62004CC0473_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. By order of 22 October 2004, the Belgian Hof van Cassatie (hereinafter referred to also as ‘the Court of Cassation’) referred to the Court under Articles 68 EC and 234 EC two questions on the interpretation 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 (hereinafter referred to as ‘Regulation No 1348/2000’ or simply ‘the Regulation’). (2)
2. In essence, the Belgian court seeks to ascertain whether Regulation No 1348/2000 establishes a hierarchy between the different methods of service for which it provides. In particular, the referring court asks whether service effected via the agencies designated by the Member States takes precedence over service effected directly by post and is therefore, where both methods of service are used, the relevant method for the purpose of determining the date of service.
I – Legal background
A – Community law
3. Regulation No 1348/2000 was adopted by the Council on the basis that the ‘proper functioning of the internal market’ entailed the need ‘to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States’ (second recital).
4. Chapter II of the Regulation contemplates different methods for the service in a Member State of judicial documents in civil or commercial matters originating in another Member State.
5. The first method is via agencies, duly designated by the Member States, which are competent to transmit and receive the documents in question (‘service through designated agencies’). The Regulation prescribes in detail the procedures and time-limits to be observed in relation to that method (Section 1, Articles 4 to 11). In brief, the document for service, accompanied by a request drawn up in a standard form and translated as necessary, is sent by the transmitting agency of one Member State to the receiving agency of another Member State. The receiving agency sends a prescribed receipt to the transmitting agency and proceeds to serve the document or cause it to be served in accordance with its national law. It then draws up a certificate of completion of those formalities which has to be sent to the transmitting agency.
6. In addition to this first method, the Regulation also provides for ‘other means’ of service (Section 2), which are: (i) service via consular or diplomatic channels (Articles 12 and 13); (ii) direct service by post (Article 14, hereinafter ‘service by post’); (iii) direct service (Article 15).
7. Of particular relevance for our purposes is Article 14, dealing with service by post, which provides as follows:
‘1. Each Member State shall be free to effect service of judicial documents directly by post to persons residing in another Member State.
2. Any Member State may specify, in accordance with Article 23(1), the conditions under which it will accept service of judicial documents by post.’
8. Portugal has stated that it will accept service by post, provided it is made by registered letter with advice of delivery and accompanied by a translation in accordance with Article 8 of the Regulation. (3)
B – National law
9. So far as concerns this case, Article 1051(1) of the Belgian Judicial Code (‘the Code’) provides that the time-limit for bringing an appeal is one month from service of the judgment. Under Article 55 of the Code, that period is extended by 30 days if the person on whom the judgment was served does not reside or have a registered address in Belgium.
10. Also of relevance is Article 40(1), according to which service by post is deemed to have been effected when the document is handed in at the post office.
II – Facts and procedure
11. The facts of the case are described in the order for reference in somewhat fragmentary fashion.
12. It is possible to piece together, however, that the main proceedings concern a dispute between two companies: the Portuguese company Plumex and the Belgian company Young Sports.
13. At first instance, the Rechtbank van Koophandel (Courtrai Commercial Court) gave judgment in favour of Young Sports, which the latter served on the opposite party by two different methods.
14. Service was first effected directly by post, in accordance with Article 14 of the Regulation: Young Sports delivered the documents for service to the post office on 12 October 2001 and Plumex posted the receipt on 17 October 2001.
15. A second service was effected through the agencies designated by Belgium and Portugal, taking place on 6 November 2001.
16. On 17 December 2001, Plumex lodged notice of appeal to the Hof van Beroep (Court of Appeal) against the judgment thus served. The appeal was ruled inadmissible, however. The court of appeal held that the time-limit for an appeal against the judgment of the lower court had begun to run on the day following the first service (the service by post, effected on 12 October 2001) and had expired one month and 30 days thereafter, on 11 December 2001. The notice of appeal lodged on 17 December 2001 was therefore out of time.
17. Plumex disagreed with that analysis and appealed in cassation.
18. Specifically, the appellant company challenged the decision of the Hof van Beroep to give more weight to the service by post. In Plumex’s view, under the scheme of the Regulation that was a ‘secondary’ method of service, to be used only in exceptional circumstances; it was, in any event, subordinate to the primary method of service contemplated by Articles 4 to 11, and it was therefore from the date of the latter that the limitation period was to be computed even if service had already been effected by the other permitted methods. Accordingly, Plumex maintains, in the present case the limitation period for appeals began to run only on 6 November (the date of the ‘primary’ service) and not on 12 October 2001 (the date of the ‘secondary’ service).
19. Entertaining doubts as to the interpretation of Regulation No 1348/2000, the Court of Cassation decided to stay its proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is the service contemplated by Articles 4 to 11 the primary method of service and service directly by post contemplated by Article 14 a secondary method of service, whereby the former method takes precedence over the latter when both are effected in accordance with the legal requirements?
(2) In the case of service being effected twice, once in accordance with Articles 4 to 11, and once directly by post in accordance with Article 14, does the time-limit for an appeal begin to run against the person on whom service was effected on the date of the service effected in accordance with Articles 4 to 11 and not on the date of service in accordance with Article 14?’
20. In the ensuing proceedings, written observations were submitted by the Austrian, Finnish, Swedish and United Kingdom Governments, as well as by the Commission.
III – Legal analysis
The first question
21. By its first question, the national court asks whether any hierarchy exists between service effected via the agencies designated by the Member States, in accordance with Articles 4 to 11, and service effected by post, in accordance with Article 14 of the Regulation, whereby the former falls to be considered the primary method and the latter a secondary or subordinate method.
22. Let me say at once that, like all the governments that have submitted observations and the Commission, I find that the answer to this question must be no. It is my view, in other words, that no hierarchy exists between the two forms of service mentioned and that service by post can therefore be used as an alternative or in addition to the other permitted methods without it being necessary for service to have first been unsuccessfully attempted by those methods, and in particular through the agencies designated by the Member States.
23. That view, which is also held by the majority of academic commentators, is borne out by literal and teleological considerations.
24. As regards the former, suffice it to observe that the Regulation contains no provision establishing an order of precedence between the various methods of service contemplated. On the contrary, Article 14(1) expressly leaves Member States ‘free’ to effect service of judicial documents ‘directly by post to persons residing in another Member State’. In addition, that freedom is not in any way conditional on prior attempted service by the other methods, in particular the method governed by Articles 4 to 11.
25. Likewise, the view I have taken seems to me also to be consistent with the purpose of Regulation No 1348/2000, which is to ‘improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States’ (second recital).
26. I think that an arrangement whereby precedence was accorded to service via the designated agencies would be difficult to reconcile with that purpose, since that method, by its nature (see point 5 above), is certainly not the fastest. And, conversely, it would be even more difficult to reconcile with that purpose the assignment of a merely subordinate role – once it had been decided to grant that method full recognition – to service by post, which is certainly the fastest and least burdensome (see point 6 above).
27. More logical therefore, and more consistent with the aforementioned purpose, is the opposite interpretation of the Regulation, which treats the various permitted methods of service as equal and thus allows parties to choose whichever method they deem best meets their needs at any given time or even to use several methods at once in the expectation that at least one will prove successful. (4)
28. For the above reasons, I therefore take the view that Regulation No 1348/2000 establishes neither a hierarchy nor an order of precedence as between service in accordance with Articles 4 to 11 and direct service by post in accordance with Article 14.
The second question
29. By its second question, the national court seeks to ascertain, in essence, on the basis of which method of service the date of service should be determined where service is effected both in accordance with Articles 4 to 11 and by post.
30. The Commission and the Austrian Government correctly point out that the Regulation is silent on the question and infer from that silence that the answer to the question must be sought not in the Regulation but in the national rules of the individual Member States. In the case of service by more than one method, therefore, the question of which method starts time running for the purposes of a particular procedural time-limit (in this case, the time-limit for appeal) would fall to be determined by reference to the national rules applicable at the relevant time.
31. It seems to me, however, that that approach goes against the trend of recent years which has seen the law in this area not only progressively ‘communitarised’ but even made subject to a regulation.
32. It will be recalled that, after declaring their objective of creating a common ‘area of freedom, security and justice’, the Member States decided ‘to establish [the necessary] measures firmly’ within the mechanisms and principles of the Community legal order; in other words, they made it their intention to ‘communitarise’ the matter and thus to ensure that the measures concerned will be ‘interpreted autonomously’ and receive ‘uniform application’. (5)
33. It was in furtherance of that same intention that the Treaty of Amsterdam transferred the power to adopt measures relating to judicial cooperation in civil matters from the ‘third pillar’ of the European Union, from Title VI of the EU Treaty (Articles K to K9) to be precise, to the ‘Community pillar’. And, more specifically, it was in that context that a Community measure was drawn up which reproduced the provisions of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, which had been promoted by the Council under the ‘third pillar’ (Article K3 of the EU Treaty to be precise), but had failed to enter into force for want of the necessary number of ratifications. (6)
34. What is more, the measure in question is not even a directive, as was initially proposed by the Commission. (7) Choosing not to act on that proposal but to follow instead the European Parliament’s alternative view, which emphasised the need for ‘the rapid, transparent’ and above all ‘homogenous implementation’ of the provisions in question, (8) the Council decided to enact those provisions in the form of a regulation, which is, of course, binding in its entirety and directly applicable in all Member States. The result was Regulation No 1348/2000, of which interpretation is now sought.
35. In that light, it therefore seems to me that, even though the legislation is silent on the point, the interpreting court cannot but take it upon itself, as frequently happens, (9) to ascertain whether by applying the usual canons of construction it is possible to give the legislation a ‘Community’ interpretation, that is, an ‘autonomous’ and ‘uniform’ interpretation, rather than refer in each case to the laws of the individual Member States.
36. It seems to me, as it does to the Finnish, Swedish and United Kingdom Governments, that on a logical reading of the Regulation, taking account of its aforementioned objectives, such an interpretation is possible.
37. As seen above, the Regulation expressly seeks to ‘improve’ and ‘expedite’ the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States (second recital).
38. That being so, it is entirely logical to presume that, in authorising the use of the various methods of service specified without establishing a hierarchy among them, the Regulation was intended to improve the system by extending the range of options available. But precisely for that reason it must also be presumed that it did not intend to fuel the likelihood of confusion and uncertainty by setting those methods up in competition with one another in relation to determination of the date of service. That is just what would happen, however, if, without anything in the Regulation so specifying, the natural and logical criterion according to which the date in question is determined by the first service validly effected were to be called in question.
39. As for the objective of ‘expediting’ the transmission of documents, it seems to me that the objective of speed and efficiency of transmission is furthered if, given that there is no hierarchy among the various methods, precedence is based on time of service rather than on the method of service chosen. That means, in other words, that for the present purposes the relevant service is the service which was effected first, in proper form, and not the service which, for whatever reason, took place later.
40. For all those reasons, I take the view that, on a proper construction of Regulation No 1348/2000, where service is effected twice, once in accordance with Articles 4 to 11, and once directly by post in accordance with Article 14, a judicial document is to be deemed served when the first service has been validly effected.
IV – Conclusions
41. In the light of the foregoing considerations, I propose that the Court should reply to the Hof van Cassatie in the following terms:
‘(1) 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 establishes neither a hierarchy nor an order of precedence as between service in accordance with Articles 4 to 11 and direct service by post in accordance with Article 14.
(2) On a proper construction of Regulation No 1348/2000, where service is effected twice, once in accordance with Articles 4 to 11, and once directly by post in accordance with Article 14, a judicial document is to be deemed served when the first service has been validly effected.’
(1) .
(2)  –	OJ 2000 L 160, p. 37.
(3)  –	See Information communicated by Member States under Article 23 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 (OJ C 151 of 22 May 2001, p. 4), as amended by the First update of the information communicated by Member States pursuant to Article 23 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 (OJ C 202 of 18 July 2001, p. 10).
(4)  –	A study commissioned by the Commission on the application of Regulation No 1348/2000 ‘confirms that documents are frequently served directly by post’ [see Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the application of Council Regulation (EC) No 1348/2000 on the service in the Member States of Judicial and Extrajudicial documents in civil or commercial matters (COM/2004/603, p. 7)].
(5)  –	See Case C-443/03 Leffler
[2005] ECR I‑0000, paragraphs 45 and 46.
(6)  –	See Council Act of 26 May 1997 drawing up a Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters (OJ 1997 C 261, p. 1). It may also be noted, for the sake of completeness, that prior to that convention, the matter was governed by international conventions, including the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the parties to which included most Member States of the Union.
(7)  –	Proposal for a Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 1999 C 247 E, p. 11).
(8)  –	In its Report on the proposal for a Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (COM(1999)219 – C5‑0044/1999 – 1999/0102(CNS), p. 5) the Parliament observed that the ‘advantage of regulations is that they allow the rapid, transparent and homogenous implementation of the Community text, in line with the intended objective’.
(9)  –	See Leffler, cited in footnote 5.