REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents)
Date: 2013-12-04
Institutions: European Commission
Subjects: EU Member State, access to the courts, civil law, commercial law, cross-border cooperation, data transmission, judicial cooperation, judicial proceedings, provision of documents













EUR-Lex - 52013DC0858 - EN











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52013DC0858

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) /* COM/2013/0858 final */









REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE
on the application of Regulation (EC) No
1393/2007 of the European Parliament and of the Council on the service in the
Member States of judicial and extrajudicial documents in civil or commercial
matters (service of documents)
1.           Introduction
Co-operation between the judicial
authorities of the Member States of the European Union is a keystone for a
European area of freedom, security and justice as referred to in Article 3(2) of
the Treaty on the European Union. Such cooperation is particularly necessary in
order to ensure an efficient transmission of judicial and extrajudicial documents
for purposes of service between the Member States. Service of documents is part
of each and every judicial case. A speedy and secure transmission of documents
is thus crucial for the good administration of justice and the protection of
the rights of parties, in particular of defendants, in legal proceedings. 
Prior to any Union action on this matter,
the cross-border service of documents between Member States was mainly governed
by the 1965 Hague Convention on the service of documents[1]. 
On 29 May 2000, the European Union adopted Regulation
(EC) No 1348/2000[2]
laying down procedural rules to facilitate the cross-border transmission of documents
("the 2000 Regulation"). The Regulation applied to all Member States
of the European Union except Denmark. However, its application was extended to Denmark by way of a parallel agreement concluded between the Union and Denmark[3]. 
On 1 October 2004, the European Commission
adopted a report[4]
on the application of the 2000 Regulation. The report concluded that the
application of the Regulation had improved the transmission and service of
documents between Member States since its entry into application in 2001.
Nevertheless, the report also stated that the level of knowledge of those
involved in the application of the Regulation, in particular local bodies, needed
to be improved and that an adaptation of certain provisions of the Regulation
could further improve and facilitate the application of the Regulation. Thus,
the Commission proposed an amendment in 2005[5].
As of 13 November 2008, the 2000 Regulation
was replaced by Regulation (EC) No 1393/2007[6]
of the European Parliament and the Council ("the 2007 Regulation" or
"the Regulation"). This Regulation equally applies to Denmark under the parallel agreement between the EU and Denmark.
The most important modifications introduced by
the 2007 Regulation are: 
·                        
a requirement for the receiving agency to take all
necessary steps to effect the service of the document as soon as possible, and
in any event within one month of receipt;
·                        
the creation of a new standard form to inform the
addressee about his right to refuse the document;
·                        
the introduction of a single fixed fee for the costs
of service, laid down by the Member States in advance; and
·                        
uniform conditions for service by post.
Article 24 of the 2007
Regulation stipulates that no later than 1 June 2011 and every five years
thereafter the Commission should review the application of the Regulation and propose amendments if necessary.
The Commission launched a study in 2011[7] in order to collect data and assess the
application of the Regulation (hereafter referred to
as the "study"). The study contains a legal analysis and an empirical
part based on a survey conducted among various groups of stakeholders from all
Member States[8].
The application of the
2007 Regulation was discussed at the meetings of the European Judicial Network
in Civil and Commercial Matters on 14 January 2008, 18 September 2008, 30 April
2009, 23 June 2010 and 9-10 February 2012. Furthermore, the Commission has taken into account citizen letters,
complaints, petitions and preliminary rulings by the
European Court of Justice concerning
the Regulation[9]. 
This Report presents
the Commission's first assessment of the application of the 2007 Regulation for
the period running from 2008 to 2012. 
2.           Main elements of the
Regulation
The Regulation applies in civil and
commercial matters where a judicial or extrajudicial document has to be transmitted
from one Member State to another for service there. It provides
for different methods of transmission between Member States, in particular
through transmitting and receiving agencies, by post, or by consular or
diplomatic channels, or also directly[10].
A special rule on determining the date of service protects the interests of
both the applicant and the addressee of the service. The addressee is further
protected by the rules on the use of languages of the documents to be served
and by the rules which courts need to respect when the defendant does not enter
an appearance. The service must not require the payment of costs or taxes in
the Member State addressed, except if there has been a particular method of
service or recourse to a judicial officer. In that case, the applicant bears
the cost of a single fixed fee.
Member States have the obligation to provide
the Commission with information necessary for the good functioning of the
Regulation. Each Member State has a central body[11] for supplying
information to the agencies, resolving any difficulties that may arise and
forwarding requests for service by the transmitting agency to the relevant
receiving agency.
3.           application of the
regulation
In general, it may be concluded that the
Regulation operates well and has reached its objective to increase legal
certainty in cross-border service of documents as well as speed and efficiency
in transmission between Member States.[12]
Nevertheless, some points merit attention in order to evaluate whether and how
the system of service between Member States may be further improved.
3.1.        Scope of the Regulation
The Regulation covers judicial or extrajudicial
documents that have to be transmitted from one Member State to another for
service there in civil and commercial matters. Several questions have been
raised with respect to the scope of the Regulation:
3.1.1.     Which documents may be
transmitted between Member States for purposes of service: the concept of
judicial or extrajudicial documents 
In Case C-14/08 (Roda
Golf), the European Court of Justice ruled that it is
not for the national law to determine which documents may be transmitted in
accordance with the Regulation, between Member States for purposes of service.
The question submitted to the Court concerned the
service of a notarial act in the absence of legal proceedings. The Court clarified
that the concept of ‘extrajudicial document’ within the meaning of Article
16 of the 2000 Regulation (which is the same as Article 16 of the 2007 Regulation)
is a Union concept which should be interpreted
autonomously. Taking into account the objectives of the Treaty and of
the Regulation, which aim at establishing a system for intra-Union service the
purpose of which is the proper functioning of the internal market, judicial
cooperation cannot be limited to legal proceedings alone but may also apply in
the absence of legal proceedings. As a result, the
Court held, the service of a notarial act in the absence of legal
proceedings falls within the scope of the Regulation. 
3.1.2.     When do judicial or
extrajudicial documents have to be transmitted from one Member State to another for purposes of service?
In Case C-325/11 (Alder),
another important question regarding the scope of the Regulation was referred
to the European Court of Justice. The question is whether it is for the national
law to determine in which situations a document must be
transmitted, in accordance with the Regulation, between Member States for
purposes of service. In this case, two citizens
residing in Germany brought proceedings against two citizens residing in Poland before the Polish courts. Polish procedural law requires foreign claimants to
designate a representative in Poland authorised to accept service of documents;
failure to do so results in the documents being placed in the case file, which
is deemed to constitute service. The claimants failed to designate a
representative and their claim was dismissed after the hearing, in which they did
not appear. The Court found that where the addressee of the document
resides in another Member State the service of a judicial document must
necessarily be effected in conformity with the requirements of the Regulation[13]. As a result, a system that requires a representative in
the forum Member State for purposes of serving judicial documents to parties residing
in other Member States does not comply with the Regulation. 
3.1.3.     Electronic service
Electronic service is an emerging method to serve documents within
Member States. In most systems where such method of service exists, citizens
(usually commercial or financial institutions) register with the courts, thus
permitting to be served directly by electronic means. Currently, the Regulation
does not mention electronic service. The question has been raised in certain
Member States whether foreign citizens could register into the national
electronic service system and whether a service effected on such foreigners
should be considered a cross-border service for purposes of the application of
the Regulation. The answer to this question has important consequences, such as
whether the right to refuse a document which is not written in one of the languages
foreseen in Article 8 of the Regulation applies. It should be considered whether
electronic service should be available at cross-border level and if and how the
Regulation should apply in such a case. The introduction of electronic service
as one of the methods foreseen in the Regulation may foster an effective use of
technology and could reduce the expense and delays of long distance litigation.
Several pilot projects are being carried out, such as the "E-justice
service of documents" project which is being co-funded by the Commission.
The aim of this project is to establish a dematerialized and secured exchange
of documents through an electronic platform between Ministries of Justice,
courts, judicial officers (bailiffs), and lawyers. The project is connected to
the e-Codex project with aims more generally to improve cross-border exchanges
of information in legal proceedings in a safe, accessible and sustainable way.
3.1.4.     The service of documents
and the abolition of exequatur
The gradual abolition
of exequatur raises the question on the need of a higher degree of
harmonisation concerning national civil procedural rules, in general, and
concerning rules on service of documents, in particular. The discussions
throughout the negotiations on the Commission's proposal for a Regulation on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters (Brussels I Recast)[14], the proposal for a
Regulation creating a European Account Preservation Order to facilitate
cross-border debt recovery in civil and commercial matters,[15] and the proposal for a
Regulation on mutual recognition of protection
measures in civil matters[16]
showed that the rules of the Member States differ
substantially on fundamental questions such as 
·                        
which documents are served on the parties in
legal proceedings: while documents introducing proceedings are generally served
in all Member States, there is wide variation on the service of judgments,
convocations for hearings, etc. Judgments, for instance, are served in some Member
States, sometimes even as a condition for enforceability of the judgment in the
forum State, while in other Member States judgments are not generally served but
are to be picked up from the court by the parties themselves;
·                        
in which circumstances documents are served: for
instance, in some Member States judgments are not served when the parties were
present or represented in the proceedings, in some Member States the judgment
is mandatorily served as the first step in the enforcement proceedings;
·                        
by whom documents are served: in some Member
States, service is generally the responsibility of the parties, while in other
Member States the court takes care of the service of documents. In several
Member States, the responsibilities vary depending on which type of document
needs to be served (document introducing proceedings, convocation for hearings,
judgment, etc.);
·                        
on whom documents are served: for instance, in
some Member States documents are served on the parties themselves while in
other Member States documents or certain types of documents may or even must be
served on their legal representative in the forum State;
·                        
on the legal consequences attached to a service
(e.g. starting the running of time limits, for instance for appeal, for
calculation of interest) or a lack of service (e.g. opening the recourse to
special remedies)
As a result of these
disparities, it is uncertain currently in which circumstances the protection
ensured by the Regulation actually applies. In particular, it is not sure that
foreign defendants will be protected, where appropriate, by the Regulation's
rules on the right to refuse to accept a document (Article 8), the date of
service (Article 9), and the rights of the defence in the event of default.
The question arises to
what extent such disparities between Member States' laws and the resulting lack
of legal certainty for citizens are appropriate in the context of judicial
cooperation in the European Union, particularly in the light of the abolition
of exequatur where the protection of the rights of the defense is a crucial
element to be safeguarded across borders. 
3.1.5.     Conclusions on the scope
The previous points
show that a satisfactory operation of the Regulation may require clarification regarding
the scope of the instrument at Union level. In addition, the legal uncertainty
resulting from the disparities in national procedural laws may need to be
addressed. This is particularly important in the light of the Regulation's
crucial role in the entire civil justice cooperation and the abolition of exequatur.
Today there is more experience through the years of applying common rules on
the transmission of documents in cross-border cases. It may be appropriate now to
consider the need to address this legal uncertainty, in particular by way of common minimum standards on which documents should be served on
foreign parties, on whom such service may take place, and at which moment in
time service should take place. In this way, a more uniform protection of
defendants across the Union would be ensured and would without any doubt
enhance legal certainty and the protection of the rights of the defence.
3.2.        Limitations to the scope
of the Regulation
3.2.1.     The non-application of the
Regulation where the address of the person to be served is not known
The Regulation does not apply where the
address of the person to be served with the document is not known. Problems have been reported in this context. Sometimes
documents have been transmitted with the expectation that the central bodies
established pursuant to Article 3 of the Regulation would assist in locating
the addressee. Alternatively, use has been made of Regulation (EC) No 1206/2001[17] ("the
Evidence Regulation") in order to find the address of the person to be
served. However, this latter method has been criticised for being cumbersome since
two different legal instruments have to be used for the sole purpose of service
of documents. In addition, it has been questioned whether the Evidence
Regulation is the appropriate instrument to find the address of a party, particularly
in the light of the scope of that Regulation and the requirement, pursuant to
Article 4(1)(b) of the Evidence Regulation, to indicate the names and addresses
of the parties to the proceedings, which seems to pre-suppose that these
addresses are known. 
The question how and by
which means to find the address of the defendant is important, particularly in
the light of the application of several instruments of civil justice, such as
Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters (see Article 26 of that
Regulation)[18]
and Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition
and enforcement of judgments in matrimonial matters and the matters of parental
responsibility (see Article 18 of that Regulation). These instruments impose a
stay of proceedings so long as it is not shown that the defendant has been able
to receive the document instituting proceedings or an equivalent document in
sufficient time to enable him to arrange for his defence, or that all
necessary steps have been taken to this end. The Court of Justice ruled,
with respect to Article 26(2) of Regulation (EC) No 44/2001, that a court in
such a situation may reasonably continue proceedings,
only if it is satisfied that all investigations required by the principles of
diligence and good faith have been undertaken to trace the defendant (see Case
C-327/10 Hypoteční banka v. Lindner, paragraph 52 and C-292/10 Cornelius
de Visser, paragraph 55). In this respect, it is important to know what may
be expected as "necessary steps" to be undertaken by whom (by the
court seized, by the parties, by the Central Body or receiving agency in the
State addressed). 
In the light of these
difficulties, it may be appropriate to consider how to remedy the very basic
and practical difficulty of finding the address of the person to be served and
to clarify the respective obligations of the authorities involved in the
service. It may be considered whether situations where the defendant's address
is unknown could not be brought under the scope of the Regulation with certain
obligations to carry out a search for the address of the defendant. At the very
least it may be clarified to what extent receiving
agencies should carry out a search for the address of the defendant if the
address is known but does not appear to be correct.
3.2.2.     Service
of documents on States
The Regulation does not extend, in particular,
to revenue, customs or administrative matters or to liability of the State for
actions or omissions in the exercise of state authority (acta iure imperii).
In some Member States, questions have arisen regarding the service of documents
on States. Article 1 excludes indeed the above-mentioned matters from the scope
of the Regulation. A contrario and in accordance with the guidelines
given by the European Court of Justice on the interpretation of the term
"civil and commercial matters" in disputes between a public authority and a private person, such disputes may be covered by the Regulation to the extent that
they concern civil claims and the State concerned acted as a private person (acta iure gestionis). It is to be noted
that even if the addressee of a judicial or extrajudicial document in a civil
or commercial matter is a State or a State entity, all methods of transmission
provided for by the Regulation may be used for purposes of serving documents
abroad.
3.3.        Speed
of transmission and service 
When the service of documents is effected via
transmitting and receiving agencies, the period of time for the execution of
the request is one month[19]. However, no deadlines are set for the transmission of documents by
post, direct service or through diplomatic channels. 
It appears from the study that the 2007 Regulation
has moderately speeded up the service of documents between Member States
compared with the 2000 Regulation (see Annex 1). This result may be considered
satisfactory, particularly when in parallel the number of requests for
cross-border service has grown. For example, in Germany, the number increased
from 14,463 cases in 2009 to 16,329 cases in 2010; in the UK, the number increased from 9,852 cases in 2009 to 10,395 cases in 2010. Nevertheless,
the documents have been served faster than earlier. It may therefore be concluded
that the 2007 Regulation has achieved its objective to further speed up the
service between Member States. 
Nevertheless, the empirical data show that it
still requires relatively long delays to serve abroad. Particularly when
documents are transmitted through the transmitting and receiving agencies, the
time required for these agencies to act, calculated together, still amounts in
most cases to several months. These delays may be explained by several factors.
First of all, some time may be required to forward a wrongly addressed request
to the competent receiving agency. More importantly, it appears that most delays
result from the lack of linguistic skills of the agencies (the agencies are not
mastering the languages which their Member States have indicated as acceptable
for receiving the documents) and/or the lack of sufficient knowledge on their
part of the applicable rules (see point 3.3 below). Some delays have equally
been reported due to an insufficient equipment of central bodies (see point 3.4
below). However, the efficient conduct of legal proceedings in an integrated Union requires swift service of documents. It should therefore be explored how the time for
service could be further reduced, in particular by exploring the use of
electronic means of transmission and service.
3.4.        Transmitting
and receiving agencies 
The main method of transmission of documents
pursuant to the Regulation is through transmitting and receiving agencies.[20]
In general, the agencies are reported to
operate satisfactorily under the Regulation except for the lack of linguistic
skills and/or the lack of knowledge on their part of the rules of the
Regulation[21].
For example, receiving agencies have been reported to refuse requests in other
language(s) than the official language of the Member State concerned even
though the latter has accepted other languages pursuant to Article 4(3) of the
Regulation. Also, it seems that receiving
agencies have occasionally refused to deliver the document to be served on the
ground that it is not translated into their official language, which may be
contrary to Article 8(1) of the Regulation. 
3.5.        Central
bodies         
Central bodies have a supportive, yet
important, function as they are responsible for supplying information to the
transmitting agencies, seeking solutions to any difficulties which may arise
and forwarding, in exceptional cases, at the request of a transmitting agency,
a request for service to the competent receiving agency. 
In general, it appears that central bodies are
operating satisfactorily under the Regulation: 49.6% of the interviewees of the
study held the practical functioning of the central bodies as very effective or
rather effective, while only 18% considered their work rather ineffective or
not effective.[22]
Nevertheless, some problems have been raised in the study. 
First of all, it is reported that in some
Member States, central bodies are not duly equipped from a technical point of
view (e.g. no computerization). Such a situation may
have negative consequences on the speed and certainty of the transmission. 
Secondly, the study has noted the
expectations of some transmitting agencies that central bodies provide assistance
in locating addressees whose address is not known. It may not be entirely clear
from the Regulation to what extent central bodies must lend their assistance in
this respect. When dealing with the problem of finding the address of the
person to be served, the role of central bodies should be considered and
clarified so as to ensure uniform application and expectations under the
Regulation. 
Finally, it appears that the information on
central bodies provided in the Judicial Atlas[23]
by the Member States differs from one Member State to another. In some cases, the
information is more detailed than in others. Article 23(1) in combination with
Article 3 of the Regulation, does not provide clear guidance as to which
information needs to be communicated by Member States. It may be appropriate to
streamline the requirements concerning the information available so that it is
most helpful for the users of the system.
3.6.        Language of the request
for service
All Member States except Luxembourg accept English as a language for the receipt of requests to serve documents (see
Annex 2). There thus appears to be one language used between almost all Member
States. In addition, it appears that all Member States, except Ireland, Luxembourg and Malta, accept requests in at least one other language in addition to their
official language(s). More than half of the Member States accept requests in
three, four or even five (France) languages. 
3.7.        Language of the documents
to be served - right to refuse to accept a document
Article 8 of the Regulation aims to
guarantee the procedural rights of the addressee, who is allowed to refuse the
document if it is not drafted in an official language of the place where
service is effected or in a language which the addressee understands. In
connection with the application of this article several problems have been
brought to the attention of the Commission[24]. 
In Case C-14/07 (Weiss) the European Court of Justice examined some
practical aspects of the right of refusal. In the case at hand, the addressee
refused to accept service on the basis that only the application was translated
into the language prescribed in Article 8 of the Regulation, but not the
annexes attached to it. The Court held that an addressee of a document
instituting proceedings does not have the right to refuse to accept that
document, if the non-translated annexes of that document consist of documentary
evidence which has a purely evidential function and is not necessary for
understanding the subject-matter of the claim and the cause of action. In the
same case, the Court was asked to rule on the role of a contractual clause between
the addressee and the applicant in which the addressee agreed that
correspondence between the parties was to be carried out in the language of the
  Member State of transmission. The Court held that such a clause does not give
rise to a presumption of knowledge of that language on the part of the
addressee, but that it nevertheless constitutes evidence which the court may
take into account in determining whether that addressee understands the
language of the Member State of transmission. 
Furthermore, problems have
been reported regarding the use of the standard forms in the context of the
exercise of the right of refusal. 
Firstly, the text of Article 8 is unclear
as to the need for the provision of information in the standard form (Annex II
to the Regulation) in cases where the document to be served is in the language
of the Member State addressed and where, therefore, the addressee cannot
validly refuse service (Article 8(1)(b)). In practical terms, attaching the
standard form in such circumstances might mislead the addressees into thinking
that they do have the right to refuse. 
Secondly, the practical question has been
raised whether Annex II to the Regulation should be delivered in full,
containing the text in all official languages of the Union, to the defendant or
whether it may be reduced containing only the text in the language of the Member State addressed. The latter solution may save financial and environmental costs.
Thirdly, the question has been raised as to
what are the legal consequences when the receiving agency fails to provide
information on the right to refuse (fails to attach Annex II). It is not clear
according to which laws the assessment of the effects of such service (i.e. its
validity) should be appreciated.  From the point of legal certainty of the
addressee, this situation is unsatisfactory as his protection may differ from
one Member State to another. A uniform solution may be desirable.
Fourthly, problems have
been reported in determining whether or not an addressee validly refused to
accept the document served. Article 8 and Annex II to the Regulation prescribe
that the addressee may refuse to accept the document to
be served either at the time of service (directly with the person serving the
document) or by returning the document to the receiving agency. At the
same time, Annex II suggests that the form itself should be returned with the
document to be served (cfr. the declaration of the addressee). There is thus a
degree of ambiguity how to validly exercise the right of refusal. In some
instances, addressees have not exercised their right of refusal at the time of
service but have returned the Annex II properly filled out (declaring the
refusal) without however returning the document to be served itself. The
question was raised whether or not this could be considered a valid refusal. A
literal reading of the text of Article 8 suggests that the refusal would not be
valid. It is questionable whether this is a satisfactory interpretation: if
simply returning the document constitutes a valid refusal, a fortiori an
express declaration in the form, even without the document itself, should be
valid. It may be appropriate to clarify this matter in the Regulation. 
Finally, the Regulation
prescribes the use of a refusal form but does not prescribe the way to send out
this form. The refusal may thus be effected, for instance, by handing over the
form to the bailiff at the time of attempted service or by way of a simple
letter. The question arises whether it might be appropriate to impose some
formal requirements to enhance legal certainty as to an effective refusal to
accept the document to be served.  
3.8.        Date of Service
In general, it appears that the application of
Article 9 (the determination of the date of service) has been satisfactory and
that it has met the objective of protecting the legitimate expectations and
rights of both the applicant and the addressee[25].
However, several issues have been raised: One question is the determination of
the date of service according to the law of the Member State addressed (Article
9(1)) in cases where service is requested by a
particular method under Article 7(1) and such method is not known in the Member
State addressed even if it is not incompatible with its law. Obviously, in such
cases the law of the Member State addressed might not necessarily provide for
the date of service. The question has arisen whether Article 9(1) would permit
the conclusion, in such a situation, that the date of service is governed by
the law of the requesting Member State where the particular method exists. 
Furthermore, Recital 15 raises confusion about
the application of Article 9: it suggests that Article 9 does not apply in all
the Member States and it requires Member States to notify the Commission on the
(non-)application of the rule in the national laws. It is obvious that
according to the text of the Regulation, Article 9 does apply in all Member
States and it should, in the interest of the parties involved, apply
everywhere. It is not necessary for national law to have a "double date
system" as recital 15 suggests. Article 9 applies directly and only
determines which law applies to the determination of the date from the
perspective of either the applicant or the defendant.  It would seem
appropriate to clarify recital 15 in this respect.
3.9.        Cost of Service
As a general rule, service of documents coming
from a Member State does not give rise to payment of any taxes or charges for
services rendered by the Member State addressed. However, when the service is
performed either by recourse to a judicial officer or to a person competent
under the law of the Member State addressed or when the use of a particular
method of service is requested, the applicant has to bear the costs thereof. In
order to facilitate access to justice, such costs should correspond to a single
fixed fee.  
In principle, the setting of a single fixed
fee which is published on the Judicial Atlas has substantially improved the
transparency of the costs related to cross-border service. Nevertheless, the
communications by some Member States are not sufficiently clear[26], others provide that
no fee applies although this does not seem to be the case in practice[27]. 
Some practical problems have been reported in
relation to the payment of costs.  In particular, it has been suggested that it
would be helpful to include details of the bank account numbers of the
agencies, including IBAN and BIC codes as well as VAT numbers insofar as
relevant in the information provided on the transmitting and receiving agencies
on the Judicial Atlas.
Furthermore, it has been reported that serving
authorities in some Member States charge various additional costs in addition to
the fixed fees. This does not seem compatible with the Regulation and requesting
authorities are uncertain as to whether only the fixed fee should be paid or
whether any additional costs may be charged. It may be appropriate to clarify
this in the Regulation.
3.10.      Service by Post
Service of documents by post provided for in Article 14
of the Regulation is one of the various ways to serve documents. Each Member State may effect service of documents directly by post on persons living in another Member State. Such service by post takes place by way of a registered letter with
acknowledgment of receipt or equivalent. The Commission has realized that at
least one Member State, led by the literal interpretation of the wording of the
Article, restricts the application of this method of service to those cases
where the service of documents lies with the responsibility of the State, i.e.
when the courts are entrusted by operation of law with the task of serving
documents.[28]
This narrow interpretation implies that when the parties are responsible for
taking care of the service, they may not have recourse to this way of cross-border
transmission of document, and may not ask the competent body or person under
the law of the Member State of their residence to serve the document on the
addressee abroad in accordance with Article 14 of the Regulation. In the
Commission's assessment the language of the Article deserves some improvement
so that this duplicity in interpretation may be eliminated and the use of
postal service in cross-border cases is made accessible generally to everyone. 
The evaluation study has shown that due to its
low cost and expeditiousness this method of delivery is used frequently and is even
preferred to the method of transmission through transmitting and receiving
agencies.[29]
Still, practical difficulties do exist which affect negatively the efficiency
of this way of service.   
One problem lies in the diverging solutions
which national rules of civil procedure foresee when determining the circle
of persons on whom a postal delivery may be effected. In certain Member
States, certain civil procedures require delivery on the addressee in
personam. In other Member States, there is  room for so-called 'substituted
service', where the document is not handed to the addressee personally, but to
another person at the same address or the document is placed in the mailbox or
is deposited at a specified place for a certain period of time for the purpose
of collection by the addressee. Cases of 'substituted service' result in valid
service of the document under the law of the requested Member State but they may not comply with the requirements imposed by the civil procedural law of the
requesting Member State. Since the rules on postal service differ significantly
in the Member States, this problem seriously hinders an efficient use of this
method of service.  
Another problem in connection with postal
service is the legal framework postal operators are subject to when they
perform registered delivery of a document to the addressee. Public or private postal
services usually use their own "rules" (e.g. rules of Universal Postal
Union or rules of companies offering specialised private postal services) to
deliver registered letters with acknowledgment of receipt. In addition, in several
Member States postal operators have to comply with additional statutory rules
in cases where the document to be served constitutes  a judicial or another
official document. For instance, in such cases postal operators are obliged to
use specific certificates of service or they have to perform several
consecutive attempts of delivery. While the application of such rules does not
pose problems when the documents to be served come from national courts or
authorities with which postal operators are familiar, the rules may not be
applied when the postal operator does not recognise the judicial nature of a
foreign document. In some cases even the statutory rules only apply to
documents delivered by national courts or authorities and not to documents
delivered by foreign courts or authorities. As a result, the service may in the
end be invalid under either the law of the Member State of origin or under the
law of the requested Member State or even, if the operator did not recognise
the judicial nature of the document to be served, under both. 
In addition, there seems to be more
generally a problem in practice with acknowledgments of receipt which
are filled in improperly or incompletely, because they are not able to provide
appropriate evidence on the relevant facts of the performed or attempted
service.[30]
Courts in the requesting Member States often are unable to determine from the
return receipt to whom the delivery was performed or when. 
These practical difficulties show that even
if, according to the case law of the Court of Justice (cfr. Case C-473/04 Plumex),
all methods of transmission provided for in the Regulation are considered equal;
this may not be the case in practice. In order to ensure legal certainty with
respect to postal service, and thus to promote this means of service which is
usually less costly than other means of service, it should be made possible to
determine precisely to whom the document was delivered and in which
circumstances service was performed. One possible solution in this respect
might be the introduction of a standard international
return receipt form to be used by the postal operators. In addition, it may be needed
to ensure a higher degree of convergence between rules on 'substituted service'
for cases of cross-border postal service within the Member States. 
3.11.      Direct Service 
The Regulation establishes a possibility to
use direct service of documents as a method of transmission (Article 15). If
permitted under the law of the Member State where the service takes place, a
party to proceedings may effect service directly through the authorised persons
of that Member State.
There is no general acceptance of this
mechanism of service of documents. The situation is currently as follows. Direct
service
·                        
is possible in Belgium, Denmark, Greece, France, Italy, Cyprus, Malta, the Netherlands, Portugal, Finland, Sweden (in principle), United Kingdom (Scotland and Gibraltar). 
·                        
is not possible in: Bulgaria, Czech Republic, Estonia, Spain, Ireland, Latvia, Lithuania, Hungary, Austria, Poland, Romania, Slovenia, Slovakia, United Kingdom (England, Wales, and Northern Ireland). 
·                        
In Germany, the acceptance of direct service
depends on the nature of the documents to be served. Luxembourg allows for
direct service on the basis of reciprocity. 
This method of transmission of documents is
successful particularly in Member States where bailiffs carry out the service
of documents, e.g France, Cyprus, Greece or Belgium. There seems more
hesitation to use this method in other Member States due to an uncertainty on
who are the judicial officers, officials or other competent persons referred to
in Article 15 of the Regulation and on the conditions under which service will
take place in the Member State addressed. The contact
details of persons authorized to perform direct service are not listed on the
Judicial Atlas and it is not sure to what extent these persons are different
from the receiving agencies. In order to improve this method of service and
make it acceptable to all Member States, it should be considered to increase
transparency on who effects such direct service and whether any minimum standards
should be set (as in the case of postal service).
3.12.      Defendant
not entering an appearance
The abolition of exequatur with the aim of
achieving a genuine free circulation of judgments within the Union has deepened
the European integration in the area of justice. It would be further beneficial
to look for certain harmonization of the situations where courts will give
judgment even if no certificate of service or delivery has been received
(Article 19(2)) and of the time limits for application by defendants to be
relieved from the effects of the expiry of the time for appeal (Article 19(4)).
Article 19 currently allows Member States to make declarations in this respect,
which does not ensure a uniform application of the Regulation on the crucial
point of the protection of the rights of the defence.  
Furthermore, in order to avoid any confusion
on the identity of the documents referred to in Article 19, it may be
appropriate to align the latter's wording with the wordings used in other
instruments of civil justice. In particular, Article 19 refers to a “writ of
summons or an equivalent document”, whereas other instruments (e.g. Article 26
of Regulation (EC) no 44/2001)[31] refer to a “document instituting the proceedings or an equivalent
document”. 
4.           International Framework
on Service of Documents
4.1.        Parallel Agreement with Denmark 
During the reporting period, the Council adopted in 2009 a decision providing
for a procedure to implement Article 5(2) of the Agreement between the European
Community and the Kingdom of Denmark on the service of judicial and
extrajudicial documents in civil or commercial matters[32]. This procedure prescribes
how the coordination between Denmark and the Union should take place in case of
negotiations on international agreements which may affect or alter the scope of
the Regulation.
4.2.        1965 Hague Convention on
the Service of Judicial and Extrajudicial Documents
The 1965 Hague
Convention on the Service of Judicial and Extrajudicial Documents is a
multilateral treaty which allows service of judicial documents from one
signatory State to another without the use of consular and diplomatic channels.
All Member States, except Austria and Malta, are parties to this convention. The Hague Convention falls
within the exclusive external competence of the Union following the adoption of
the 2000 and 2007 Regulations.
Given that it would be in the interest of
the Union that all Member States apply the Hague Convention, it is necessary to
authorise Austria and Malta to accede to the Convention in the interest of the Union. The Union cannot accede to the Convention itself since the Convention only foresees
the accession by States, not by regional economic integration organisations
such as the EU. The accession of Austria and Malta would enable uniform rules
on service to apply in disputes involving third State defendants before the
courts of the Member States.  Such accession would implement the Union's political
commitment, made at the time of accession of the Union to the Hague Conference
on Private International Law in 2007, to promote the Hague instruments. The
Commission proposed to authorize Malta and Austria to accede to the Convention
on 6 June 2013[33]. 

4.3.        Relations with Norway, Switzerland and Iceland (Lugano States)
As regards the States which are contracting
parties to the 2007 Lugano Convention, namely Norway, Switzerland and Iceland, the
Commission has recommended, in 2012, to the Council to authorise negotiations
for the conclusion of an agreement with these States, among others, on the
service of documents. The agreement would strengthen the existing level of
judicial cooperation by speeding and simplifying the service of documents
between the EU Member States and these States. In addition, it would support
the effective functioning of the 2007 Lugano Convention where service of
documents is an important element in protecting the rights of the defendant in
the event of default and in the recognition and enforcement of judgments.
5.           Conclusion
The Regulation has been applied in general satisfactorily
by the Member States’ authorities. Nevertheless, the increasing judicial
integration of Member States has brought to light the limits of the current
text of the Regulation. In the light of the role of the Regulation in the
entire framework of judicial cooperation in civil justice matters, particularly
in the light of the abolition of exequatur a deeper integration within the
Union, for instance by way of minimum standards on service, may be considered. Furthermore,
even if the delays for cross-border service have been progressively reduced, an
efficient conduct of judicial proceedings in Europe requires further progress
to be made.
This report will serve to encourage a broad
public debate on the role of the Service Regulation in the Union's civil
justice area and how in particular the service of documents may be further
improved.
Annex 1
Average time frame of completion of requests by transmitting and
receiving agencies comparing the situation under Regulation 1348/2000 and
Regulation 1393/2007[34]
 Member State || Agencies || Regulation 1348/2000 || Regulation 1393/2007 || Time of completion requests 
 AUSTRIA || Receiving || 1-3 months || 1-2 months || + 
 Transmitting || -1 month || -1 month || = 
 BELGIUM || Receiving || 1-3 months || 1-2 months || + 
 Transmitting || --- || --- ||   
 FINLAND || Receiving || 1-3 months || 1 month || + 
 Transmitting || 2-6 months || 1 month || + 
 FRANCE || Receiving || 1-2 months || 2-4 months || - 
 Transmitting || --- || 1 month ||   
 GERMANY || Receiving || 1-3 months || 1-2 months || + 
 Transmitting || 1-2 months || 1-2 months || = 
 GREECE || Receiving || 2-6 months || 3-4 months || + 
 Transmitting || -1 month || -1 month || = 
 IRELAND || Receiving || 2-3 months || 2-3 months || = 
 Transmitting || -1 month || -1 month || = 
 ITALY || Receiving || 2-3 months || 3-6 months || - 
 Transmitting || 2-3 months || 2-3 months || = 
 LUXEMBOURG || Receiving || 1-2 months || 1-2 months || = 
 Transmitting || --- || 1-2 months ||   
 PORTUGAL || Receiving || 1-6 months || 2-3 months || + 
 Transmitting || --- || 9 months || - 
 SPAIN || Receiving || 2-6 months || 3-5 months || = 
 Transmitting || 1-2 months || 1-4 months || - 
 SWEDEN || Receiving || 1-2 months || --- || = 
 Transmitting || -1 month || --- || = 
Annex 2
   || LANGUAGE NOTIFIED FOR RECEPTION OF REQUESTS 
   || EN || DE || FR || ES || IT || DU || BG || SK || CZ || FI || LT || LV || PL || PT || RO || SE || SL || DA || GR 
 AT || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 BE || x || x || x ||   ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 BG || x ||   || x ||   ||   ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 CY || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x 
 CZ || x || x ||   ||   ||   ||   ||   || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 DK || x ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   
 ES || x ||   || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   
 FI || x ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   || x ||   ||   ||   
 FR || x || x || x || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 DE || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 EL || x ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x 
 HU || x || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 IE[35] || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 IT || x ||   || x ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 LV || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   ||   ||   
 LT || x ||   || x ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   ||   ||   ||   
 LU ||   || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 MT || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 NL || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 PL || x || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   ||   
 PT || x ||   ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   
 RO || x ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   
 SK || x ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 SI || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   
 SE || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   || x ||   ||   ||   
 UK || x ||   || x ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
[1]               Convention of 15 November 1965 on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=17
[2]               Council Regulation (EC) No 1348/2000 on the service
in the Member States of judicial and extrajudicial documents in civil or
commercial matters OJ L 160, 30.6.2000, p. 37–52, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000R1348:EN:NOT
[3]               Agreement between the European Community and the
Kingdom of Denmark on the service of judicial and extrajudicial documents in
civil or commercial matters, OJ L 300/55, 17.11.2005, http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_300/l_30020051117en00550060.pdf
. This agreement entered into force on 1 July 2007
[4]               Report from the Commission to the Council, the
European Parliament and the European Economic and Social Committee on the
application of Council Regulation (EC) 1348/2000 on the service in the Member
States of Judicial and Extrajudicial documents in civil or commercial matters
{SEC(2004)1145, COM/2004/0603 final,
http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2004&nu_doc=603

[5]               Proposal for a Regulation of the European Parliament
and of the Council amending 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 (COM(2005) 305 final - 2005/0126 (COD)).
[6]               Regulation (EC) No 1393/2007 of the European
Parliament and of the Council of 13 November 2007 on the service in the
Member States of judicial and extrajudicial documents in civil or commercial
matters (service of documents), and repealing Council Regulation (EC)
No 1348/2000, OJ L 324, 10/12/2007 P. 0079 – 0120, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R1393:EN:HTML
.
[7]               MainStrat, Study on the
application on the application of Regulation (EC) No 1393/2007 on the service
of judicial and extrajudicial documents in civil and commercial matters, final
report July 2012.
[8]               In total 465 interviews
were conducted across the EU and 38 European experts presented views and recommendations.
[9]               In particular Case C-14/08 Roda Golf & Beach
Resort SL and Case C-325/11 Alder.
[10]             This means service through the competent persons of the
 Member State addressed when this is permitted under the law of that Member State.
[11]             A federal state, one with several legal systems or
which has autonomous territorial units may name more than one such agency or
central body.
[12]             78.5% of the interviewees of the evaluation study
shared the general perception that the entry into force of the Regulation has
improved and speeded up the service of documents among Member States. see
reference in footnote 7, p. 22. 
[13]             Judgment in Case C- 325/11 (Alder) of 19
December 2012.
[14]             COM(2010)0748.
[15]             COM(2011)445final.
[16]             COM(2011)276final. 
[17]             Regulation (EC) No 1206/2001 on cooperation between the
courts of the Member States in the taking of evidence in civil or commercial matters, OJ L174/1, 27.06.2001.
[18]             Regulation (EC) 44/2001 will be replaced by Regulation
(EC) No 1215/2012 as of 10 January 2015.
[19]             Article 7(2) of the Regulation.
[20]             The agencies are public officers, authorities or other
persons competent for the transmission of judicial documents to be served that
have been designated by the Member States.
[21]             29.9% of the interviewees of the evaluation study held
the lack of familiarity of the transmitting and receiving agencies with the
Regulation (which includes the phenomenon of using of incorrect languages) as a
problem with regard to the decentralized model of cooperation between the local
authorities. See reference in footnote 7, pp. 26 and 160. 
[22]             See reference in footnote 7, p.165
[23]             The European
Judicial Atlas in Civil Matters is an information website kept by the European
Commission. It is currently being migrated to the e-Justice Portal
[24]             Only 35.7% of the interviewees of the study found no
problem with the application of Article 8 of the Regulation, while 52.9%
indicated a problem. See reference in footnote 7, p. 172
[25]    The largest group (45.6%) of the interviewees of the evaluation
study considered that the application of the Article had not caused any
problem. See reference in footnote 7, p. 175
[26]   For instance, the Spanish notification provides that "the costs are as provided for by the applicable Spanish
legislation, which does not currently specify any particular amount".
[27]             A complaint was recently received regarding service in Ireland.
[28]    In France, this interpretation is confirmed by the circulaire
of the Minister of Justice No. 11-08 D3 of 10 November 2008 (see Bulletin
officiel du Ministère de la Justice of 28 February 2009).
[29]    48.6% of the interviewees of the study admitted a very frequent
use of postal service, 19.4% of which declared a preference to the traditional
method through transmitting and receiving agencies. See reference in footnote
7, p. 181.
[30]             In the evaluation study, the most common problems
stated by the respondents indicate that the acknowledgement of receipt is not
completely filled (41,1%) or not returned (40,6%) or the signature cannot be
read (34%): see reference in footnote 7, p. 182
[31]             Regulation (EC) 44/2001 will be replaced by Regulation
(EC) No 1215/2012 as of 10 January 2015.
[32]   Council Decision of 30 November 2009 (2009/943/EC) amending
Decision 2006/326/EC to provide for a procedure for the implementation of
Article 5(2) of the Agreement between the European Community and the Kingdom of
Denmark on the service of judicial and extrajudicial documents in civil or
commercial matters. 
[33]             COM(2013) 338final.
[34]             Based on the information provided by the agencies for
the study on the application of Regulation (EC) No
1393/2007 on the service of judicial and extrajudicial documents in civil and
commercial matters, final report May 2012.
[35]             Ireland also accepts the receipt of documents in
Gaelic.