Keywords

Summary



Keywords

1. Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation No 1348/2000 – Document instituting proceedings – Definition

(Council Regulation No 1348/2000, Art. 8(1))

2. Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation No 1348/2000 – Service of a document written in a language other than the official language of the Member State addressed

(Council Regulation No 1348/2000, Art. 8(1))

3. Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation No 1348/2000 – Service of a document written in a language other than the official language of the Member State addressed

(Council Regulation No 1348/2000, Art. 8(1)(b))

4. Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation No 1348/2000 – Service of a document written in a language other than the official language of the Member State addressed

(Council Regulation No 1348/2000, Art. 8(1))

Summary

1. The term ‘document to be served’ in Article 8(1) of Regulation No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters is to be interpreted, where such a document is a document instituting the proceedings, 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 that regulation.

(see para. 73)

2. Article 8(1) of Regulation No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters 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.

First of all, it follows from an examination of a number of provisions of the 1965 Hague Convention, the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended, the Convention of 26 May 1997 on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, Regulations No 1348/2000 and No 44/2001 and the information communicated by Member States under Article 14(2) of Regulation No 1348/2000 that it is not considered to be a necessary component of the exercise of the defendant’s right 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.

Secondly, it is apparent from an autonomous interpretation of the term ‘document instituting proceedings’ 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. On the other hand, documents which have a purely evidential function, distinct from the purpose of service itself, and are not intrinsically linked to the application in so far as they are not necessary for 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 that provision. 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.

(see paras 52, 56, 64-65, 69, 75, 78, operative part 1)

3. Article 8(1)(b) of Regulation No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters 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 in such a way as to enable him to assert such rights.

(see para. 88, operative part 2)

4. Article 8(1) of Regulation No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters 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.

It may be necessary to translate annexes 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. 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.

(see paras 90-92, operative part 3)