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'
Date: 1999-10-21
Institutions: European Economic and Social Committee
Subjects: commercial court, court of civil jurisdiction, ordinary court of law

20.12.1999

EN

Official Journal of the European Communities

C 368/47

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 Herna´ndez 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

Any state governed by the rule of law must have
1.1.
general legislation which strikes a balance between the rights
and obligations of all parties. In the event that rights acknowl-
edged 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.

According to Article 2 of the Treaty on European

1.2.
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.

the

The

sound operation of

1.3.
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.

Matters but also to a number of bilateral or regional instru-
ments, 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.

The purpose of the proposal

is to improve and
2.1.1.
expedite the transmission of judicial and extrajudicial docu-
ments 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.

The new Title IV is not applicable in the United
2.1.3.
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.

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

(1) OJ C 261, 27.8.1997.

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2.2.
The objectives of the proposal are to improve and
expedite the transmission of judicial and extrajudicial docu-
ments 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.
Convention, while introducing the following innovations:

is consistent with the 1965 Hague

The proposal

— it makes provision for establishing more direct channels
between the persons or authorities responsible for trans-
mitting 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 Com-

mission 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
individually or acting in concert, are
Member States,
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 reser-
vations, but only for transitional or specific arrangements,

which must be notified to the Commission and published
in the Official Journal;

the Commission will

— formal provisions: as soon as the directive comes into
force,
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.

The Committee is aware of the mutual enrichment
3.1.2.
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 insti-
tutions 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 tran-
sitional 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
the acts adopted by the
non-uniform implementation of
representatives of the Member State governments in this field
prior to this Treaty being concluded.

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4. Specific comments

The proposal’s objectives will be of benefit

4.1.1.
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 national-
ity. 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
that
account.
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.

It should be pointed out,

in this regard,

in the
The proposal should explicitly provide that,
4.2.
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 impor-
tance of redress procedures that are rapid and easily accessible,
and calls upon the Commission to flesh out its proposals in
this direction (1). 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 appropri-
ate 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 trans-
mission 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 (2) 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.

Article 15(1) employs the concept of a ‘person interest-
4.8.
ed 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.

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

(2) See the ESC Opinion on the Green Paper on public sector

information. OJ C 169, 16.6.1999, p. 30.

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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.

Articles 15(2) and 19(2) contain an unusual statement
4.9.
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.

The claim in Article 20(1) of prevalence, in matters
4.10.
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

Brussels, 21 October 1999.

in relations between Member States, while complying with
agreements between the Member States and third countries (1).

The Committee advocates the establishment of a
4.11.
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, particu-
larly at local and regional level.

(1) 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.).

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI