Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of  29 May 2000  on service in the Member States of judicial and extrajudicial documents in civil or commercial matters  (COM(2005) 305 final — 2005/0126 (COD))
Date: 2006-02-14
Institutions: European Economic and Social Committee
Subjects: administrative measure, civil law, commercial law, judicial cooperation in criminal matters in the EU, judicial proceedings, provision of documents

11.4.2006

EN

Official Journal of the European Union

C 88/7

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the
European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of 29
May 2000 on service in the Member States of judicial and extrajudicial documents in civil or
commercial matters

(COM(2005) 305 final — 2005/0126 (COD))

(2006/C 88/02)

On 1 September 2005, the Council decided to consult the European Economic and Social Committee,
under Article 95 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 23 January 2006. The rapporteur was
Ms Sánchez Miguel.

At its 424th plenary session, held on 14 and 15 February 2006 (meeting of 14 February), the European
Economic and Social Committee adopted the following opinion by 134 votes with two abstentions

1. Conclusions

1.1
The EESC congratulates the Commission on the content
of the proposed reform, which clarifies the Regulation — a
Regulation that has such a key role in making the area of
freedom, security and justice a reality in the EU — and will
make it easier to comply with. Some of the new points create a
degree of confusion, however, as to how its content should be
interpreted,
in particular Article 8(3), which establishes an
exception for calculating deadlines when the addressee refuses
to accept a document on the grounds that he or she does not
know the language in which it is drawn up, to protect the
applicant in line with national provisions.

1.2
Article 14, where it refers to arrangements equivalent to
acknowledgement of receipt, should also provide further details
of the other arrangements for proof of receipt applying to
service or transmission effected by the postal services.

Both of these issues would need to be clarified and most
1.3
importantly, the different language versions would need to be
checked, because there are a number of discrepancies between
them. This problem must be solved before the Regulation is
published, given that it will be implemented by each Member
State in line with its own language version.

1.4
The EESC wishes to express its concern at the lack of
consideration the Commission gives to the Regulation's imple-
mentation in the new Member States, despite having adapted
the annexes to accommodate this new situation.

1.5
In any event, the EESC wishes to state that the proce-
dure adopted in the reform is the right one, because it takes
account of all parties concerned and, above all, because it has
used one of the instruments created for this purpose — the
European Judicial Network — which enables account to be
taken of the shortcomings that have been identified in the
implementation of both procedures.

2. Introduction

1348/2000 (1) establishing that, once the Regulation's applica-
tion in the indicated period has been evaluated, it will, by no
later than 1 June 2004, adapt the content of its regulations to
reflect the evolution of notification systems. Nevertheless, the
proposed amendment goes beyond a simple revision of the
Regulation's form, because it fits into the process of legislative
simplification started by the EU, and because it takes account
of the large volume of legislation proposed during this period,
in order to comply with the Tampere Council resolution,
which is to create an area of freedom, security and justice that
guarantees the free movement of persons within the EU.

2.2
This Regulation has an extremely important role to play
in the proper functioning of the internal market. Cross-border
transactions and trade and especially new trading systems,
which rely on the new technologies, require a regulation that
establishes the procedure for the service and transmission of
judicial and extrajudicial documents between Member States. It
should be emphasised in this context that the EESC has already
stated its view (2)
instrument governing this
procedure should be a regulation and not a directive, since the
stated aim is to ensure total harmonisation.

the legal

that

3. Content of the reform

reform seeks

As part of the process of simplification that the proposal
3.1
for
included
improving legal certainty for both the applicant and the
addressee, because the aim is to provide a fundamental prin-
ciple that will uphold confidence in the internal market.

amendments are

to achieve,

Firstly, clear rules are established for calculating periods
3.2
(Article 7(2)), thus replacing earlier provisions with a time limit
of one month, starting from receipt of the document and, only
in relations between the administrative authorities of each
State, will it be the relevant national legislation that applies in
each case (Article 9(1) and (2)).

2.1
The European Commission has drawn up this proposal
in line with the provisions of Article 24 of Regulation (EC)

(1) OJ L 160 of 30.6.2000.
(2) OJ C 368 of 20.12.1999 (point 3.2).

C 88/8

EN

Official Journal of the European Union

11.4.2006

3.3
The regulation clarifies refusal to accept a document if it
is in a language not understood by the addressee, and considers
the option of having the document
translated into in a
language which the addressee does know, with the date of the
translation being the start date of the period set (Article 8.1)).
Nevertheless, the new paragraph 3 provides for an exception to
cases in which national
legislation lays down specific time
limits, in order to preserve the rights of the applicant. In this
case the date will be the date of service of the initial document.

3.4
Also important is the amendment proposed on the costs
of service or transmission (Article 11(2)), which determines
that each Member State will set a fixed fee laid down in
advance.

3.5 With regard to service or transmission by postal services
(Article 14), Member States are given the option of requiring
proof, as constituted by acknowledgement of receipt or ‘equiva-
lent’, without this affecting the right of persons interested in
judicial proceedings to serve or transmit judicial documents
through the intermediary of judicial officers, officials or other
competent persons in the Member State addressed (Article 15).

4. Comments on the proposal for amendment

the same time guarantees

4.1
The EESC welcomes any proposal for a change to legis-
lation in line with the principle of simplification (3) and which
at
legal certainty in the area
concerned. In this case, it points out that the Commission has
fulfilled its duty of drawing up the report provided for in
Article 24 of the Regulation itself and that, furthermore, in the
meetings of the European Judicial Network (4), experiences of
the Regulation's application have been studied and discussed
information and studies had been
and, once the relevant
collected,
that has
provided the basis for the proposal now under consideration.

the Commission adopted the report (5)

4.2
In this context, it must be acknowledged that bringing
the calculation of time limits for the service and transmission
of documents into the ambit of Community legislation repre-
sents a major step towards simplification. This is because
previously, differing national provisions applied, which delayed

Brussels, 14 February 2006.

proceedings. This new approach also gives the parties involved
an understanding of the procedures without having to find out
about those in force in each Member State. Nevertheless, it is
law applies to relations between
acknowledged that national
States, as set out
this
affecting the individuals concerned.

in the amended Article 9, without

As regards the proposed new wording for Article 8 (6),
4.3
on the addressee's ‘refusal to accept a document’ if it is in a
language that the addressee does not understand, and the obli-
gation to have the document translated, this appears to be
more concerned than the current wording about protecting the
interests of the parties involved, in particular because it does
not reduce the time limits set and instead the period is deemed
to start only from the date of translation. Nevertheless, the
wording of the new Article 8(3) poses a serious problem of
implementation by Member States with regard to the above, by
providing for an exception that would allow the use of national
provisions for the calculation of deadlines, which could result
in the document's recipient being unable to defend himself or
herself.

4.4
The EESC also welcomes the inclusion of a fixed fee laid
down in advance by each Member State because there is often
distrust between the parties concerned regarding the lack of
clarity in the costs. This arrangement will improve the transpar-
ency of the procedure.

In line with the EESC opinion (7),

4.5
the committee
considers that there is a need to examine the use of technical
transmission accepted by
innovations and new means of
receiving agencies, such as e-mail or the Internet,
for the
service and transmission of judicial and extrajudicial documents
in civil and commercial matters, provided that legal certainty is
guaranteed for the parties concerned.

4.6
Another issue that should be considered is the wording
of the forms set out in the annexes, which have been drawn up
with the judicial services of the Member States, in other words,
the agencies transmitting and receiving the documents,
in
mind. The EESC considers that consideration should also be
given to the interests of the applicant and the addressee, by
simplifying the wording and making it comprehensible to the
parties concerned in judicial and extrajudicial proceedings.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(3) OJ C 24 of 31.1.2006.
(4) European Judicial Network in civil and commercial matters. OJ C

139 of 11.5.2001.

(5) Report on the application of Council Regulation (EC) 1348/2000. 1

October 2004 - COM(2004) 603 final.

(6) The new proposal for Article 8, concerning refusal to accept a docu-
ment on the grounds that it is not in an official language of the
Member State addressed, is in line with the case-law of the ECJ; see
the recent judgment C-443/03 of 8.3.2005.

(7) OJ C 368 of 20.12.1999.