Opinion of the Economic and Social Committee on the "Proposal for a Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters"

(1999/C 368/16)

On 12 July 1999 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Economic and Social Committee decided to instruct the Section for the Single Market, Production and Consumption, to prepare its work on this matter and appointed Mr Hernández Bataller as rapporteur-general.

At its 367th plenary session of 20 and 21 October 1999 (meeting of 21 October), the Economic and Social Committee adopted the following opinion by 85 votes in favour with two abstentions.

1. Introduction

1.1. Any state governed by the rule of law must have general legislation which strikes a balance between the rights and obligations of all parties. In the event that rights acknowledged by the legal system are prejudiced by an infringement of such laws, a legal procedure must be available for litigants to seek redress and, at the same time, to re-establish the balance of interests desired by the legislator. Access to justice is consequently a human right.

1.2. According to Article 2 of the Treaty on European Union, the objectives of the Union include:

- to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured;

- to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by the Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.

1.3. The sound operation of the internal market - especially in view of the gradual growth of new forms of concluding contracts, such as cross-border e-commerce - creates a need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States.

1.4. It is important that litigants be able to understand and assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country, by means of procedures which combine rapidity and legal certainty in a balanced way.

1.5. Most Member States are parties not only to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters but also to a number of bilateral or regional instruments, which together constitute a system characterised by its complexity, heterogeneity and lack of efficacy.

1.5.1. Before the Amsterdam Treaty entered into force, the Member States, acting on the basis of Article K.3(2) of the Union Treaty, concluded a 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 Act of the Council of the European Union on 26 May 1997(1). But the Convention has not been ratified by the majority of them.

2. The Commission's proposal

2.1. As the Council Convention of 26 May 1997 was not ratified, its provisions are not applicable. Transposing it into a Community instrument will have the effect, among others, of ensuring that it enters into operation on the same early date, well known to all.

2.1.1. The purpose of the proposal is to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States.

2.1.2. The subject-matter covered by the Convention is now within the ambit of Article 65 of the Treaty; the legal basis for this proposal is Article 61(c) of that Treaty.

2.1.3. The new Title IV is not applicable in the United Kingdom and Ireland, unless they "opt in" in the manner provided by the Protocol annexed to the Treaties. These countries have, however, indicated their intention of becoming fully involved in the Community's activities in the field of judicial cooperation in civil matters. Title IV is likewise not applicable in Denmark, by virtue of the relevant Protocol.

2.2. The objectives of the proposal are to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States. It further develops the Union's objective of establishing an area of freedom, security and justice within which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country.

2.2.1. The cross-border impact of the proposal's objectives provide sufficient grounds for action at Community level. In addition, in accordance with the principle of proportionality, the proposed instrument is confined to the minimum needed for the attainment of these objectives and does not exceed what is necessary for that purpose.

2.2.2. The proposal is consistent with the 1965 Hague Convention, while introducing the following innovations:

- it makes provision for establishing more direct channels between the persons or authorities responsible for transmitting a document and those serving it or ensuring it is served;

- it provides for certain practical means to be used to ease the practitioners' tasks, including modern means of document transmission, a complete, user-friendly form and directories of Member States' designated receiving agencies;

- in order to safeguard the rights of the parties, it introduces innovative rules on the translation of documents;

- it establishes an advisory committee to assist the Commission with the implementing provisions;

- it replaces the system for service of documents for the purposes of relations between the Member States that are parties thereto.

2.2.3. The following differences, however, occur in the draft directive's adaptation of the Convention of 26 May 1997:

- jurisdiction of the Court of Justice: unlike Article 17 of the Convention, the directive does not need to confer jurisdiction on the Court of Justice;

- implementing provisions: it confers on the Commission powers of implementation to adopt provisions to give effect to it;

- relationship with other agreements and arrangements: the Member States, individually or acting in concert, are empowered to expedite the transmission of documents. The exercise of this power will be monitored by the Commission; it must be notified of draft provisions;

- reservations: the proposal makes no provision for reservations, but only for transitional or specific arrangements, which must be notified to the Commission and published in the Official Journal;

- formal provisions: as soon as the directive comes into force, the Commission will fully assume the role of monitoring its application, proposing amendments if need be, and informing the Member States and the general public of communications and notifications required by the directive.

3. General comments

3.1. The Committee agrees with the Commission's proposal for a directive, as it supports the development of an area of freedom, security and justice in the European Union. This objective entails, among other things, the adoption of measures relating to judicial cooperation in civil matters needed for the sound operation of the internal market and the better administration of justice.

3.1.1. The Committee believes that, as a result of the entry into force of the Amsterdam Treaty, these measures will give a new impetus to citizens to strengthen their democratic traditions.

3.1.2. The Committee is aware of the mutual enrichment as well as the difficulties which may result from bringing together countries whose cultures, social systems, political organisation and legal systems are markedly different, albeit with a common basis and principles. They must, however, face up to civil society's growing demand for greater equity and justice, and for comparable conditions of legal certainty and protection.

3.1.3. The Committee is therefore convinced that:

- mutual confidence must be built up between European and national institutions, as well as between these institutions and the citizens of Europe;

- since the establishment of the single market, a single currency and the foundations of a social Europe, the creation of an area of freedom, security and justice is becoming one of the Union's primary objectives.

3.2. The Committee considers that adopting the proposal in the form of a directive is sufficiently warranted, but in the future this type of legal act should be adopted in the form of a regulation.

3.3. The Committee is in favour of abolishing the transitional period, in the interests of the progressive establishment of the "area of freedom, security and justice" referred to in the Treaty of Amsterdam, given the non-implementation or non-uniform implementation of the acts adopted by the representatives of the Member State governments in this field prior to this Treaty being concluded.

4. Specific comments

4.1.1. The proposal's objectives will be of benefit to "litigants", natural or legal persons, irrespective of whether or not they are Union citizens. The right to rapid and fair justice transcends citizenship, and is a fundamental human right which cannot under any circumstances depend upon nationality. Moreover, from the viewpoint of the impact on the functioning of the internal market, the benefits flowing from the entry into force of the proposal will be enjoyed by both natural and legal persons, including those from non-union countries.

4.1.2. Insufficient explanation is given concerning the geographical areas in which the proposal is to apply, and this could cause confusion when application occurs. The specific circumstances of certain territories, referred to in Article 299 of the EC Treaty, together with the responsibilities certain Member States have assumed for them, must be taken into account. It should be pointed out, in this regard, that independently of how service or transmission is actually accomplished, the competent bodies must be designated by the national authority assuming the state's external responsibility, thereby guaranteeing the authenticity of the acts of these bodies. The Member States must establish the appropriate legal and administrative channels for this purpose.

4.2. The proposal should explicitly provide that, in the event of unknown domicile, the State addressed should comply with the obligation to "take all reasonable steps, with maximum dispatch, to seek to ascertain the address of the person on whom the document is to be served".

4.3. The Committee believes that the sound operation of the internal market creates a need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States.

4.3.1. The Committee would again emphasis the importance of redress procedures that are rapid and easily accessible, and calls upon the Commission to flesh out its proposals in this direction(2). The creation of effective means of redress is a clear obligation upon the Member States: there must be efficiency and speed in judicial procedures in civil matters, which means that the transmission of judicial and extrajudicial documents should be done in line with the "principle of direct transmission" and by rapid means between bodies designated by the Member States.

4.3.2. The ESC considers the removal of the requirement for documents to be legalised, and of the intervening stages between a document's dispatch from the Member State of transmission and its service in the State addressed, to be helpful for the development of the internal market.

4.4. Since civil actions heard in the context of criminal and tax cases do not fall outside the scope of the draft directive, and it is also possible that documents which cannot easily be defined in legal terms by the appropriate legal body may be requested, an indent along the following lines should be inserted in order to protect the rights of the parties involved:

"the receiving agency shall define as flexibly as possible those documents whose legal character cannot be clearly assigned to either the civil or the commercial field, but which nevertheless have points in common with them."

4.5. Speed in transmission warrants the use of all appropriate means, provided that certain conditions as to the readability and reliability of the document received are observed. State liability in the event of failure to carry out the necessary steps within a reasonable period of time must be clearly established.

4.5.1. The ESC supports the proposal in taking account of technical innovations and new means of transmission accepted by receiving agencies, such as e-mail or Internet, without prejudice to the balance between rapidity and legal certainty. In this connection, Article 4(5) appears to cover only transmission of documents by post: this should be amended.

4.6. Maintaining the principle of no payment of costs for services rendered by a Member State in serving judicial documents strengthens the principle of equality of arms before the courts, since it facilitates access to justice, and is necessary for an efficient legal system. The Committee considers that free legal aid should be guaranteed at all stages of judicial proceedings where own resources are insufficient.

4.6.1. In the event that costs are to be borne by the applicant, the ESC would repeat(3) that the amount involved should be affordable and reflect the costs actually incurred.

4.7. The manual, to be produced and updated by the Commission, should be made available to all economic operators and litigants in general, for example via Internet, so that they are aware of the conditions set by the transmitting and receiving agencies.

4.8. Article 15(1) employs the concept of a "person interested in a judicial procedure". This is, however, vague in legal terms, particularly given that this clause confers an alternative right upon litigants: that of bypassing service by the official agencies on account of allegedly greater rapidity in securing the document.

4.8.1. It would therefore be better to equate the concept of "interested person" with that of a person who is a party to a judicial procedure in accordance with the procedural law of the applicant Member State, or any person who, while not having taken part in administrative or judicial proceedings, is entitled under the terms of the law applicable to such proceedings, to institute legal proceedings, including for the purposes of lodging an appeal.

4.9. Articles 15(2) and 19(2) contain an unusual statement which is practically worthless in terms of Community law. The ESC believes that these clauses should be deleted in order to be consistent with the uniformising effect sought by the draft directive and for the sake of legal certainty for both litigants and the legal operators involved.

4.10. The claim in Article 20(1) of prevalence, in matters to which the directive applies, over other provisions contained in conventions concluded by the Member States, appears clearly inconsistent with the case-law of the Court of Justice. In the Committee's view, this wording should be corrected in order to ensure the directive's primacy over such conventions in relations between Member States, while complying with agreements between the Member States and third countries(4).

4.11. The Committee advocates the establishment of a coordinated and consistent legal system throughout the Union and consequently calls upon the Commission, Council and European Parliament to:

- take full advantage of the new powers under Article 65 of the EC Treaty to draw up a body of its own civil law rules and to foster compatibility of civil procedures;

- devise appropriate means of ensuring that European and national level institutional actors, as well as civil society representatives, are involved in defining and implementing future measures;

- guarantee that European citizens are kept as well-informed as possible, and ensure that legal advice and aid services are established in all the institutions of the Union, particularly at local and regional level.

Brussels, 21 October 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) OJ C 261, 27.8.1997.

(2) OJ C 407, 28.12.1998, p. 50.

(3) See the ESC Opinion on the Green Paper on public sector information. OJ C 169, 16.6.1999, p. 30.

(4) It is under these latter circumstances that this "presumed" primacy of the directive arises, since Article 307 of the Treaty establishing the European Community is based on the rule contained in Article 30.4.b) of the 1969 Vienna Convention, as amended in 1986; and similarly the case-law of the European Court of Justice in its Levy judgement of 2 August 1993, Case C-158/91, ECR 1993 I-4278 (grounds, paragraph 10 et seq., pp. 4304 et seq.) and confirmed by the Evans Medical judgement of 28 March 1995, Case C-324/93, ECR I-563 (grounds, paragraph 25 et seq., pp. 605 et seq.).