Opinion of the Advocate General — ECLI:EU:C:2018:341
Date: 2018-05-29
Language of the case: Czech
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary of the arguments of the parties 40. Written observations have been submitted by O.K. Trans Praha, the Greek, Italian and Austrian Governments and the European Commission. No hearing has been requested and none has been held by the Court. 41. O.K. Trans Praha considers that in this instance there is no exceptional circumstance capable of warranting review of the European order for payment under Article 20(2) of Regulation No 1896/2006. 42. The present European order for payment procedure was preceded by three other procedures of the same type and, in each of those three procedures, Catlin Europe lodged a statement of opposition, proving that it was aware of the possibilities for defending itself. The failure to notify it of the possibility of refusing to accept the present order therefore had no effect on its rights of defence. 43. The fact that no statement of opposition was lodged in the present procedure was due to an error by an employee of Catlin Europe, which was now trying to rectify that error by an attempt to obtain a review. 44. The Greek Government points out that the purpose of Regulations No 1896/2006 and No 1393/2007 is to ensure a fair balance between the applicant’s interests and those of the defendant, by reconciling the aims of efficient and rapid transmission of procedural documents with the need to ensure appropriate protection for the rights of defence of the addressee of those documents. 45. Furthermore, according to established case-law, under Regulation No 1393/2007, when the receiving agency serves a judicial or extrajudicial document on its addressee, it is required in every case to attach to that document the standard form set out in Annex II to that regulation, in order to inform the addressee of his right to refuse to accept the document if it is not written in or translated into a language which he knows or is deemed to understand. (4) 46. It follows that the interpretation given to the possibility of a review of a European order for payment in exceptional cases, as provided for in Article 20(2) of Regulation No 1896/2006, must not have the effect of undermining the rights of defence of the addressee of the order. 47. It is evident that a defendant’s rights of defence are infringed where he is not able to understand, in the absence of an appropriate translation, the content of the application for an order for payment, and therefore the claim against him, since in those circumstances he is not able to make a well-informed decision whether to oppose the application or to leave it uncontested. 48. Consequently, the failure to inform the addressee of a European order for payment of the option open to him to refuse to accept the document to be served on the ground that it is not written in or translated into one of the languages referred to in Article 8 of Regulation No 1393/2007 should be regarded as constituting an exceptional circumstance within the meaning of Article 20(2) of Regulation No 1896/2006 and, therefore, as warranting review under that provision. 49. According to the Italian Government, on the other hand, the failure to inform the addressee of the option of refusing to accept the document to be served if it is not drawn up in his own language or in a language he knows does not entitle him to apply for review of a European order for payment on the basis of Article 20(2) of Regulation No 1896/2006. 50. Consequently, such a formal defect does not render either the document to be served or the procedure for service invalid. The procedure for service must simply be rectified by providing the party concerned with the standard form set out in Annex II to Regulation No 1393/2007, so that the time limit for lodging a statement of opposition under Article 16(2) of Regulation No 1896/2006 does not start to run until that rectification has been made. That being so, the requirement laid down for the application of Article 20 of Regulation No 1896/2006, that the defendant must provide evidence that the circumstance relied on prevented him from lodging a statement of opposition in good time, is not met in the present case. 51. Moreover, none of the circumstances warranting review referred to in Article 20 corresponds to service that is improper because of failure to inform the addressee of the possibility of refusing to accept the document. 52. The Austrian Government reaches the same conclusion as the Italian Government, but on the basis of a slightly different argument: although Regulation No 1896/2006 contains certain provisions on the service of a European order for payment on the defendant, it does not, however, contain any rule about the language in which service must be effected. 53. However, any questions relating to service not governed by that regulation must be decided in accordance with Regulation No 1393/2007. 54. It follows that, under Article 8 of the latter regulation, a European order for payment must be served with a translation or, where no translation is provided, the defendant must be informed of his right to refuse to accept the document. 55. It is not clear, however, whether a translation of the copy of the application form seeking the order is also required or may be demanded in certain cases. 56. Under Article 12(2) of Regulation No 1896/2006, a European order for payment must be issued together with a copy of the application form. 57. The application form is one in which the claimant only has to tick various boxes, so that the defendant could easily understand the content by reading it alongside the version of the form drawn up and published in his own language. 58. However, it is possible that the application may also contain important explanations in the form of free text. 59. In that situation, where the addressee was not informed of his right to refuse to accept the document even though it was not drawn up in a language which he understood, it must be determined whether service was properly effected. 60. In that regard, it might be argued either that that was not the case, so that the time limit for lodging a statement of opposition had not started to run, or that Article 20(1) of Regulation No 1896/2006 must be applied by analogy. 61. By contrast, Article 20(2) cannot be applied for such a formal defect. That provision only relates to cases where a European order for payment was wrongly issued because of a clerical error. In the case in the main proceedings, the order was correctly issued, and any error — a purely formal matter — occurred only later in the procedure, when the order was served on the defendant. 62. In the Commission’s opinion, the two procedural defects which, according to Catlin Europe, invalidate the service of the European order for payment in the present case — the fact that, first, the copy of the application for the order, which must accompany it, was not drawn up in a language understood by the addressee or in the official language or one of the official languages of the Member State addressed, and that, secondly, the defendant was not informed of his right to refuse to accept the order in question, under Article 8 of Regulation No 1393/2007 — do not constitute exceptional circumstances warranting a review of the order under Article 20 of Regulation No 1896/2006. 63. Any other interpretation would not be consistent with the purpose of the European order for payment procedure. 64. In that regard, the aim of Regulation No 1896/2006 is to simplify, speed up and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims. 65. The main feature of the procedure is that there is an application form which is attached to the regulation and published in all the official EU languages. The standard form is to be completed using numerical codes which are the same in all the language versions, so that the defendant is able to understand that proceedings have been initiated against him, as well as the specific subject matter of the application and the reasons why a pecuniary claim has been brought. 66. The defendant is also informed of the possibility of lodging a statement of opposition to the order. 67. In addition, the right to seek a review of the order is confined to cases where there are exceptional circumstances, which means that the defendant does not have a second opportunity to oppose the order. 68. In any event, a simple remedy is to send the defendant a translation of the application for the order. B. Assessment 69. The referring court asks, first, whether Regulations No 1896/2006 and No 1393/2007 are to be interpreted as meaning that, when a European order for payment is served on a defendant residing in the territory of another Member State, and the application for the order has not been drawn up in or is not accompanied by a translation into either a language which he understands, or the official language of the Member State of enforcement or, where there is more than one official language in that Member State, the official language or one of the official languages of the place where the order is to be served, the addressee must be properly informed, using the standard form set out in Annex II to Regulation No 1393/2007, of his right to refuse to accept the order. 70. Secondly, the referring court asks what the consequences are of failing to inform the addressee of his right to refuse to accept the document to be served, contrary to Article 8(1) of Regulation No 1393/2007, and, more particularly, whether that circumstance is capable of giving grounds for an application for review of the European order for payment under Article 20(2) of Regulation No 1896/2006. 1. Part 1 — applicability of the requirements of Article 8(1) of Regulation No 1393/2007 in accordance with the requirements of Regulation No 1896/2006 (a) The case-law of the Court 71. I refer mainly to the judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, in particular paragraphs 50 to 56 and the case-law cited), which has already examined this issue at length in the light of Regulation No 1393/2007. 72. Confirming its earlier case-law, (5) the Court reiterates in paragraph 50 of that judgment that the possibility provided for in Article 8(1) of Regulation No 1393/2007 of refusing to accept the document at issue constitutes a right of the addressee of that document. 73. It also confirms that the right to refuse to accept service of a document stems from the need to protect the rights of the defence of the addressee of that document, in accordance with the requirements of a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. (6) While the main aim of Regulation No 1393/2007 is to improve the efficiency and speed of judicial procedures and to ensure the proper administration of justice, the Court has held that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees of the documents in question. (7) 74. It is important, therefore, 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 to prepare his defence effectively and to assert his rights in the Member State of transmission. (8) 75. In order for the right of refusal set out in Article 8(1) of Regulation No 1393/2007 to usefully produce its effects, it is necessary that the addressee of the document has been duly informed, in advance and in writing, of the existence of that right. (9) 76. In the system established by Regulation No 1393/2007, that information must be provided to him using the standard form set out in Annex II to that regulation. (10) 77. As regards the scope which must be given to that standard form, the Court has already held that Regulation No 1393/2007 does not contain any exceptions to its use. (11) 78. From that consideration and the aim pursued by the standard form set out in Annex II to Regulation No 1393/2007, as described in points 75 and 76 of this Opinion, the Court has inferred that the receiving agency is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document, by using systematically for that purpose that standard form. (12) (b) Application to the present case 79. In the present case the question is whether the foregoing considerations must also apply in the context of Regulation No 1896/2006. 80. As the Austrian Government has pointed out, questions relating to the service of documents which are not settled by this regulation must be decided in accordance with Regulation No 1393/2007. Article 27 of Regulation No 1896/2006 expressly states that Regulation No 1896/2006 does not affect the application of Regulation No 1348/2000, which was replaced by Regulation No 1393/2007. Furthermore, according to Article 25(2) of this last regulation, references to Regulation No 1348/2000 are to be construed as references to Regulation No 1393/2007. 81. It is clear that, in the present case, the application for the order, which constitutes the document initiating proceedings for the purposes of the issue of the European order for payment, must be classified as a ‘document’ within the meaning of Article 8(1) of Regulation No 1393/2007. 82. As the Austrian Government notes, Article 12(2) of Regulation No 1896/2006 expressly provides that the European order for payment is to be issued together with a copy of the application form, (13) so that both the order and the application must be served on the defendant at the same time. In the present case, both documents were served. 83. Consequently, the requirements of Article 8(1) of Regulation No 1393/2007 are applicable not just to the service of the order itself, but also to the service of the application for the order. Each of these two documents must therefore be served on its addressee in a language which he is deemed to understand, as provided for by Article 8(1), and, where that is not the case, service must be accompanied by the standard form set out in Annex II to that regulation informing the party concerned of his right to refuse to accept the document in question. 84. The foregoing conclusion is all the more compelling because the European order for payment procedure introduced by Regulation No 1896/2006 is not adversarial, in the sense that the national court decides only on the basis of the application made by the claimant, without the defendant even being informed of the existence of a procedure against him. 85. It is therefore not until the order is served that the defendant has the opportunity to be apprised of the existence and content of the application. Observance of the rights of the defence, which Article 8(1) of Regulation No 1393/2007 seeks to protect, is therefore especially important in this context. 86. The fact that, under Regulation No 1896/2006, the application for the order is submitted using a standard form, the model for which is set out in Annex I to that regulation, is irrelevant in this respect. 87. Even if many of the boxes in this standard form can be completed using predetermined codes and are therefore easily comprehensible in so far as the explanations of those codes have been published in the Official Journal of the European Union in all the official EU languages, the fact remains that the standard form also requires the claimant to supply, as is apparent from Article 7(2)(d) and (e) of that regulation, more detailed information including a description of the specific circumstances invoked as the basis of the claim and evidence supporting the claim. The defendant must be apprised of that information in a language which he is deemed to know, in order to understand effectively and completely the meaning and scope of the action brought against him abroad and, where appropriate, to prepare his defence. 88. It must be concluded that the mandatory and systematic use of the standard form set out in Annex II to Regulation No 1393/2007 applies equally to the service of the European order for payment and to the accompanying service of the application for the order. 2. Part 2 — what are the consequences of an infringement of that obligation? (a) The case-law of the Court 89. First of all, as the Commission noted, Article 8 of Regulation No 1393/2007 does not say anything about the legal consequences of failure to inform the addressee of a document of his right to refuse to accept it. It is not apparent from any provision of that regulation that that omission renders the procedure for service invalid. 90. In a case where the document was not drawn up in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, the Court has held that it was possible for the sender to remedy that procedural defect by sending the defendant the translation requested. (14) 91. Furthermore, I would again refer to the judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, in particular paragraphs 57 and 58). 92. According to paragraph 57 of that judgment, ‘where the receiving agency, which is required to serve the document concerned on its addressee residing in another Member State, has not enclosed the standard form in Annex II of Regulation No 1393/2007, that omission cannot render invalid either the document to be served or the procedure for service, as that consequence would be incompatible with the objective pursued by that regulation, which consists in providing a means of direct, rapid and effective transmission between Member States of documents in civil and commercial matters’ (emphasis added). 93. According to paragraph 58, however, ‘as communication of that form constitutes an essential formality, intended to safeguard the rights of defence of the addressee of the act, its omission must be corrected by the receiving agency in accordance with the provisions laid down by Regulation No 1393/2007. The receiving agency must therefore immediately inform the addressee of the document of his right to refuse to accept it, by submitting to him, pursuant to Article 8(1) of that regulation, that standard form’ (emphasis added). (b) Application to the present case 94. In my view, for the same reasons as those set out in points 79 to 88 of this Opinion, the same rules must manifestly apply, by analogy, to the service of documents under Regulation No 1896/2006. 95. As the Court has ruled, it is only after the addressee has been informed of his right to refuse to accept the document and has exercised that right that the court seised may verify whether that refusal was well founded. (15) 96. Therefore, in a case where, as here, the service on the defendant of the application for an order for payment, drawn up in a language other than those referred to in Article 8(1) of Regulation No 1393/2007, was not accompanied by the standard form set out in Annex II to that regulation, that omission must be remedied, as must the resulting failure to inform the addressee of the document of his right to refuse to accept it, by submitting the standard form to the defendant as soon as possible and in accordance with the provisions of that regulation. 97. Furthermore, it is evident from the case-law that, where a European order for payment has not been served properly, as in the present case, it has not legitimately become enforceable and the period within which the defendant may lodge a statement of opposition has not started to run. (16) 98. That being so, the question of reviewing the European order for payment under Article 20 of Regulation No 1896/2006, as raised by the referring court, does not arise. 99. The formal defect invalidating the service of the application for the order for payment has to be regarded as a preliminary issue preceding the review stage: a review presupposes that the period for sending a statement of opposition has expired, whereas, because of the procedural irregularity affecting service of the document, that period has not even started to run. 100. Furthermore, the Court has already held with regard to that provision that: first, since the EU legislature intended to limit use of the review procedure, the article must be interpreted strictly. (17) Secondly, the review procedure presupposed the existence of ‘extraordinary circumstances’ within the meaning of Article 20(1), (18) or ‘exceptional circumstances’ within the meaning of Article 20(2). (19) Thirdly, these cases were exhaustively listed in that article (‘a failure to effect service not being one of them’). (20) Fourthly, the possibility of having the order reviewed after it has become enforceable and the time limit for opposing it has elapsed must not lead to the defendant being given a second opportunity to oppose the claim. (21) 101. On those bases, it seems to me that, contrary to the Greek Government’s claim, the procedural defects mentioned by the defendant cannot warrant review of the European order for payment on the basis of the circumstances referred to in Article 20 of Regulation No 1896/2006. (22) 102. As regards more specifically Article 20(2) of Regulation No 1896/2006, on which the referring court seeks a ruling from the Court, it mentions two grounds for reviewing an order for payment. First, the order for payment must clearly have been wrongly issued, having regard to the requirements laid down in the regulation. Secondly, other exceptional circumstances may warrant a review. 103. Regarding the first ground, as the Commission noted, it must be stated that the order for reference does not contain any evidence showing that the European order for payment was clearly wrongly issued. The European order for payment was issued in accordance with the requirements laid down by the regulation. As for the procedural defect resulting from the failure to serve the order in accordance with Regulation No 1393/2007, it is possible to remedy this by sending the translation requested to the defendant, as stated in points 90 to 93 of this Opinion. 104. Regarding the second ground, it must be assessed whether, in the present case, a review of the European order for payment may be warranted by other exceptional circumstances. 105. I think (as does the Commission) that such exceptional circumstances may be either procedural defects or errors relating to the actual characteristics of the pecuniary claim which is the subject of the order for payment. Since the Court has ruled that Article 20 of Regulation No 1896/2006 must be interpreted strictly, the order for payment cannot be reviewed for just any procedural error. For a procedural error to constitute an exceptional circumstance, it must have a direct effect on the defendant’s rights of defence, that is, in the present case, on his right to oppose the order for payment in accordance with Article 16 of that regulation. 106. Furthermore, as the Italian Government noted, it is precisely the absence of any provision providing for a document or its service to be rendered invalid by the failure to inform the addressee that he could refuse the document which supports the argument that the irregularity is rectifiable. As I said, the irregularity of service resulting from the failure to draft the document to be served in a language which the addressee knows or understands may be remedied by the submission of a copy of the translated document to the addressee immediately afterwards, without his right to lodge a statement of opposition being in any way circumscribed. 107. That also means that, pursuant to Article 8(3) of Regulation No 1393/2007, (23) the irregularity of service as a result of the failure to inform the addressee that he can refuse to accept it does not, as such, render the service invalid, but merely postpones the point from which the period for lodging a statement of opposition starts to run, as provided for in Article 16(1) of Regulation No 1896/2006. IV. Conclusion 108. For those reasons, I propose that the Court should answer the question referred by the Nejvyšší soud (Supreme Court, Czech Republic) as follows: – Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedureand Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, are to be interpreted as meaning that, when a European order for payment is served on a defendant residing in the territory of another Member State, and where the application for the order has not been written in or accompanied by a translation into either a language which he understands or the official language of the Member State of enforcement or, where there is more than one official language in that Member State, in the official language or one of the official languages of the place of service, the addressee must be properly informed, using the standard form set out in Annex II to Regulation No 1393/2007, of his right to refuse to accept the document. – In accordance with the provisions of Regulation No 1393/2007, where that procedural requirement has not been carried out, the procedure may be rectified by transmitting the standard form set out in Annex II to that regulation to the person concerned. – As long as the procedural defect persists, affecting service of the order for payment together with the application for the order, first, the order does not become in any way enforceable, and, secondly, the period allowed for the defendant to lodge a statement of opposition does not start to run. 1 Original language: French. 2 Regulation of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1). 3 Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79). 4 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157). 5 Judgment of 16 September 2015, Alpha Bank Cyprus (C‑519/13, EU:C:2015:603, paragraph 49; see also my Opinion in that case, EU:C:2015:33, where I specifically dealt with this subject), and order of 28 April 2016, Alta Realitat (C‑384/14, EU:C:2016:316, paragraph 61). 6 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, paragraph 51). See also, to that effect, order of 28 April 2016, Alta Realitat (C‑384/14, EU:C:2016:316, paragraph 73). 7 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, paragraph 51). See also, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus (C‑519/13, EU:C:2015:603, paragraphs 30 and 31), and order of 28 April 2016, Alta Realitat (C‑384/14, EU:C:2016:316, paragraphs 48 and 49). 8 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, paragraph 52 and the case-law cited). 9 See judgment of 2 March 2017, Henderson (C‑354/15 (EU:C:2017:157, paragraph 53 and the case-law cited). 10 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, paragraph 54 and the case-law cited). 11 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, paragraph 55 and the case-law cited). 12 See judgment of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157, paragraph 56 and the case-law cited). 13 This obligation is explained by the fact that the defendant must be able, on that basis, to obtain the information needed to enable him to decide whether or not to oppose the claim (recital 13 of Regulation No 1896/2006). 14 See judgment of 8 November 2005, Leffler (C‑443/03, EU:C:2005:665, paragraphs 38 and 53). 15 See order of 28 April 2016, Alta Realitat (C‑384/14, EU:C:2016:316, paragraphs 62 and 89). 16 See, by analogy, judgment of 4 September 2014, eco cosmetics and Raiffeisenbank St. Georgen (C‑119/13 and C‑120/13, EU:C:2014:2144, paragraphs 41 to 43 and paragraph 48). 17 Judgment of 22 October 2015, Thomas Cook Belgium (C‑245/14, EU:C:2015:715, paragraph 31). 18 See order of 21 March 2013, Novontech-Zala (C‑324/12, EU:C:2013:205, paragraphs 20 to 25). 19 See judgment of 22 October 2015, Thomas Cook Belgium (C‑245/14, EU:C:2015:715, paragraphs 29 and 30). 20 Judgment of 4 September 2014, eco cosmetics and Raiffeisenbank St. Georgen (C‑119/13 and C‑120/13, EU:C:2014:2144, paragraph 44). 21 See judgment of 22 October 2015, Thomas Cook Belgium (C‑245/14, EU:C:2015:715, paragraph 48). 22 I note that this view is also supported by O.K. Trans Praha, the Italian and Austrian Governments and the Commission. 23 Which provides that ‘in that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed’.