rightly or wrongly, have interpreted Article 14(1) of Regulation No 1348/2000 as meaning that the document is not required to be translated if it is served by post and have considered it necessary to state, as permitted by Article 14(2) of that regulation, that they do not accept service of judicial documents if they are not translated (see, in that regard, the Information communicated by Member States under Article 23 of Regulation No 1348/2000 (OJ 2001 C 151, p. 4) and the first update of the information communicated by Member States (OJ 2001 C 202, p. 10)). 56 It follows from the examination of the provisions of the 1965 Hague Convention, the Brussels Convention and the 1997 Convention, Regulation Nos 1348/2000 and 44/2001 and the information communicated by the Member States under Article 14(2) of Regulation No 1348/2000 that, in the areas covered by those provisions, neither the Community legislature nor the Member States consider it to be a necessary component of the exercise of the defendant’s rights of defence that the applicant provide a translation of the document instituting the proceedings, since the defendant must simply be given sufficient time to enable him to have that document translated and to prepare his defence. 57 Such a choice on the part of the Community legislature and the Member States does not undermine the protection of fundamental rights, which is guaranteed by the ECHR. In fact, Article 6(3)(a) of that convention, which provides that everyone charged with a criminal offence has the minimum right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him, is applicable only in criminal matters. There is no provision in the ECHR requiring a document instituting proceedings in civil or commercial matters to be translated. 58 Consequently, if the Community legislature chose, by Article 8 of Regulation No 1348/2000, to permit the addressee of a document to refuse it if it is not translated into an official language of the Member State addressed or a language of the Member State of transmission which he understands, that is principally to establish in a consistent manner who is responsible for the translation of such a document and liable for the cost thereof at the stage when it is served. 59 Since the examination of international and Community law concerning the scope of the principle of the protection of the rights of the defence, and in particular the need for a translation of a document instituting proceedings, has enabled the purpose of Article 8 of Regulation No 1348/2000 to be clarified, it is in the light of that purpose that it is necessary to determine what is covered by the term ‘document to be served’ within the meaning of that article where the document is a document instituting proceedings and whether such a document can or must include annexes consisting of documentary evidence. 60 Regulation No 1348/2000 must be given an autonomous interpretation so that it may be applied in a uniform manner (Leffler, paragraphs 45 and 46). The same applies to Regulation No 44/2001 and, in particular, the term ‘document instituting the proceedings’ within the meaning of Articles 26 and 34(2) of that regulation, as well as the corresponding provisions of the Brussels Convention. 61 Ruling on the interpretation of Article 27(2) of the Brussels Convention concerning recognition of judgments, the Court defined the term ‘document which instituted the proceedings or ... equivalent document’ within the meaning of that provision as meaning the document or documents which must be duly served on the defendant in due time in order to enable him to assert his rights before an enforceable judgment is given in the State of origin (see, to that effect, Case C‑474/93 Hengst Import [1995] ECR I‑2113, paragraph 19). 62 The Court thus held that in the case giving rise to the judgment in Hengst Import the document which instituted the proceedings was constituted by the combination of the order to pay (‘decreto ingiuntivo’) issued by an Italian court in accordance with Article 641 of the Italian Code of Civil Procedure and the plaintiff’s application. It is the joint service of both those documents which starts time running for the defendant to oppose the order. Moreover, the plaintiff cannot obtain an enforceable order before the expiry of that time-limit (Hengst Import, paragraph 20). 63 The Court stated that the ‘decreto ingiuntivo’ is just a form which, to be comprehensible, must be read with the application. Conversely, service of the application alone does not enable the defendant to decide whether to defend the action since, without the ‘decreto ingiuntivo’, he does not know whether the court had granted or refused the application. Moreover, the requirement for joint service of the ‘decreto ingiuntivo’ and the application was confirmed by Article 643 of the Italian Code of Civil Procedure, according to which it marked the start of the proceedings (Hengst Import, paragraph 21). 64 It is apparent from that autonomous definition of the document instituting the proceedings, as interpreted by the Court, that such a document must consist of the document or documents, where they are intrinsically linked, enabling the defendant to understand the subject‑matter and grounds of the plaintiff’s application and to be aware of the existence of legal proceedings in which he may assert his rights, either by defending a pending action or, as was the case in the matter giving rise to the judgment in Hengst Import, by challenging a judgment delivered on the basis of an ex parte application. 65 Moreover, as was pointed out at paragraph 43 above, under some national legal systems there is no requirement for the documentary evidence in a case to be annexed to what is defined as a document instituting the proceedings and they may be communicated separately. Such documents are not therefore regarded as intrinsically linked to the document instituting the proceedings, in that they are essential to enable the defendant to understand the claim brought against him and to be aware of the existence of the legal proceedings, but have a probative function which is distinct from the purpose of service itself. 66 It is appropriate to note that the conditions for recognition of judgments laid down in Regulation No 44/2001 have been relaxed by comparison with the conditions laid down in the Brussels Convention. 67 Article 34(2) of that regulation departed from the requirement in Article 27(2) of the Brussels Convention that the document instituting the proceedings be duly served, in order to place the emphasis on effective observance of the rights of the defence, which are considered to have been observed when the defendant is aware of the pending legal action and has been able to commence proceedings to challenge a judgment entered against him (see, to that effect, ASML, paragraphs 20 and 21). 68 That change in Regulation No 44/2201 by comparison with the Brussels Convention supports the interpretation of the term ‘document to be served’ – where that consists of a document instituting the proceedings – that such a document must include the essential information enabling a defendant to be aware primarily of the existence of legal proceedings but not of every item of documentary evidence which makes it possible to prove the various facts and points of law on which the application is based. 69 It follows from the above considerations that the term ‘document to be served’ in Article 8 of Regulation No 1348/2000, where such a document consists of a document instituting the proceedings, must be interpreted as meaning that documentary evidence which has a purely evidential function and is not intrinsically linked to the application in so far as it is not necessary for understanding the subject‑matter of the claim and the cause of action does not form an integral part of that document. 70 It is possible from an examination of the term ‘document’, as follows from the ECHR and, in particular, Article 6(3)(a) of that convention, referred to at paragraph 57 above, to reach a similar conclusion as regards criminal proceedings. According to the European Court of Human Rights, an indictment must enable the person charged to be informed not only of the cause of the accusation against him, that is the acts he is alleged to have committed and on which the accusation is based, but also of the detailed legal characterisation of those facts (see judgments of the European Court of Human Rights of 25 March 1999, Pélissier and Sassi v France, ECHR 1999‑II, § 51, and of 19 December 2006, Mattei v France, No 34043/02, § 34). On the other hand, the rights of the defence are not undermined by the mere fact that the indictment does not include the evidence in support of the facts on which the accused stands charged. 71 Ruling in respect of Article 6(3)(e) of the ECHR, under which a person charged with a criminal offence has the right to an interpreter, the European Court of Human Rights has also held that that right does not go so far as to require a written translation of all items of written evidence or official documents in the procedure (judgment of 19 December 1989, Kamasinski v Austria, Series A, No 168, § 74). 72 As is apparent from the conclusion at paragraph 57 above, the requirements for the protection of the rights of the defence are not as stringent in civil and commercial matters as they are in criminal proceedings. 73 In the light of all the foregoing considerations, the term ‘document to be served’ in Article 8(1) of Regulation No 1348/2000, where such a document is a document instituting the proceedings, must be interpreted as meaning the document or documents which must be served on the defendant in due time in order to enable him to assert his rights in legal proceedings in the State of transmission. Such a document must make it possible to identify with a degree of certainty at the very least the subject‑matter of the claim and the cause of action as well as the summons to appear before the court or, depending on the nature of the pending proceedings, to be aware that it is possible to appeal. Documents which have a purely evidential function and are not necessary for the purpose of understanding the subject-matter of the claim and the cause of action do not form an integral part of the document instituting the proceedings within the meaning of Regulation No 1348/2000. 74 That interpretation is consistent with the objectives of Regulation No 1348/2000 to improve and expedite the transmission of documents. Indeed, it can take a long time to translate supporting documents and, in any event, such translation is not necessary for the purposes of the action which will take place before the court of the Member State of transmission and in the language of that State. 75 It is for the national court to determine whether the content of the document instituting the proceedings enables the defendant to assert his rights in the Member State of transmission and, in particular, to identify the subject-matter and the cause of action as well as to be aware of the existence of the legal proceedings. 76 If the national court considers that the content is inadequate in that regard on the ground that certain necessary information relating to the application is to be found in the annexes, it must endeavour to resolve that problem in accordance with its national procedural law, taking care to ensure the full effectiveness of Regulation No 1348/2000, in compliance with its objective (see, to that effect, Leffler, paragraph 69), while according maximum protection to the interests of both parties to the dispute. 77 The party issuing the document instituting the proceedings could thus be afforded the opportunity of remedying the lack of a translation of an essential annex by forwarding one as soon as possible in accordance with the rules laid down in Regulation No 1348/2000. The Court has held that the effect that sending a translation has on the date of service should be determined by analogy with the double-date system developed in Article 9(1) and (2) of Regulation No 1348/2000 (Leffler, paragraphs 65 to 67) in order to protect the parties’ interests. 78 In the light of all the foregoing considerations, the answer to the first question must be that Article 8(1) of Regulation No 1348/2000 is to be interpreted as meaning that the addressee of a document instituting proceedings which is to be served does not have the right to refuse to accept that document, provided that it enables the addressee to assert his rights in legal proceedings in the Member State of transmission, where annexes are attached to that document consisting of documentary evidence which is not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, but which has a purely evidential function and is not necessary for understanding the subject‑matter of the claim and the cause of action. It is for the national court to determine whether the content of the document instituting the proceedings is sufficient to enable the defendant to assert his rights or whether it is necessary for the party instituting the proceedings to remedy the fact that a necessary annex has not been translated. The second question 79 By its second question, posed in the event that the answer to the first is that the addressee of a document may refuse to accept it if the annexes to that document are not translated, the Bundesgerichtshof asks whether Article 8(1)(b) of Regulation No 1348/2000 must be interpreted as meaning that the addressee of a document to be served is deemed to ‘understand’ the language of a Member State of transmission within the meaning of that regulation where, in the course of his business, he agreed in a contract with the applicant that correspondence was to be conducted in the language of the Member State of transmission. In view of the reservation formulated to the answer to the first question, it is necessary to answer the second question. 80 In order to establish whether the addressee of a document served understands the language of the Member State of transmission in which the document is written, the court must examine all the relevant evidence submitted by the applicant. 81 The parties which have submitted observations are divided on the question whether the addressee of a document should be deemed to understand the language of the Member State of transmission because he has signed a clause agreeing to the use of that language, as described by the referring court. 82 According to Grimshaw, it alone is in a position to say whether it understands the document served. IHK Berlin defends the opposite position, namely that signature of such a clause entails acceptance of that language as the language in which a judicial document is to be served, in the same way as a jurisdiction clause is valid between parties. 83 The other parties which submitted observations are of the view that, while knowledge of the language of the document for the purpose of Article 8(1)(b) of Regulation No 1348/2000 cannot be inferred from such a clause, it is an indication of knowledge of that language. Weiss and the Czech and Slovak Governments point out, inter alia, that the degree of knowledge of a language required for correspondence is not the same as that needed to defend an action. 84 Grimshaw’s interpretation cannot be accepted, as that would mean that whether service was effective was dependent on whether the addressee of the document was willing to accept it. 85 Nor is it possible to accept IHK’s interpretation. In order for Article 8(1)(b) of Regulation No 1348/2000 to be effective, the competent court must verify that the requirements of that provision are in fact met. The fact that a clause has been signed which provides that a particular language is to be used for correspondence and performance of the contract cannot give rise to a presumption of knowledge of the agreed language. 86 On the other hand, the signature of such a clause must be regarded as evidence of knowledge of the language of the document served. Greater weight will attach to that evidence where the clause refers not only to correspondence between the parties but also to correspondence with the authorities and public institutions. It may be supported by other evidence, such as the fact that correspondence was actually conducted by the addressee of the document in the language of the document served, or the presence in the original contract of clauses conferring jurisdiction on the courts of the Member State of transmission in the event of dispute or making the contract subject to the law of that Member State. 87 As stated by Weiss and the Czech and Slovak Governments, the degree of knowledge of a language required for correspondence is not the same as that needed to defend an action. However, that is a matter of fact to be taken into account by the court in determining whether the addressee of a document served is capable of understanding the document so as to be able to assert his rights. It is necessary for the court, in accordance with the principle of equivalence, to take account of the extent to which an individual domiciled in the Member State of transmission would understand a judicial document written in the language of that State. 88 The answer to the second question must be that Article 8(1)(b) of Regulation No 1348/2000 is to be interpreted as meaning that the fact that the addressee of a document served has agreed in a contract concluded with the applicant in the course of his business that correspondence is to be conducted in the language of the Member State of transmission does not give rise to a presumption of knowledge of that language, but is evidence which the court may take into account in determining whether that addressee understands the language of the Member State of transmission. The third question 89 By its third question, posed in the event that the second question referred by the Bundesgerichtshof is answered in the negative, that court asks whether Article 8(1) of Regulation No 1348/2000 must be interpreted as meaning that the addressee of a document served may not, in any event, rely on that provision in order to refuse acceptance of annexes to the document which are not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands if the addressee concludes a contract in the course of his business in which he agrees that correspondence is to be conducted in the language of the Member State of transmission and the annexes concern that correspondence and are written in the agreed language. 90 It follows from the answer given by the Court to the first question that it may be necessary to translate certain annexes to a document instituting proceedings which has been served if the content of that document which has been translated is insufficient to enable the subject‑matter of the claim and the cause of action to be identified, so that the defendant can assert his rights, on the ground that certain necessary information relating to the application is to be found in those annexes. 91 However, such a translation is not needed where it is apparent from the factual circumstances that the addressee of the document instituting the proceedings is familiar with the content of those annexes. That is the case where the addressee is the author of those documents or can be presumed to understand the content, for example because he signed a contract in the course of his business in which he agreed that correspondence was to be conducted in the language of the Member State of transmission and the annexes concern that correspondence and are written in the agreed language. 92 The answer to the third question must therefore be that Article 8(1) of Regulation No 1348/2000 is to be interpreted as meaning that the addressee of a document served may not in any event rely on that provision in order to refuse acceptance of annexes to the document which are not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, where the addressee concluded a contract in the course of his business in which he agreed that correspondence was to be conducted in the language of the Member State of transmission and the annexes concern that correspondence and are written in the agreed language. Costs 93 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Third Chamber) hereby rules: 1. Article 8(1) of 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 is to be interpreted as meaning that the addressee of a document instituting the proceedings which is to be served does not have the right to refuse to accept that document, provided that it enables the addressee to assert his rights in legal proceedings in the Member State of transmission, where annexes are attached to that document consisting of documentary evidence which is not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, but which has a purely evidential function and is not necessary for understanding the subject‑matter of the claim and the cause of action. It is for the national court to determine whether the content of the document instituting the proceedings is sufficient to enable the defendant to assert his rights or whether it is necessary for the party instituting the proceedings to remedy the fact that a necessary annex has not been translated. 2. Article 8(1)(b) of Regulation No 1348/2000 is to be interpreted as meaning that the fact that the addressee of a document served has agreed in a contract concluded with the applicant in the course of his business that correspondence is to be conducted in the language of the Member State of transmission does not give rise to a presumption of knowledge of that language, but is evidence which the court may take into account in determining whether that addressee understands the language of the Member State of transmission. 3. Article 8(1) of Regulation No 1348/2000 is to be interpreted as meaning that the addressee of a document served may not in any event rely on that provision in order to refuse acceptance of annexes to the document which are not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands where the addressee concluded a contract in the course of his business in which he agreed that correspondence was to be conducted in the language of the Member State of transmission and the annexes concern that correspondence and are written in the agreed language. [Signatures] * Language of the case: German.