COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council amending 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: 2018-05-31
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, access to the courts, civil law, commercial law, cross-border cooperation, data transmission, judicial cooperation, judicial cooperation in civil matters in the EU, provision of documents

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.5.2018  SWD(2018) 287 final  COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT  Accompanying the document Proposal for a  Regulation of the European Parliament and of the Council  amending 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(2018) 379 final}  - {SEC(2018) 272 final}  - {SWD(2018) 286 final}  
 
 
Table of contents 

1. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT ............................................. 6 

2.  PROBLEM DEFINITION .................................................................................................... 8 

2.1. 

The problem tree ..................................................................................................................... 8 

2.2.  What are the problem drivers? ................................................................................................ 11 
Ambiguities concerning the application of the Regulation ..................................................... 11 

2.2.1. 

Lack of clear information on the channels available for assistance on locating an 

2.2.1.1. 
addressee 11 
2.2.1.2.  Unclear definition of extra-judicial documents .................................................................. 12 
2.2.1.3.  Unclear elements in the right of the addressee to refuse the acceptance of the document 
on the basis of is inappropriate language ............................................................................................ 13 

Reliance on paper-based means of communication between transmitting and receiving 

Varying practices relating to costs of the serving documents (leading to both delays and 

Direct electronic service of a document from MS A to a recipient with physical residence in 

2.2.2. 
inequalities in the market) ....................................................................................................................... 14 
2.2.3. 
agencies  14 
2.2.4. 
MS B is not explicitly allowed or favoured ............................................................................................... 15 
2.2.5. 
of acknowledgement of receipt ............................................................................................................... 16 
Use of direct service (Article 15) is restricted or inaccessible ................................................ 17 
2.2.6. 
2.2.7. 
Use of fictitious or alternative methods of service at national law is preferred to the 
Regulation 17 
2.2.8. 
2.2.9. 
2.2.10. 

Insufficient protection of the defendant against the effects of default judgments ............... 18 
Information on the e-Justice portal not up-to-date or easy to find ....................................... 19 
Non-compliance of receiving agencies with the timeframes set out in the Regulation ......... 19 

Insufficient quality of service by post (Article 14) including delays and insufficient filling out 

2.3.  What are the problems for citizens, businesses and public administrations ............................. 20 
Delays, undue costs and confusion for citizens and business................................................. 20 
Undue costs for Member States (Public administrations and justice systems) ...................... 20 
Shortcomings in protection of procedural rights .................................................................... 20 
Legal uncertainty .................................................................................................................... 21 

2.3.1. 
2.3.2. 
2.3.3. 
2.3.4. 

2.4. 

Effects at the level of wider EU policy ...................................................................................... 21 
The smooth functioning of the Internal Market ..................................................................... 21 
Administration of justice ......................................................................................................... 22 
Fundamental rights ................................................................................................................. 22 

2.4.1. 
2.4.2. 
2.4.3. 

2.5. 

How will the problem evolve? ................................................................................................. 24 

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3.  WHY SHOULD THE EU ACT? ....................................................................................... 25 

3.1. 

Legal basis .............................................................................................................................. 25 

3.2. 

Subsidiarity ............................................................................................................................. 25 

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? ............................................................. 26 

4.1. 

General objectives .................................................................................................................. 29 

4.2. 

Specific objectives ................................................................................................................... 29 

4.3. 

Operational objectives ............................................................................................................ 29 

5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? .................................................. 30 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ....................................... 37 

7.  COMBINED EFFECTS OF THE PREFERRED OPTION AS A PACKAGE .............. 40 

7.1. 

Baseline scenario .................................................................................................................... 40 

7.2. 

Policy package ........................................................................................................................ 42 
Use of e-CODEX for communications and document exchanges between the designated 

7.2.1. 
agencies and central authorities .............................................................................................................. 42 
Facilitate the uptake of electronic means of serving documents ........................................... 43 
7.2.2. 
Address enquiries ................................................................................................................... 44 
7.2.3. 
Facilitating access to direct service ......................................................................................... 45 
7.2.4. 
Strengthening quality of postal service under Article 14 of the Regulation ........................... 46 
7.2.5. 
Summary of the results of the assessment ............................................................................. 47 
7.2.6. 

8.  CONCLUSIONS.................................................................................................................. 48 

8.1. 

REFIT (simplification and improved efficiency) ......................................................................... 48 

9.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .............. 53 

ANNEX 1: PROCEDURAL INFORMATION ........................................................................ 56 

ANNEX 2: STAKEHOLDER CONSULTATION INCLUDING THE OUTCOME OF THE 
PUBLIC CONSULTATION ON REGULATION (EC) NO 1393/2007  .......................... 60 

ANNEX 3: WHO IS AFFECTED AND HOW? ...................................................................... 71 

ANNEX 4: ANALYTICAL METHODS ................................................................................... 79 

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ANNEX 5: TABLES WITH ASSESSMENT OF OPTIONS FOR PROBLEMS ................. 88 

ANNEX 6: ASSESSMENT OF IMPACTS OF BASELINE SCENARIO ........................... 133 
Effectiveness ...................................................................................................................................... 133 

Further improving the efficiency and speed of judicial proceedings and thereby reducing the 
burden for citizens and businesses ................................................................................................. 134 
Improving access to justice and the protection of the procedural rights of parties to the proceedings
 ....................................................................................................................................................... 135 
Reducing legal uncertainty ............................................................................................................ 136 
Efficiency ............................................................................................................................................ 136 
Costs and benefits for public authorities ........................................................................................ 137 
Costs and benefits for citizens and businesses ............................................................................... 138 
Coherence .......................................................................................................................................... 139 
Impacts on fundamental rights ......................................................................................................... 140 
Environmental impacts ..................................................................................................................... 141 

ANNEX 7: ASSESSMENT OF THE IMPACTS OF THE POLICY PACKAGE .............. 144 
Effectiveness ...................................................................................................................................... 144 

Further improving the efficiency and speed of judicial proceedings and thereby reducing the 
burden for citizens and businesses ................................................................................................. 144 
Improving access to justice and the protection of the procedural rights of parties to the proceedings
 ....................................................................................................................................................... 150 
Reducing legal uncertainty ............................................................................................................ 151 
Efficiency ............................................................................................................................................ 152 
Costs and benefits for Member States’ public authorities (incl.   central bodies, courts) ............ 153 
Costs and benefits for legal professionals ...................................................................................... 160 
Costs and benefits for businesses as service providers .................................................................. 160 
Costs and benefits for citizens and businesses as parties to legal proceedings .............................. 162 
Coherence .......................................................................................................................................... 164 
Impacts on fundamental rights ......................................................................................................... 166 
Environmental impacts ..................................................................................................................... 167 

ANNEX 8: EVALUATION REPORT ................................................................................... 171 

1. 

INTRODUCTION ................................................................................................................. 4 

2.  BACKGROUND TO THE INTERVENTION .................................................................... 5 

2.1. 

Objectives and Intervention Logic of the Regulation ................................................................. 5 

2.2. 

Functioning of the Regulation .................................................................................................. 7 
Designation of specific bodies .................................................................................................. 9 
Transmission: means, acceptance, receipt and refusal of requests and documents ............... 9 
Costs of transmission .............................................................................................................. 10 
Protection of the defendant ................................................................................................... 10 

2.2.1. 
2.2.2. 
2.2.3. 
2.2.4. 

2.3. 

Baseline and points of comparison .......................................................................................... 11 

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3. 

IMPLEMENTATION / STATE OF PLAY ..................................................................... 12 

3.1. 

Description of the current situation ......................................................................................... 12 

4.  METHOD ............................................................................................................................ 13 

4.1. 

Short description of methodology ........................................................................................... 13 
The economic study ................................................................................................................ 13 
The On-line Public Consultation ............................................................................................. 14 
Preceding evaluative exercises ............................................................................................... 15 

4.1.1. 
4.1.2. 
4.1.3. 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS ........................ 16 

5.1. 

5.1.1. 

5.1.1.3. 

Effectiveness ........................................................................................................................... 16 
Achievement of the operational objectives ............................................................................ 19 
5.1.1.1.  Overall efficiency of service of documents under the Regulation ..................................... 20 
Preparation of the request and choosing the method of service ...................................... 21 
5.1.1.2. 
Identifying the types of documents to be served ............................................................................ 22 
Identifying the address of the person to be served ........................................................................ 22 
Assessing whether translation is necessary .................................................................................... 23 
Choosing the method of service ...................................................................................................... 25 
Service by transmitting and receiving agencies ................................................................. 26 
Step 1: Locating the relevant agencies and sending the request .................................................... 27 
Step 2: Transmission of documents between transmitting and receiving agencies (and subsequent 
communications) ............................................................................................................................. 28 
Step 3: Service of the document by the receiving agency ............................................................... 30 
Step 4: Returning the certificate of completion or non-completion of service ............................... 31 
5.1.1.4. 
Service by postal services ................................................................................................... 31 
5.1.1.5.  Direct Service ...................................................................................................................... 33 
Achievement of the specific objectives .................................................................................. 34 
Improving the efficiency and speed of cross-border proceedings ..................................... 35 
5.1.2.1. 
5.1.2.2. 
Improving access to justice and the protection of the procedural rights of parties involved 
in cross-border proceedings ................................................................................................................ 35 
The right to refusal of documents ................................................................................................... 36 
Default judgments based on a failure to respond ........................................................................... 38 
Issues affecting the rights of parties that are omitted from the Regulation ................................... 39 
5.1.2.3.  Minimising the burden for citizens and businesses involved in cross-border proceedings40 
Achievement of the general objectives .................................................................................. 41 
Ensure the smooth functioning of the area of freedom, security and justice .................... 41 
Ensuring the smooth functioning of the Internal Market .................................................. 41 

5.1.3.1. 
5.1.3.2. 

5.1.2. 

5.1.3. 

5.2. 

5.2.1. 
5.2.2. 

Efficiency ................................................................................................................................ 42 
Compliance costs for Member States ..................................................................................... 43 
Costs for citizens and businesses ............................................................................................ 44 
Translation Costs ................................................................................................................ 45 
Costs of method of service ................................................................................................. 45 
Time for serving a document across borders ..................................................................... 46 

5.2.2.1. 
5.2.2.2. 
5.2.2.3. 

5.3. 

Relevance ............................................................................................................................... 50 

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5.4. 

5.4.1. 
5.4.2. 

Coherence............................................................................................................................... 54 
Internal coherence .................................................................................................................. 54 
External coherence ................................................................................................................. 55 
5.4.2.1.  General Treaty objectives ................................................................................................... 55 
5.4.2.2. 
Relevant EU instruments in the field of judicial cooperation ............................................. 56 
5.4.2.3.  National law ........................................................................................................................ 62 
The Hague Convention and other bilateral or multilateral agreements ............................ 63 
5.4.2.4. 

5.5. 

EU added value ....................................................................................................................... 64 

6.  CONCLUSIONS.................................................................................................................. 65 

6.1. 

Effectiveness ........................................................................................................................... 65 

6.2. 

Efficiency ................................................................................................................................ 66 

6.3. 

Relevance ............................................................................................................................... 67 

6.4. 

Coherence............................................................................................................................... 68 

6.5. 

EU added value ....................................................................................................................... 69 

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1. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT 

The  EU  has  the  task  to  develop  the  European  area  of  justice  in  civil  matters  based  on 
principle  of  mutual  trust  and  mutual  recognition  of  judgements.  The  area  of  justice 
requires  judicial  cooperation  over  the  borders.  For  this  purpose,  and  for  the  proper 
functioning of the internal market, the EU has adopted legislation on cross-border service 
of  judicial  documents1  and  on  cooperation  in  taking  of  evidence2.  These  are  crucial 
instruments  to  regulate  judicial  assistance  in  civil  and  commercial  matters  between  the 
Member  States.  Their  common  purpose  is  to  provide  an  efficient  framework  for  cross-
border  judicial  cooperation.  They  have  replaced  the  earlier  international,  more 
cumbersome system of Hague conventions3 between the Member States4. 

This legislation on judicial cooperation has a substantial impact on the everyday lives of 
EU  citizens  in  their  private  capacity  or  business  activity.  It  is  applied  in  judicial 
proceeding  having  cross-border  implications;  its  proper  functioning  in  these  concrete 
cases is indispensable for ensuring access to justice and a fair trial for the parties to the 
proceedings (e.g. the lack of proper service of the document initiating proceedings is by 
far  the  most  often  used  ground  for  refusing  the  recognition  and  enforcement  of 
judgments5).  The  efficiency  of  the  framework  of  international  judicial  assistance  has, 
therefore, a direct impact on the perception of the citizens involved in such cross-border 
disputes on the function of the judiciary and the state of the rule of law in the Member 
States.  

Smooth  cooperation  between  courts  is  also  a  necessary  ingredient  for  the  proper 
functioning  of  the  internal  market.  In  2018,  there  are  in  the  European  Union 

1   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, pp. 79-120.   

2   Council  Regulation  (EC)  No  1206/2001  of  28  May  2001  on  cooperation  between  the  courts  of  the 
Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.06.2001, pp. 1-
24.   

3   The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents 
in  Civil  or  Commercial  Matters  and  the  Convention  of  18  March  1970  on  the  Taking  of  Evidence 
Abroad in Civil or Commercial Matters.   

4   The  Regulations  apply  to  all  EU  countries  except  Denmark.  Denmark  has  concluded  a  parallel 
agreement  on  19  October  2005  with  the  European  Community  on  the  service  of  judicial  and 
extrajudicial documents in civil or commercial matters, which extends the provisions of the Regulation 
on service of documents and its implementing measures to Denmark. The agreement entered into force 
on 1 July 2007.   

5   An  evaluation  study  of  national  procedural  laws  and  practices  in  terms  of  their  impact  on  the  free 
circulation  of  judgments  and  on  the  equivalence  and  effectiveness  of  the  procedural  protection  of 
consumers  under  EU  consumer  law  (carried  out  by  a  consortium  led  by  MPI  Luxembourg),  final 
https://publications.europa.eu/en/publication-detail/-
report, 
/publication/531ef49a-9768-11e7-b92d-01aa75ed71a1/language-en,  pp.60-61.  Hereinafter  referred  to 
as the "2017 MPI Study".  

available 

2017, 

June 

at 

6 

 
 
 
                                                            
approximately  3.4  million  civil  and  commercial  court  proceedings  with  cross-border 
implications6. In most of these cases, namely in those where at least one party resides in 
another Member State than the one where the proceedings takes place, courts apply the 
Regulation  on  service  of  documents,  often  even  several  times  in  course  of  the 
proceedings (since often further documents have to be served formally, in addition to the 
document  instituting  the  proceedings,  such  as  the  decisions  closing  the  proceedings). 
Furthermore, the application of the Regulation on service of documents is not restricted 
to  proceedings  before  the  civil  tribunals,  because  its  scope  covers  also  "extra-judicial" 
documents,  the  service  of  which  may  arise  in  various  out-of-court  proceedings  (e.g.  in 
succession cases before a notary public, or in family law cases before a public authority), 
or even in the absence of any underlying judicial proceedings7.  

The EU Justice Agenda for 2020 stressed that, in order to enhance mutual trust between 
the justice systems of the Member States of the EU, the need to reinforce civil procedural 
rights  should  be  examined,  for  example  as  regards  the taking  of  evidence.8  The  aim  of 
improving the framework  of judicial  cooperation within the EU is  also in  line with  the 
objectives of the Commission set by the Digital Single Market Strategy9: in the context 
of e-Government, the Strategy expresses the need for more actions to modernise public 
(including  judicial)  administration,  achieve  cross-border  interoperability  and  facilitate 
easy interaction with citizens.In line with this, the Commission has committed in its work 
programme for 2018 to prepare proposals revising the Regulation on taking of evidence 
and the Regulation on service of documents.10 

Regulation  (EC)  No  1393/2007  on  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 and commercial matters (service of documents) and repealing Council 
Regulation  (EC)  No  1348/2000  provides  for  expeditious  channels  and  clear  rules  for 
transmitting documents from one Member State to another, for purposes of service in the 
latter. The Regulation includes certain minimum standards with regard to the protection 
of  the  rights  of  defence  (e.g.  Articles  8  and  19),  and  sets  uniform  legal  conditions  for 
serving  a  document  by  post  directly  across  borders.    The  Regulation  represented  a  big 
step  forword  to  The  Hague  Convention  of  18  March  1970  on  the  Taking  of  Evidence 
Abroad in Civil or Commercial Matters (the “Hague Convention”). This latter establishes 
methods  for  provision  of  testimony  and  documents  between  a  signatory  state  when 
evidence  is  sought  and  another  signatory  state  where  evidence  is  located,  for  use  in 

6 

These  figures  reflect  the  estimates  which  Deloitte  presented  in  the  economic  study  supporting  this 
Impact Assessment. Estimates are based on Eurostat, CEPEJ, European Commission, and information 
gathered  as  part  of  the  interviews.  The  Study  (hereinafter  referred  to  as  the  "economic  study")  was 
contracted  to  Deloitte,  under  the  contract  nr.  JUST/2017/JCOO/FW/CIVI/0087  (2017/07),  Final 
Report of the study is not publsihed yet. hereinafter referred to as the "economic study".  

7 See detailed figures in subchapter 2.5. 
8  The  EU  Justice  Agenda  for  2020  Strengthening  Trust,  Mobility  and  Growth  within  the  Union, 
COM(2014) 144 final, p. 8. 
9 COM(2015) 192 final of 6.5.2015, p. 16.   
10  Commission  Work  Programme  2018  –  An  agenda  for  a  more  united,  stronger  and  more  democratic 
Europe, COM(2017) 650 final of 24.10.2017, Annex II points 10 and 11.  

7 

 
                                                            
judicial  proceedings  in  the  requesting  state.  The  Convention  provides  for  the  taking  of 
evidence  by  means  of  letters  of  request  or  diplomatic  or  consular  agents  and 
commissioners.  Evidence  is  obtained  by  issuing  a  letter  of  Request  to  the  designated 
central Authority  of the signatory  state  where the evidence is located. By contrast  with 
the  Hague  Convention,  Regulation  (EC)  No  1393/2007  governs  judicial  cooperation 
between  the  courts  of  the  Member  States  in  the  taking  of  evidence  in  civil  and 
commercial  matters  and  it  allows  the  taking  of  evidence  from  one  member  state  to 
another, without recourse to consular and diplomatic channels. This Regulation enables 
thus  a  simplified  route  by  allowing  direct  contract  between  the  courts  in  the  member 
states.  

This Impact Assessment was developed on the basis of the findings of the retrospective 
evaluation of Regulation (EC) No 1393/2007, which has been conducted in parallel (back 
to  back)  and  which  concluded  that  although  the  Regulation  has  achieved  its  main 
objectives to a satisfactory level and continues to be relevant, there are a number of areas 
in  which  significant  improvements  can  be  made.  The  options  for  such  improvements 
assessed in this document are based on the findings of the evaluation 

It should be noted that this Impact Assessment is closely linked to the Impact Assessment 
concerning Council Regulation (EC) 1206/2001 on cooperation between the courts of the 
Member  States  in  the  taking  of  evidence  in  civil  or  commercial  matters.  The  two 
initiatives are closely intertwined to the overall Commission priority of digitalization and 
e-Justice and follows the suit of parallel work in the field of criminal justice in order to 
create a level playing field in the areas of criminal and civil justice alike. It builds upon 
and benefits of already existing EU outputs and legal standards (e-CODEX, eIDAS Reg 
etc.).  The  Commission  has  recently  adopted  a  proposal  providing  for  a  legislative 
framework  on  e-evidence,  based  on  the  Council's  request  in  its  June  2016  conclusions, 
for  the  Commission  to  develop  a  platform  with  a  secure  communication  channel  for 
digital exchanges of requests for electronic evidence under the Directive on the European 
Investigation Order. This initiative is closely interlinked with e-CODEX, since Member 
State  experts  participating  in  the  development  of  the  platform  reached  the  conclusion, 
after considering different options, that the e-CODEX system would be the most suitable 
system to be used for such an exchange of electronic evidence. 

2.  PROBLEM DEFINITION 

2.1.  The problem tree 

The problems, their causes and effects are presented below by means of a problem tree, 
which  serves  to  illustrate  the  problems  faced  by  EU  citizens  and  businesses  due  to 
current limitations or shortcomings in the Regulation, the causes of these problems and 
their effects.  

The issues  identified  at  the bottom  of the so-called  ‘problem tree’ are considered to be 
the root causes/drivers of the problems that ensue for citizens. Ultimately, the problems 

8 

 
 
have  effects  at  the  level  of  overarching  EU  objectives.  The  figure  should  thus  be  read 
from the bottom to the top. 

In  the  following  sub-sections,  each  element  of  the  problem  tree  is  examined  in  further 
detail,  starting  with  the  causes/drivers  of  the  problem  and  the  resulting  problems  for 
citizens.  It  should  be  noted  that  the  problems  identified  in  this  section  are  those  which 
were evidenced in the parallel evaluation report on this Regulation. Both the evaluation 
and the impact assessment reports are based on data collected for both reports. 

9 

 
Figure 1: Problem Tree 

Source: Deloitte elaboration

10 

ProblemsDelays, undue costs and confusion for citizens and businessShortcomings in protection of procedural rights EffectsThe smooth functioning of the internal market is not ensured:•Costly and time-consuming procedures are a barrier when doing cross-border business•The development of the digital economy are hamperedAdministration of justice is not efficientFundamental rights (e.g. right of defence and access to justice) are not sufficiently safeguarded5. Legal proceeding4. Outcome and feedback to sender3. Way of serving doc to addressee2. Choose method and means of transmission of the doc.1.PreparationUnclear definition of extra-judicial documentsInsufficient quality of service by post (Art. 14) includingviasecurity risks, delays and insufficientfilling out of acknowledgement of receipt Non-compliance of receiving agencies with the timeframes set out in the RegulationReliance on paper-based means of communication between trasmitting and receivingagenciesUse of direct service (Art. 15) is restricted or inaccessibleCauses/DriversElectronic service of a document from MS A to a recipient with physical residence in MS B is not explicitly allowed or favouredUnclear requirements regarding translation of documentsInsufficient consideration for substituted/alternative service methodsUse of fictitious or alternative methodsof service:there are instances in which service is considered valid in MS A, irrespective of whether the defendant in MS B was actually informedSuccessful ServiceAcceptanceof thedoc. is refusedThe grounds for refusal and requirements under Art 8 are unclear Work-flowUndue costs for publicadministrations/ justice systemsService RegulationDeloitte DraftLack of clear information on the channels (if any) that are available within each Member State for assistance on locating an addresseeInformation on the eJusticeportal not up-to-date regardingservice methods & contact detailsofagenciesVarying practices relating to costs of the serving documents, sometimes not ensuring that citizens can afford such servicesAmbiguities in the RegulationLegaluncertainty 
 
 
2.2.  What are the problem drivers? 

As  demonstrated  in  the  problem  tree,  the  problems  under  the  Regulation  are  relatively 
few but their causes/drivers are many. Therefore, the causes/drivers are first explained in 
detail,  after  which  it  is  explained  how  they  lead  to  problems  and  what  are  their  larger 
effects (i.e. based on a reading the problem tree from bottom to top). 

2.2.1.  Ambiguities concerning the application of the Regulation 

The  Regulation  either  neglects  certain  aspects  that  are  regarded  as  a  priority  by 
stakeholders or is not sufficiently clear in a number of provisions: 

2.2.1.1.Lack of clear information on the channels available for assistance on 

locating an addressee 

It  is  clearly  stated  in  Article  1(2)  of  the  Regulation  that  it  does  not  apply  where  the 
address of the person to be served is not known. As also highlighted in the Commission’s 
2016 comparative legal analysis of the relevant laws and practices of the Member States 
regarding  the  service  of  documents11,  in  practice  this  provision  causes  significant 
problems for transmitting and receiving agencies.  

Firstly, it is difficult to establish when an address is known or unknown. For example in 
some Member States it is sufficient to address a document to the last known address of 
the  person  to  be  served  (e.g.  in  France).  In  some  cases,  documents  are  transmitted  to 
national central bodies or receiving agencies with the expectation that they would assist 
in locating the addressee. In fact, Member States have different understandings on who is 
responsible  for  locating  the  addressee.  In  about  half  of  the  Member  States,  this 
responsibility lies exclusively with the party that wants a document to be served12, while 
in  the  others,  although  the  party  may  still  be  required  to  specify  an  address  for  the 
addressee,  the  court  seized,  the  court  officer  or  the  bailiff  have  a  duty  to  take  certain 
measures in order to trace the whereabouts of the addressee13.  

Therefore,  there  are  currently  different  approaches  in  the  Member  States  on  the 
assistance  provided  (outside  the  Regulation)  to  applicants  in  civil  and  commercial 
matters on locating the whereabouts of an addressee or clarifying their address, once this 
is  proven  incorrectly  indicated  or  obsolete.  Consequently,  the  attitudes  of  the  central 
bodies  or  the  agencies  designated  under  the  Regulation  vary  in  how  they  react  to  a 
situation where there is a deficiency in the address.14 Such interventions ultimately lead 
to  delays  if  no  assistance  is  provided  by  that  Member  State.  Most  of  the  stakeholders 
consulted agreed that the idea of helping to identify whereabouts is satisfactory since the 

11 http://ec.europa.eu/justice/civil/files/report_service_documents_en.pdf pg. 7. 
12 http://ec.europa.eu/justice/civil/files/studies/service_docs_en.pdf, pg. 122.  
13 Ibid. 
14 See corresponding Evaluation Report by the Commission in Annex 8, p. 22. 

11 

 
 
                                                            
regulation was created in order to initiate proceedings. The need will be to have tools to 
identify whereabouts during the proceedings (i.e. bank enforcement order that cannot be 
enforced    for  lack  of  address).  ased  on  the  assessment  of  the  needs  of  stakeholders,  a 
mechanism is required to assist the actors concerned in legal proceedings in clarifying an 
address in another Member State15. 

2.2.1.2.Unclear definition of extra-judicial documents 

Article  1(1)  stipulates  that  the  Regulation  applies  to  both  judicial  and  extrajudicial 
documents.  In  the  Roda  Golf  &  Beach  Resort  SL  judgement,  the  CJEU  extended  the 
scope of application of the Regulation to purely private documents (i.e. document which 
do  not  emanate  from  a  public authorities)  if  their  service  is  needed  for the  assertion  or 
safeguarding of rights.16 From this perspective, the definition of extra-judicial documents 
is unclear for the majority of stakeholders.17 In fapt, the broad interpretation of the Court 
contributed to the ambiguity of this concept, since in a lot of the legal systems there is a 
clear  distinction  between  the  mail  delivery  for  private  reasons  and  the  legal  concept  of 
service  of  documents,  whereby  the  latter  is  only  conceivable  in  the  context  of  legal 
proceedings. 

While this was not found as a problem which would directly affect the daily application 
of  the  Regulation  (receiving  agencies  informed  the  economic  contractor  that  in  most 
cases they just comply with the incoming requests for service without strictly reviewing 
the  nature  of  the  documents  to  be  served).  The  ambiguity  around  this  concept  of 
"extrajudicial documents" in the Regulation, the fragmented interpretation of its content 
relying  on  the  diverging  views  of  the  national  procedural  laws,  is  against  the  stated 
intention of the EU legislator to have this notion as an autonomous concept of EU law18. 
Most  of  the  stakeholders  (and  especially  The  European  Union  of  Judicial  Officers) 
consultated suggested that the unclear definition of extra-judiciar documents could lead 
to legal uncertainty.  

15 See corresponding Evaluation Report in Annex 8, p. 54., or  COM(2013) 858 final, p. 7. 
16 CJEU 25.06.2009 - C-14/08 - Roda Golf & Beach Resort SL, unalex EU-179 
17  More  than  half  of  the  respondents  to  the  online  survey  of  Deloitte  indicated  that  the  meaning  of 

“extrajudicial documents” under the Regulation was not clear. 

18  See  CJEU  judgment  in  Case  C-14/08,  Roda  Golf  &  Beach  Resort,  paragraphs  49  and  50.  Already 
anticipating this interpretation the EU legislator deleted from the current version of the Regulation (which 
was adopted in 2007) the obligation to draw up a "glossary" with the list of documents which Member 
States considered as falling under the "scope" of the Regulation.   

12 

 
 
  
                                                            
2.2.1.3.Unclear  elements  in  the  right  of  the  addressee  to  refuse19  the 
acceptance of the document on the basis of is inappropriate language  

The  unclear  aspects  of  language  requirements  of  documents  to  be  served  under  the 
Regulation  are  causes  of  significant  difficulties  for  stakeholders.  The  assessment  of 
whether  the  addressee  understands  the  language  of  the  document  generates  practical 
problems  in  the  absence  of  clear  indicators  or  guidance  in  the  Regulation20.  The  burden  of 
proof,  and  therefore  the  responsibility  to  present  to  court  all  relevant  information 
indicating  the  actual  language  skills  of  the  addressee  is  usually  placed  upon  the  sender 
(the  adversary  to  the  addressee  in  the  proceedings).  This  is  regarded  as  complicated  in 
practice. 

The  requirement  to  provide information  on the  right  to  refusal21  is  also not  sufficiently 
clear  in  the  Regulation.  This  element  appears  in  20  out  of  114  cases  analysed  on  the 
Unalex  database.  In  these  cases,  in  general  it  was  an  issue  before  the  court  that  the 
information  on  the  right  of  refusal  according  to  Article  8  of  the  Regulation  had  been 
misleading  or  not  given.  According  to  some  interviewed  stakeholders, the  annex  forms 
are  not  required  to  accompany  the  document  served  if  the  documents  are  already 
provided in (or translated into) either a language the addressee understands or an official 
language of the place of service. This practice is, in fact, contrary to the conclusion of the 
CJEU  on  the  issue,  which  holds  that  the  receiving  agency  is  required,  in  all 
circumstances and without a margin of discretion, to inform the addressee of a document 
of his right to refuse to accept that document, by using systematically for that purpose the 
standard form set out in Annex II to the Regulation22. This misunderstanding of the CJEU 
case-load is due to  the fact that  Regulation lacks  clarity in terms of rights  of addresses 
who do not understand the official language of the place of service and to the provision 
of information to addressees on the right to refusal and where it is clear that the addresses 
understand  the  language  of  the  document.  Some  of  the  stakeholders,  such  as  the  The 
European  Union  of  Judicial  Officers  and  Chamber  Européen  des  Huissiers  de  Justice 
related that there is a lot of reluctance in attaching the Annex II in all the languages. 

A  well-founded  refusal  does  not  render  the  service  of  the  document  invalid,  but  is 
regarded  as  an  error  which  may  be  rectified  by  the  subsequent  transmission  of  the 
translation  of  the  documents  to  be  served  (Article  8(3)).  Such  a  remedy  leads  to 
additional delays which induced an unwanted consequence in practice, since transmitting 
agencies  in  some  Member  States  require  or  encourage  claimants  to  provide  a 
“precautionary”  translation  of  the  relevant  documents  from  the  beginning.23.  Such  a 

19 For ground for refusal, the corresponding cause/driver box is presented under “Acceptance of the doc. is 

refused” within Workflow point 5. “Legal proceeding” in the problem tree. 

20 See examples for the relevant problems: corresponding Evaluation Report in Annex 8, p. 26. 

21  In  the problem  tree,  the  corresponding  cause/driver box is presented  under  “Acceptance of  the  doc.  Is 

refused” within Workflow point 5. “Legal proceeding”. 

22 Judgment in Case In C-519/13, Alpha Bank Cyprus 
23 2017 MPI Study, p. 55. 

13 

 
                                                            
practice  is  difficult  to  reconcile  with  the  objective  of  the  Regulation  to  minimize  the 
instances of cross-border service of documents where translations are actually required.24  

2.2.2.  Varying  practices  relating  to  costs  of  the  serving  documents  (leading  to  both 

delays and inequalities in the market) 

Article 11 of the Regulation on the costs of the service of documents was inherited from 
the  preceding  Hague  Conventions  and  is  based  on  the  respect  for  diversity  of  the  legal 
systems.  This  solution  functions  well  with  different  legal  traditions,  and  this  aspect  is 
also  relevant  in  the  EU  context,  since  the  systems  Member  States  have  in  place  with 
respect to the service of documents differ significantly. This difference of the procedural 
laws  implies  that  a  certain  number  of  Member  States  charge  costs  for  their  services, 
whereas  the  majority  of  them  do  not.  This  tension  was  somewhat  mitigated  by  the 
revision of the Regulation in 2007 obliging Member State using a bailiff system to notify 
a  flat  rate  fee  in  advance,  thereby  creating  transparency  in  the  context  of  the  costs. 
Nevertheless, differences still remain significant, including one Member State which asks 
for 132 € + VAT for serving a single document. As a repercussion of this situation, there 
is  a  trend,  according  to  which  also  those  States  which  do  not  use  the  "bailiff  system" 
notify a flat rate fee for their services provided in return under the Regulation.  

However,  in  Member  States  where  judicial  officers  are  not  generally  involved  in  the 
service of documents (e.g. in Ireland) the burden for compliance with the Regulation is 
felt to be higher. This is because the processing and arrangement of serving documents is 
not  seen  as  a  typical  “court”  function  and  additional  resources  have  to  be  mobilised  to 
become acquainted with this service and to administer the requests.  

The  consultation  with  stakeholders  indicated  that  administrative  formalities  for 
transmitting  and  receiving  agencies  are  felt  to  be  heavy  and  quite  bureaucratic.  This  is 
because  of  the  rigid  use  of  the  long  and  complex  standard  forms  in  the  Annex  for 
communication between the agencies and the heavy reliance on paper-based procedures 
and postal service.  

2.2.3.  Reliance  on  paper-based  means  of  communication  between  transmitting  and 

receiving agencies 

The  parallel  evaluation  of  the  Regulation  found  that  communications  between  the 
designated  agencies  under  the  Regulation  are  overwhelmingly  paper-based.  This 
significantly  prolongs  the  process  and  hinders  the  efficient  and  speedy  transmission  of 
documents under the Regulation. Although the Regulation includes declarations in favour 
of  the  more  frequent  use  of  electronic  means  of  communication,  as  a  result  of  a 
continuous reluctance of Member States to accept such communication means, it did not 
fulfil its objective to promote in practice the use of the modern communication channels. 

24  See  in  this  regard  historical  context  in  the  corresponding  Evaluation  Report  by  the  Commission,  in 

Annex 8. 

14 

 
 
                                                            
The  majority  of  the  Member  States  still  relies  exclusively  on  the  paper-based 
communications:  only  seven  Member  States  accepted  e-mail  as  eligible  means  of 
communication for all types of interactions with their agencies under the Regulation, but 
the evaluation has  shown that  even in  relations where  electronic communication would 
be an option, they are not preferred in practice.   

The  findings  of  the  Evaluation  Report  can  be  verified  by  the  results  of  a  questionnaire 
conducted  in  the  context  of  the  European  Judicial  Network  in  civil  and  commercial 
matters, on the legal aspects of electronic service of documents under the Regulation, in 
201725.  The  analysis  of  the  replies  received  from  15  Member  States  has  shown  that 
whereas  88%  held  that  there  are  no  specific  obstacles  in  their  domestic  procedural  law 
which  would  prevent  their  transmitting  agencies  from  forwarding  the  documents  to  be 
served  under  the  Regulation  through  electronic  channels,  only  38%  held  it  possible 
(technically  and  in  legal  terms)  that  their  receiving  agencies  accept  another  Member 
States' electronic documents for purposes of service in their Member State. The replies to 
another  question  gave  a  blatant  proof  of  the  influence  of  old  habits  on  the  issue:  when 
asked  if  receiving  agencies  would  transform  incoming  paper  documents  into  electronic 
messages,  if  those  documents  could  be  served  electronically  to  the  addressee  in 
accordance  with  the  law  of  the  Member  State  addressed,  18%  of  the  respondents 
answered that this is not done in practice even if this would be legally possible.   

Most  of  the  stakeholders  consulted,  such  as  The  European  Union  of  Judicial  Officers 
(UEHJ) the Chamber Européen des Huissiers de Justice and the Council of Bars and Law 
Societies of Europe supported the move towards electronic transmission of documents to 
be served or evidence, as it will allow rapid management of judicial cooperation 

2.2.4.  Direct  electronic  service  of  a  document  from  MS  A  to  a  recipient  with  physical 

residence in MS B is not explicitly allowed or favoured 

The  evaluation  of  relevance  demonstrates  that  the  Regulation  is  not  well-adapted  for 
technological  developments  already  existing  at  the  national  level.  Electronic  service  of 
documents  is  an  emerging  method  in  civil  proceedings  in  the  Member  States,  national 
procedural  codes  are  opening  up  more  and  more  towards  this  possibility  (although  the 
types  of  cases  and  the  circle  of  addressee  eligible  for  this  method  of  service  varies 
hugely)26.  However  the  Regulation  does  not  mention  electronic  service  as  a  possible 
method  for  the  service  of  documents  in  cross-border  proceedings,  and  therefore  falls 
behind those national systems already including such method. In respect with the direct 

25 The results of the EJN questionnaire were presented in the meeting of the EJN (civil) of 30 November 

and 1 December 2017, in Tallinn. The results are not published.  

26 A good summary of the state of play in 2016 in the Member States can be found in the Study containing 

a comparative legal analysis of laws and practices of the Member States on service of document 
(launched by the Commission, carried out by a consortium composed of University Firenze, University 
Uppsala and DMI, published in November 2016), Available at:  
http://ec.europa.eu/justice/civil/files/studies/service_docs_en.pdf.,    

15 

 
 
                                                            
electronic  service,  the  Council  of  Bars  and  Law  Societies  of  Europe  and  the  European 
Union  of  Judicial  Officers  raised  questions  in  relation  with  (i)  the  certainty  of  the  fact 
that the served person takes note of the content, (ii) the date of service of document and 
about (iii) the validity of the documents sent and their content.  

2.2.5.  Insufficient  quality  of  service  by  post  (Article  14)  including  delays  and 

insufficient filling out of acknowledgement of receipt 

Although  service  by  post  is  a  preferred  method  of  service  for  the  majority  of 
stakeholders27,  there  are  still  concerns  regarding  delays  as  well  as  the  legal  uncertainty 
when acknowledgments of receipt are not sufficiently completed.  

Regarding delays, stakeholders highlighted the uncertainty that accompanies using postal 
service  with  regard  to  the  time  it  takes  to  reach  the  addressee,  including  considerable 
periods  being  necessary  in  some  Member  States.  The  biggest  issue  seems  to  be  the 
different levels of quality of postal services in the Member States.28 Some interviewees 
pointed  out  that  post  is  unreliable  since  they  do  not  know  if  the  postal  services  will 
deliver in time or to the right person. The origin of this practical problem lies in the fact 
that the Regulation does not harmonize the conditions relating to the eligible recipients in 
addition  to  the  addressee  (i.e.  which  other  persons  under  the  address  can  receive  the 
document if the addressee is not present at the time of the delivery), and does not regulate 
the  consequences  of  an  unclaimed  delivery  (i.e.  when  the  document  is  left  uncollected 
and is returned to the sender by the postal operator). 

Even when delivery of the document is successful through postal services, often there are 
issues  with  the  acknowledgement  of  receipt  supplied  by  the  mail  carrier  and  effective 
service  is  not  recognised  in  the  court  of  origin.  This  is  due  to  the  fact  that  the 
acknowledgment of receipt is often not sufficient to prove that service was effective. For 
example the date of receipt may not be properly filled in or the signature is illegible or 
not supplied. In addition, some interviewees highlighted the fact that it is unclear whether 
digital  versions  of  acknowledgment  are  regarded  as  “equivalent”  to  original  versions. 
Some  of  the  stakeholders  consulted  (the  European  Union  of  Judicial  Officers  and  the 
Hague  Conference  on  Private  International  Law)  suggested  that    that  it  would  be 
advisable to have an EU label envelope.  

27 In the online public consultation, with regard to the question on the preference of the traditional (judicial 
assistance)  channel  of  transmission  to  the  direct  methods of  service  (service  by  post,  or  direct  service) 
almost  half  of  those  who  expressed  an  opinion  preferred  the  use  of  the  direct  methods  (47%).  This 
finding can be corroborated by the results of the 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,  launched by  the  Commission  and prepared by  MainStrat, final report July 2012: 48.6% of  the 
interviewees of this latter 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 of the Study. Deloitte estimated in its economic study, based on its own research and 
data  collection,  that  the  proportion  of  the  use  of  the  postal  service  method  amounts  to  55%  of  all 
instances where the Regulation is applied (2018 Deloitte economic study, p. 33).  
28 This issue has appeared in 19 out of 114 cases analysed on the Unalex database. 

16 

 
 
                                                            
2.2.6.  Use of direct service (Article 15) is restricted or inaccessible 

Article 15 of the Regulation allows that any person interested in legal proceedings in one 
Member State (Member State of origin) may request directly a judicial officer (bailiff), 
official or other competent person in another Member State (Member State addressed) to 
serve  a  document  there.  The  availability  of  this  method  of  service  in  the  Regulation  is 
limited  in  two  senses:  first,  only  persons  involved  ("interested  in")  a  legal  proceeding 
may  apply  this  way  of  service,  consequently  transmitting  agencies  are not  permitted  to 
exploit this possibility. Second, this may be applied only in those Member States where 
the domestic law permits the service of the document through judicial officers or  other 
competent  professionals.  Direct  service  is  regarded  as  an  efficient  method  of  service 
among  stakeholders.  However,  the  use  of  the  method  is  not  available  in  all  Member 
States,  restricting  the  access  of  some  applicants  to  a  rapid  and  direct  mean  of  serving 
documents.  In  addition,  confusion  is  generated  when  Member  States  accept  the  direct 
service  of  documents  domestically  but  restrict  its  application  for  cross-border  service. 
The consultation with the stakeholders also indicated that Article 15 of the Regulation is 
a  very  effective  tool  and  that  extending  its  scope  of  application  will  mean  a  great  step 
forward. Moreover, the group of experts suggested that Member States should leave open 
all the methods available under national law and should provide at least one person who 
can provide service under national law according to Article 15 of the Regulation. 

2.2.7.  Use of fictitious or alternative methods of service at national law is preferred to 

the Regulation 

This  problem  driver  is  generated  by  the  vague  precondition  of  the  Regulation 
determining  the  scope  of  application,  according  to  which  it  should  apply  only  when  a 
document  has  to  be  transmitted  from  one  Member  State  to  another.  This  precondition 
enables  courts  to  keep  the  service  of  a  document  in  a  "domestic"  context  and  to  use 
national  methods  of  substituted  or  fictitious29  service  of  documents  also  in  cases  where 
the  addressee  has  his/her  residence  or  seat  in  another  Member  State.  This  constitutes  a 
clear  disadvantage  for  foreign  addressees,  since  when  the  Regulation  is  not  used,  the 
uniform standards therein protecting the rights of the defence (such as Art. 8 or Art. 19) 
do not apply. The frequency of this problem can be demonstrated by the fact that in total 
19 out of 114 cases analysed on the Unalex database involve considering service valid in 

29 "Fictitious/notional method of service of documents" is, where the legislator does not want to inform the 
party  anymore,  but  just  to  ensure  that  there  is  an  act  considered  as  formal  service  so  that  the 
proceedings may be continued ("publication on the court board",  placing the doc. to be served to the 
case file). It is almost certainty that the defendant does not get the information.  
"Substituted/alternative method of service of documents" is, where the document is not delivered on the 
addressee in person, but to another person/place, from where you can presume that the document will 
reach him/her (giving the document to an adult member in the same apartment, or to the employer of 
the addressee; placing it in a mailbox belonging to the addressee; delivering to a place which is owned 
by the addressee etc.). In these situations there is a probability that the defendant will be informed in the 
end. 

17 

 
 
                                                            
Member State A by the use of fictitious or alternative methods, irrespective of whether 
the defendant in Member State B was informed.  

In general, interviews with stakeholders found that fictitious service is quite common in 
cross-border proceedings. Nevertheless the lack of guidance of the Regulation on the use 
at domestic level of fictitious and substituted service on addressees with a residence or 
seat in another Member State causes uncertainty and fragmentation concerning the rights 
of  parties  in  the  Member  State.  In  this  sense,  the  group  of  experts  suggested  that  more 
streamline  rules  are  necessary  with  regard  to  the  persons  that  can  be  substituted  and 
proposed to codify Henderson Case30.  

This  divergence  of  approaches  in  practice  remained  even  after  the  conclusions  of  the 
CJEU  made  on  the  scope  of  the  Regulation  in  the  Alder  Case,  which  underlined  that 
whenever  the  addressee  has  his/her  residence  or  seat  in  another  Member  State,  the 
Regulation should apply and the service of the document on him/her shall be attempted 
through  the  channels  of  the  Regulation31.  There  is  evidence,  that  this  conclusion  of  the 
Court is not followed and that there is a tendency of national courts to prefer "domestic" 
methods  of  service  of  documents  even  in  cases  where  they  are  aware  of  the  foreign 
residence of the addressee.  

2.2.8.  Insufficient protection of the defendant against the effects of default judgments 

Interviews  in  the  fieldwork  Member  States  found  that  default  judgments  are  quite 
common  in  cases  falling  under  the  Regulation.  According  to  Article  19(1)  of  the 
Regulation  courts  are  limited  by  various  requirements  in  passing  default  judgments 
against  defendants  on  whom  the  document  instituting  the  proceedings  has  had  to  be 
transmitted to another Member State. Irrespective of this, the interests of the defence are 
not in all instances properly protected, since Article 19(2) of the Regulation allows, for 
reasons of procedural economy, a continuation of the proceedings even if the court could 
not establish that the foreign defendant was actually informed.  

The consultation with stakeholders showed that the means of communication within the 
EU  are  different  and  therefore  is  difficult  to  assess  when  the  judgements  become 
definitive.The  2017  MPI  Study  found  that  the  court  of  origin  will  often  not  be  able  to 
establish  whether  or  not  service  in  another  Member  State  has  been  effected  on  the 
defendant or whether the defendant has at least received the relevant document because a 

30  Judgement  of  2  March  2017  in  Case  C-354/15,  Henderson,  ECLI:EU:C:2017:157.  According  to  the 
Court,  Regulation  No 1393/2007  must  be  interpreted  as  meaning  that  postal  service  of  a  document 
instituting  proceedings  is  valid,  even  if:– ‘The  document  to  be  served  has  not  been  delivered  to  its 
addressee  in  person,  provided  that  it  has  been  served  on  an  adult  person  who  is  inside  the  habitual 
residence of that person and is either a member of his family or an employee in his service.’ 

31 Judgment of 19 December 2012 in Case C-325/11 Alder, ECLI:EU:C:2012:824. According to the Court, 
the  only  exceptions  from  the  application  of  the  Regulation  in  these  cases  are:  if  the  address  of  the 
addressee is not known or if the addressee has an authorized representative in the Member State of origin.  

18 

 
                                                            
 
court  will  often  not  be  in  a  position  to  investigate  the  details  of  the  service  process  in 
another  Member  State.32  Furthermore,  the  Study  concludes  that  the  reservation,  which 
allows for the continuation of the proceedings after six months have elapsed and has been 
notified by more than half of the Member States, does result in fictitious service on the 
defendant. That will not only undermine the defendant’s protection but it is also contrary 
to the idea of mutual trust.33  

Another weakness in the protection of the right of the defence is detected in the uneven 
level and lack of transparency of the available legal remedies after a default judgment has 
been  issued.  Article  19(4)  of  the  Regulation  provides  a  special,  autonomous  provision 
according to which the judge can relieve the defendant from the effects of the expiry of 
the time limit for ordinary appeal in cases of error of service of the document instituting 
the  proceedings.  The  problem  with  this  autonomous  extraordinary  relief  is  that  its 
accessibility  may  be  limited  in  time  by  the  Member  States  (a  majority  of  them 
communicated to the Commission that they will not entertain a request for the relief once 
one year has passed from the issuance of the default judgment). Another problem of this 
autonomous  extraordinary  relief  is  its  relationship  to  further  extraordinary  reliefs  in 
national law. 

2.2.9.  Information on the e-Justice portal not up-to-date or easy to find  

Despite the usefulness of the information contained on the e-Justice portal regarding the 
service  of  documents,34  it  was  found  that  information  regarding  the  application  of  the 
Regulation, the contact details of agencies and central bodies and the national laws and 
practices on service of documents is often not up-to-date or easy to find. This generates 
uncertainty for the stakeholders involved and can add additional delays to the process of 
serving a document where e.g. information is relied upon and subsequently found to be 
incorrect. In the dedicated meetings with the Member States, some of them conveyed that 
there in an advantage in making it easier to search existing registers, including via the e-
Justice Portal: UK, Netherlands, Cyprus, Austria, Germany, Portugal and Romania.  

2.2.10. Non-compliance  of  receiving  agencies  with  the  timeframes  set  out  in  the 

Regulation 

It is broadly recognised that the timeframes for the communication between transmitting 
and  receiving  agencies  (i.e.  sending  the  acknowledgement  of  receipt  within  7  days, 
serving the document with 30 days etc.) are not respected. The non-compliance with the 
timeframes  leads  to  uncertainty  and  delays  for  the  parties  involved.  As  shown  in  the 
corresponding Evaluation Report, difficulties in meeting the time limits in the Regulation 

32 2017 MPI Study, p. 170. 
33 2017 MPI Study, p. 171. 
34 According to 68% of respondents to the public consultation, the relevant pages of the European e-Justice 
Portal properly inform the parties to a proceeding or the recipients of judicial documents about their 
rights and obligations related to the cross-border service of documents. 

19 

 
 
                                                            
by the designated agencies are directly connected with the problem driver relating to the 
reluctance  to  use  modern  means  of  communication  for  interactions  between  the 
agencies35. 

2.3.  What are the problems for citizens, businesses and public administrations 

The  difficulties/causes  identified  in  the  previous  section  lead  to  concrete  problems  for 
citizens, businesses and Member States. There are four main problems. 

2.3.1.  Delays, undue costs and confusion for citizens and business 

Delays  and  undue  costs  are  caused  for  citizens  and  business  by  all  difficulties/causes. 
There  is  also  a  strong  interplay  between  delays  and  costs,  for  example  confusion 
generated  by  the  uncertainties  in  the  Regulation  (e.g.  efforts  to  clarify  an  address or  to 
find the proper interpretation of an ambiguous provision) leads to delays in the process 
and ultimately undue costs for such delays.  

2.3.2.  Undue costs for Member States (Public administrations and justice systems) 

Member State’s central bodies and relevant authorities experience undue costs under the 
Regulation  in terms  of resources (i.e. staff costs,  administrative costs)  spent  on dealing 
with  requests  and  decisions  under  the  Regulation.  These  undue  costs  are  driven  by 
uncertainties concerning the application of the Regulation.  

Undue  costs  are  also  strongly  driven  by  the  reliance  of  transmitting  and  receiving 
agencies on paper based means of communication.   

2.3.3.  Shortcomings in protection of procedural rights  

Shortcomings  in  the  protection  of  procedural  rights  are  closely  linked  with  the  use  of 
fictitious  or  alternative  methods  of  service  where  the  addressee  is  not  in  real  terms 
informed of the existence of the document.  

In addition, the unclear elements in the right of the addressee to refuse the acceptance of 
the document on the basis of its inappropriate language also contributes to the problem of 
protection of rights for both the applicant and the addressee. As the grounds for refusal 
may  be  determined  on  a  test  of  the  addressee’s  understanding  of  the  language,  which 
protects  the  addressee,  this  refusal  method  may  also  be  abused,  which  leads  to 
unnecessary delays in the procedure and denial of the procedural rights of the applicant.  

Insufficient  protection  of  the  Regulation  against  default  judgments  feeds  also  in  to  this 
problem. 

Similarly,  the  non-compliance  of  receiving  agencies  with  the  timeframes  set  out  in  the 
Regulation  can  affect  the  procedural  rights  of  the  parties  as  well  as  the  insufficient 
consideration for substituted/alternative service methods. 

35 Evaluation Report p. 29. 

20 

 
                                                            
2.3.4.  Legal uncertainty 

Without a doubt, ambiguities concerning the application of the Regulation lead to legal 
uncertainty.  In  addition,  legal  uncertainty  under  the  Regulation  is  connected  to  the 
preference of fictitious or alternative methods of service at national level to the use of the 
Regulation as this directly affects the scope of application of the Regulation. 

The insufficient quality of service by post is also a main driver of legal uncertainty. First, 
the  acknowledgement  of  receipts  (return  slips)  filled  in  an  inappropriate  way,  may  not 
prove in a legally appreciable way that service have been effected. Second, the silence of 
the  Regulation  on  the  eligible  substituting  recipients  or  on  the  consequences  of  an 
unclaimed delivery adds to the uncertainty of the result of the assessment of the delivery.    

Further, legal uncertainty may also derive from the fact that in some Member States the 
use of direct service is restricted/inaccessible, despite it being allowed domestically – as 
lawyers  or  transmitting  agencies  may  rely  on  this  method  of  service  being  acceptable 
though it is not. 

2.4.  Effects at the level of wider EU policy 

As shown in the Problem Tree figure (see Figure 1), the causes and problems identified 
and explained in the previous section have wider effects, influencing general EU policy 
objectives. The following effects have been identified: 

  The smooth functioning of the internal market is not properly ensured 
  Administration of justice is not efficient 
  Fundamental rights are not sufficiently safeguarded 

The following subsections present the assessment of these effects. 

2.4.1.  The smooth functioning of the Internal Market 

Some of the problems previously described hinder the functioning of the Internal Market, 
which is manifested by: 

  Costly and time-consuming procedures are a barrier to cross-border business; 
  The development of the digital economy is hampered. 

First, both citizens and businesses should be able to not only make use of the advantages 
of  the  Internal  Market  (i.e.  an  undisturbed  flow  of  cross-border  procedure),  but  also  to 
solve  any  disputes  that  may  arise  in  this  context,  regardless  of  the  Member  State 
concerned.  Nevertheless,  some  concrete  problems  arising  from  the  application  of  the 
Regulation are preventing the Internal Market from providing such benefits.  

The  delays  and  undue  costs  and  confusion  created  by  the  ambiguities  concerning  the 
application in the Regulation constitute a significant barrier for businesses and citizens. 
Businesses should be able to operate and solve any issue they face with their counterparts 
in any of the EU Member States. The lack of  a smooth facilitation of the Internal Market 
by  the  Regulation  may  constitute  a  deterrent  for  citizens  and  businesses  in  getting 

21 

 
involved  in  cross-border  transactions  in  the  future  as  they  might  prefer  to  avoid 
administrative hassle, delays and involved costs.  

Second, a proper functioning of the Internal Market should entail the development of the 
digital  economy.  However,  as  described  in  the  previous  section,  transmitting  and 
receiving  agencies  still  strongly  rely  on  paper  based  means  to  communicate  and  cross-
border electronic service of documents is practically not possible under the Regulation. 
Yet,  paper-based  communication  entails  delays  and  costs  for  public  administrations, 
justice  systems,  and  citizens/businesses  alike.  The  development  of  digital  economy  is 
therefore hampered in this case.  

2.4.2.  Administration of justice 

Public  administrations  as  well  as  justice  systems  are  facing  several  issues  when 
implementing  this Regulation  which hampers their efficiency. As previously  explained, 
they  are  facing  undue  costs  in  terms  of  resources  (i.e.  staff  costs,  administrative  costs) 
spent on dealing with requests and decisions under the Regulation. These undue costs are 
driven by ambiguities in the Regulation and by the reliance of transmitting and receiving 
agencies on paper based means of communication.   

In  addition,  the  legal  uncertainty  arising  from  the  ambiguities  in  the  Regulation  (e.g. 
relating to the quality of service by post) together with the shortcomings in the protection 
of procedural rights also indicate that the administration of justice fails to be as efficient 
as it should be.   

2.4.3.  Fundamental rights 

Article 47 of the EU Charter of Fundamental Rights, stipulates that “Everyone is entitled 
to  a  fair  and  public  hearing  within  a  reasonable  time  by  an  independent  and  impartial 
tribunal previously established by law”36. The access to justice is broader, and entails37: 
effective emedies, access to court, fair trial, redress, judicial protection and due process. 

All  these  rights  are  at  stake  when  the  procedural  rights  of  the  parties  are  not  duly 
respected  in  cross-border  proceedings.  It  was  found  in  the  parallel  evaluation  exercise 
that the fundamental rights  of a party  to  a cross-border proceeding  may be at risk with 
regard to two main issues:  

  Service of documents in a language not understood by the addressee (or conversely 

an abuse of this right). 

  Insufficient level of protection of the defendant against  default judgments  in case 

he/she was not properly served with the document instituting the proceedings. 

The  policy  package  addresses  these  shortcomings.  Firstly,  the  policy  package  would 
contribute to more clarity and predictability of the procedure revolving around the right 

36  Article  47  EU  Charter  of  Fundamental  Rights,  http://fra.europa.eu/en/charterpedia/article/48-

presumption-innocence-and-right-defence 

37 FRA, Access to justice in Europe: an overview of challenges and opportunities, March 2011. 

22 

 
                                                            
of refusal of addressees and a better protection of their procedural rights. In addition, the 
proposal  will  state  the  criteria  to  assess  the  language  skills  of  the  addressee.  Such 
amendment would further protect addressees ensuring they understand the content of the 
document they have been served on the one hand, and would safeguard the non-abuse of 
the right of refusal, thus equally protecting the plaintiff’s rights on the other hand. 

As regard the protection of the defendant against default judgements, it should be noted 
that Article 19 of the Regulation contains provisions on the consequences of a defendant 
not  entering  an  appearance.  The  provision  limits  the  possibility  for  the  court  to  give 
judgment  against  a  defendant  who has  not  appeared and  who  was  to  be  served  abroad. 
Paragraph 4 enables the judge to free the defendant from the effects of the expiry of the 
time for appeal against a default judgment. This provision thus provides a safeguard to 
make  sure  that  the  defendant’s  procedural  rights  have  been  taken  into  account.  It  is 
complemented by the possibility to refuse recognition of a judgment on the ground that 
the defendant was not served with the document which instituted the proceedings or an 
equivalent document correctly, as stipulated in the Brussels Ia Regulation (Art. 45(1)(b)). 
The policy package will add more clarity concerning the due diligence to be carried out 
before issuing default judgements by obliging courts to send altert messages through all 
means of communication which are reasonably likely to be accessible (i.e. email address, 
social media etc). 

The  possibilities  created  by  the  e-CODEX  electronic  system  would  have  a  positive 
impact  on  the  ability  to  exercise  the  right  to  an  effective  judicial  remedy,  and  are 
therefore  in  conformity  with  Article  47  of  the  Charter  of  Fundamental  Rights  since 
electronic communication and document transmission enhances and  reduces the time of 
the court proceedings. Stakeholders have pointed out that Article 47 also guarantees the 
right  to  an  impartial  and  independent  tribunal,  and  that  in  order  be  in  conformity  with 
that  Article,  future  governance  and  coordination  of  e-CODEX  and  e-CODEX-related 
activities  need  to  ensure  that  the  system  does  not  interfere  with  the  functioning  of  the 
judiciary  is  guaranteed38.Moreover,  the  electronic  method  of  service  together  with  the 
proposed ‘digital by default’ principle is expected to not only have a positive effect on 
access to justice, but also contribute to faster proceedings. Furthermore, it reduces costs 
or failures of service of documents experienced otherwise, where an inefficient method to 
effect  service  would  have  been  chosen  due  to  a  lack  of  options  under  the  baseline 
scenario.Likewise,  the  clarification  provided  by  the  proposal  on  the  definitions  and 
concepts would reduce legal uncertainty and speed up procedures under the Regulation in 
practice.  

Next under the baseline scenario, the protection of personal data is not considered to be 
affected  by  the  current  Regulation.  External  factors  influencing  data  protection  and 
privacy are the General Data Protection Regulation (GDPR) and the growing threats to 
cybersecurity (also  affecting  public authorities). After  entering into force  in  May  2018, 

38 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-3600084/feedback/F2268_en 

23 

 
                                                            
the 

integrity  of  postal  services  or 

the  GDPR  is  expected  to  increase  awareness  on  the  issue,  prompt  actions  to  ensure 
security  and  integrity  of  databases  and  swift  reactions  to  breaches  of  privacy  in  the 
judiciary.  However,  data  protection  in  the  judiciary  will  continue  to  be  largely 
determined  by  national  decisions  and 
the 
agencies/authorities involved in the process of cross-border service under the Regulation. 
At  the  same  time,  the  incidence  of  attempted  attacks  on  public  IT  infrastructure  is 
expected to increase until 2030. This will also affect the judiciary in the Member States, 
depending  on  the  proliferation  of  electronic  communication,  court  IT  systems  and  the 
interconnectedness  with  other  IT  systems  or  databases.  Lastly,  the  wide  variety  of 
potential  uses  for  social  media  corresponds  to  an  equally  broad  range  of  legal  issues 
relating to these communication channels. However, it should be noticed that documents 
will not be sent via social media, but these networks will be only used to sent information 
notice.  

2.5.  How will the problem evolve? 

With regard to the timeframe 2018-2030, the main findings of the quantification exercise 
are as follows: 

  Number of legal proceedings in which the Regulation is expected to be applied: 

o  In  year  2018,  it  can  be  expected  that  there  are  up  to  3  255  070  legal 
proceedings across all EU Member States in which the Regulation will be 
applied; 

o  Until 2030, this number is expected to increase up to 4 164 734 per annum 

(i.e. +24%)39 

For service through postal services, cases are expected to increase from 1.9 million to 2.4 
million between 2018 and 2030. For service through transmitting and receiving agencies, 
the  number  is  expected to  increase  from  around  1  million  to  1.3  million  over  this time 
span. Regarding direct service, the number is expected to increase from 445 431 in 2018 
to  569  911  in  2030.  Finally,  for  service  through  diplomatic  channels,  the  number  is 
expected to increase from 68 528 in 2018 to 87 679 in 2030. 

The increase in the number of proceedings, where the Regulation will be applied, would 
generally  amplify  the  existing  problems,  without  any  appropriate  intervention.  In 
particular,  the  continued  reliance  on  paper  based  means  of  communication  and 
transmission of documents would increase the gap between the output efficiency of the 
judicial  assistance  procedures  of  the  Regulation  and  the  demands  and  needs  of  EU 
citizens  in  a  more  digitalized  world.  Where  society  and  governance  is  more  and  more 

39 These figures reflect the estimates which Deloitte presented in the economic study, based on Eurostat, 
CEPEJ,  European  Commission,  and  information  gathered  as  part  of  the  interviews.  The  estimates  of 
Deloitte are decreased by 5% which include the approximate number of administrative proceedings (i.e. 
legal  proceedings  between  a  public  authority  and  a  business  or  citizen)m  which  types  of  cases  are 
excluded from the scope of the Regulation 

24 

 
 
                                                            
digitalised,  a  system  of  cross-border  service  of  documents,  which  is  not  following  this 
trend but continue to be based on paper, will hamper the general governance of justice40.  

3.  WHY SHOULD THE EU ACT? 

3.1.  Legal basis 

The  legal  basis  is  Article  81  TFEU  (judicial  cooperation  in  civil  matters  having  cross-
border  implications).  The  broad  mandate  of  Article  81  aims  at  creating  an  integrated 
system  of  circulation  of  judgments  and  other  documents  from  one  Member  State  to 
another.  Subparagraphs  (b)  and  (d)  of  paragraph  (2)  of  this  Article  grants  the  EU  the 
power to adopt measures, particularly when necessary for the proper functioning of the 
internal  market,  aimed  at  ensuring the  cross-border  service of  judicial  and  extrajudicial 
documents and the cooperation in taking of evidence. 

3.2. 

Subsidiarity 

legal  situations  acquired  under  one 

The  aim  of  the  policy  area  concerning  judicial  cooperation  in  civil  matters  has  been 
always  be  to  establish  a  genuine  area  of  freedom,  security  and  justicewhere  judicial 
decisions  circulate  and 
legal  system  are 
acknowledged  within  the  EU  across  borders  without  unnecessary  obstacles.  This 
approach is based on the conviction that without a genuine judicial area the underlying 
freedoms  of  the  single  market  cannot  be  fully  exploited.  Some  of  the  other  EU 
instruments  enacted  under  judicial  cooperation  in  civil  matters,  however,  prevent  the 
circulation (either the recognition or enforcement) of judgments when at the origin of the 
proceedings  there  was  a  defect  in  service  of  process,  such  that  the  defendant  did  not 
receive proper notice of the existence of proceedings.41  

The  problems  to  be  tackled  by  the  initiative  arise  in  cross-border  judicial  proceedings 
which  by  definition  transcend  the  reach  of  national  legal  systems  and  stem  either  from 
the insufficient level of cooperation between the authorities and officers of the Member 
States,  or  from  the  lack  of  interoperability  and  coherence  of  the  existing  domestic 
systems  and  legal  environment.  Rules  in  the  area  of  private  international  law  are  laid 
down  in  Regulations  because  that  is  the  only  way  to  ensure  the  desired  uniformity  of 
rules. While nothing prevents Member States in principle from digitalising the way they 
communicate, past experience and the projection of what will happen without EU action 
shows that progress be very slow and that even where Member States take action, inter-

40 More details on the possible effects of an unchanged scenario can be read in chapter 7.1 assessing the 

impacts of the status quo. 

41 See, e.g., Art. 34(2) of the old Brussels I Regulation (44/2001) and Art. 45(1)(b) of the Brussels I Regulation as recast. 

25 

 
 
 
                                                            
operability cannot be ensured without a framework under EU law. The objective of the 
proposal cannot be sufficiently accomplished by the Member States themselves and can 
therefore  be  only  achieved  at  Union  level.  At  a  time  when  exequatur  procedures  are 
being gradually abolished, thus removing preventive verification of proper service before 
enforcement,  the  need  to  ensure  that  the  defendant  received  actual  notice  is  even  more 
important.The  EU  added  value  lies  in  further  improving  the  efficiency  and  speed  of 
judicial  procedures,  by  simplifying  and  accelerating  the  cooperation  mechanisms  with 
regard to the taking of evidence and thus improving the administration of justice in cases 
with cross-border implications. 

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

The  policy  objectives  set  out  the  political  priorities  and  aims  for  action  in  the  relevant 
field.  They  are  an  essential  step  of  every  impact  assessment,  including  because  they 
support the creation of a  logical link between the  identified problems and the solutions 
considered.  

Policy objectives are normally identified at the following levels: 

  Operational objectives concern deliverables or objectives of actions; 
  Specific  objectives  relate  to  the  specific  domain  and  set  out  what  the 

Commission wants to achieve with the intervention in detail; and 

  General objectives refer to Treaty-based goals and constitute a link with the 

existing policy setting. 

The following figure presents the policy objectives. 

26 

 
Figure 2: Objectives Tree 

27 

 
 
 
28 

 
 
 
 
 
 
 
4.1.  General objectives 

The  general  objective  of  the  initiative  is  to  ensure  proper  administration  of  justice  in 
cases with cross-border implications, thereby contributing to a better functioning of the 
Internal  Market  and  reducing  unnecessary  costs  whilst  at  the  same  time  safeguarding 
fundamental rights (e.g. rights of the defence).  

4.2. 

Specific objectives 

The  specific  objectives  are  to  further  improve  the  efficiency  and  speed  of  judicial 
proceedings, in a way which maintains or improves the existing level of access to justice 
and the protection of the rights of the defence in cross-border proceedings. This could be 
achieved  through  promotion  of  faster  and  direct  means  of  digital  communication, 
like e-Codex.The intervention should also reduce the burdens for citizens and businesses 
involved in cross-border proceedings resulting from undue costs and delays, and reduce 
the level of legal uncertainty identified in course of the evaluation of the Regulation. 

4.3.  Operational objectives 

The operational objectives ensure that all appropriate means are used to warrant a direct 
and rapid transmission of documents. In particular, this will include the determination of 
clear conditions under which the electronic delivery of a document to the user account of 
an  addressee  in  another  Member  State  would  be  considered  as  valid  under  the 
Regulation. 

In  addition,  the  intervention  should  ensure  that  the  direct  methods  of  service  of 
documents),  become  more  attractive,  efficient  and  broader.  As  for  the  service  by  post, 
benefit can be expected from greater certainty and reliability in terms of service by post 
(with  the  use  of  a  specific  return  slip).  In  respect  with  Article  15  (‘direct  service’),  its 
application will be considerably enhanced by englarging the access of parties involved in 
a cross-border proceeding to services that are available in the Member States.  

Lastly,  the  intervention  will  reduce  the  instances  where  addressees  are  refusing  the 
acceptance of the document due to the inappropriate language, by clarifying that Annex 
II of the Regulation should be attached in all cases, even where the document is in the 
language of the MS of the addressee or if there is a clear indication that he understands 
the language of the document and to include  clear information on the legal consequences 
of the refusal for the recipient in the Annex. 

29 

 
 
 
  
 
 
 
5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? 

For each driver, a range of options from non-legislative to different levels of ambition of 
legislation has been identified. They are shown in the table below. 

30 

 
Table 1: Overview of options for each problem identified 

Baseline 
Option 0 
The judicial system does not provide support to identify an unknown address cross border 

Non-Legislative 
Option 1 

Legislative 
Option 2 

A Service of documents can only reach its objective if the person who initiates the service process disposes of information on the actual whereabouts of the addressee. This 
requires  a  correct  physical  address.  Practical  problems  arise  if  the  initiator  of  the  service  of  the  document  either  does  not  have  any  such  information  ("whereabouts 
unknown") or if the information at his/her disposal turns out to be incorrect.  Currently, the Regulation does not provide any tool in order to help claimants in cross-border 
proceedings finding the whereabouts of a person abroad.  

1.0 No 
policy 
change apart 
from what is 
already 
underway or 
currently 
planned 

1.1.1 Providing information on the 
e-Justice Portal on the tools and 
options for citizens and business 
available at national level for 
locating an addresses. 

1..1.2 Creating a uniform search 
mask on the e-justice Portal, 
through which individual requests 
can be forwarded to national 
domicile registries  

1.2 Member States will be obliged to facilitate address enquiries through (at least) one of the following 
alternatives tools: 
a) providing judicial assistance upon request of courts/transmitting agencies from other Member States; 
b) accepting requests from individuals to national domicile registers which are transmitted through the e-justice 
portal;  
 c) providing detailed information (with appropriate hyperlinks) on available tools in the territory of the 
Member State.  

2. Insufficient protection of the defendant against the effects of default judgments (Art. 19)  

 

31 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Baseline 
Option 0 

Non-Legislative 
Option 1 

Legislative 
Option 2 

Both  recognition  and  enforcement  of  a  judgment  may  be  refused  (under  arts.  45(b)  and  46  Brussels  I  Regulation)  "where  the  judgment  was  given  in  default  of 
appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way 
as to enable him or her to arrange for his/her defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to 
do so". 

Article 19 (4) does not provide a harmonised rule establishing a time period for the restitution against default judgements which can generate a  different degree of 
protection of the procedural rights across the Member States. 

No options specified 

4.0 No 
policy 
change apart 
from what is 
already 
underway or 
currently 
planned 

4.2.1(a) If service fails or the physical 
address is not known, oblige agencies 
and central bodies to send alert 
messages through all means of 
communication which are known and 
reasonably likely to be accessible 
exclusively to the addressee, 
including e-mail addresses and social 
media accounts through private 
communications. 

4.2.1(b) Introduce uniform time 
period of 2 or 3 years for the 
availability of the extraordinary 
review in Art. 19(4) to set aside a 

4.2.2 Extraordinary 
reliefs in national law 
for restitutio in 
intregrum against 
default judgments may 
not be applied for 
purposes of cross-border 
recognition and 
enforcement of the 
default judgment after 
the expiry of the 2 year 
period in 19(4). 
(codification of the 
Lebek ruling42):  

4.2.3(a) If service fails or the physical 
address is not known, oblige courts to send 
alert messages through all means of 
communication which are known and 
reasonably likely to be accessible 
exclusively to the addressee, including e-
mail addresses and social media accounts 
through private communications. 

4.2.3(b) Delete time-periods in Art. 19(4) to 
set aside a default judgement  

42   As  the  CJEU  has  held  in  C-70/15,  Lebek,  Art.  19(4)  does  not  only  set  a  minimum  standard  for  the  possibility  of  restitutio  in  integrum,  but  a  maximum  one  excluding  the 
availability of other extraordinary reliefs under national laws beyond the time-period open for the relief in Article 19(4). The Court stated that when the time limit communicated by 
the Member State for the relief in Article 19(4) has elapsed, the defendant cannot bring an application for relief under national law after the elapse of this time limit, even when 
national law provides for a longer time limit. The consequence of such a rule “for cross-border recognition and enforcement of the default judgment” would entail with it that a 

32 

 
 
 
 
 
 
                                                            
 
Baseline 
Option 0 

Non-Legislative 
Option 1 

Legislative 
Option 2 
default judgment  

3. Reliance on paper-based means of communication between transmitting & receiving agencies 

The Regulation expressly promotes the use of electronic means of communication between the designated national authorities in a general manner. However, this did 
not  materialise  in  practice  since  there  is  evidence  that  Member  States'  designated  authorities  do  not  accept  electronic  means  of  communications  for  transmitting 
documents between themselves Using existing EU products, such as the CEF e-Delivery building block (eCODEX) could be a reasonable solution since it is already 
used in almost 20 Member States. The e-CODEX system provides standard components for a communication system for the justice area, and it encompasses all the 
necessary standards to allow legal electronic communication between Members States or authorities in specific cross border legal procedures.  

7.1 Sharing of best practices 
between MS (designated 
authorities) on e-communication 

7.0 No 
policy 
change apart 
from what is 
already 
underway or 
currently 
planned 
4.Electronic service of a document from MS A to recipient with physical residence in MS B is not explicitly allowed or favoured 

7.2.1 Codifying the principle of "digital by default" 
for communications and transmission of documents 
between transmitting and receiving agencies 

7.2.2 Oblige Member States that all agencies and 
central bodies under the Regulation use, as a default, 
for purpose of communication and exchange of 
documents between each other a secure electronic 
channel (e-CODEX) 

Currently, electronic service methods are not used in cross-border situations under the Regulation. The recently adopted eIDAS Regulation43 defines the concept of 
electronic trust services in the EU and regulates cross-border recognition aspects. According to Art. 43(2) of the eIDAS Regulation, "data sent and received using a 

defendant who was not informed properly about the institution of the proceedings against him/her, may still rightly invoke Article 45(1)(b) of Regulation 1215/2012 (“Brussels Ia”) 
to block the recognition and enforcement of that judgment in another Member State.  

43 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal 
market and repealing Directive 1999/93/EC, OJ L 257, 28.8.2014, p. 73–114. The Regulation sets the regulatory environment for secure electronic transactions between citizens and 
businesses. The eIDAS Regulation: 1) ensures that people and businesses can use their own national electronic identification  means even if for other countries (on the basis of the 

33 

 
 
 
 
                                                                                                                                                                                                                                                                                                              
 
 
Non-Legislative 
Option 1 

Baseline 
Option 0 
qualified electronic registered delivery service shall enjoy the presumption of the integrity of the data, the sending of that data by the identified sender, its receipt by 
the identified addressee and the accuracy of the date and time of sending and receipt indicated by the qualified electronic registered delivery service". 

Legislative 
Option 2 

No options specified 

8.0 No 
policy 
change 
apart from 
what is 
already 
underway 
or currently 
planned 

8.2.1 Introduce cross-border electronic service as an 
accepted method of service under the Regulation, 
provided that this complies with some uniformly 
defined conditions: 
a) the document is transmitted electronically to an 
end-user who is a client of a qualified Electronic 
Registered Delivery Service (ERDS)  (according to 
the standards of eIDAS Regulation44), OR 
b) the document is sent to another electronic mailbox 
or user account, if there is an express consent by the 
recipient in the individual case to use this account for 
purposes of serving on him/her. 

8.2.2 Oblige MS to ensure interoperability between 
their domestic e-delivery systems used in legal 
proceedings in civil and commercial matters, 
where such systems exist at the national level 

5. Insufficient quality of service by post (Art 14) including delays and insufficient filling out of acknowledgement of receipt 

Due to its low cost and expeditiousness service by post is used frequently and is even preferred to the method of transmission through transmitting and receiving 
agencies. However, there are several practical difficulties which affect the efficiency of this service method negatively, i.e. with acknowledgments of receipt which 
are filled in improperly or incompletely because they do not provide appropriate evidence on the relevant facts of the effected or attempted service. In such cases, 
courts in the requesting Member States may be unable to determine from the return receipt to whom the delivery was performed or when. 

9.0 No 
policy 

No options specified 

9.2.1 (a) Clarifying in a recital the 
uniform standard character of the 

9.2.2 (a) Clarifying in a recital the 
uniform standard character of the 

9.2.3 (a) Create a uniform list of 
eligible alternative ("substituting") 

principle of mutual recognition). 2) creates an European internal market for "electronic trust services" by ensuring that they will work across borders and have the same legal status as 
traditional paper based processes.  

44 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal 

market. 

34 

 
 
 
 
                                                                                                                                                                                                                                                                                                              
Non-Legislative 
Option 1 

Baseline 
Option 0 
change apart 
from what is 
already 
underway or 
currently 
planned 

Legislative 
Option 2 
existing conditions in Article 14 to 
postal service  
+ 
9.2.1(b) Obliging transmitting 
agencies to label envelopes 
containing documents to be served 
through which the postal operators 
and addressees are alerted to the 
official nature of the document  

existing conditions in Article 14 
to postal service  
+ 
9.2.2 (b) Introducing a specific 
uniform international return slip 
(acknowledgement of receipt) 
through which documents under 
the Regulation are served by post 
(postal operators have to follow 
specific rules in course of the 
delivery of such docs)  

methods of service, once the 
document has to be served to 
another Member State: 
Acceptable methods could 
constitute the ones e.g. included in 
Art. 13-14 of Reg. (EC) 
805/200445 or Art. 13-14 of Reg. 
(EC) 1896/200646 

9.2.3 (b) Fine tune/upgrade the 
standard form in the Annex on the 
service of the document, so that it 
reflects in more detail the eligible 
alternative methods 

6. Use of direct service (Article 15) is restricted or inaccessible 

In accordance with Article 15, only persons "interested in" the legal proceedings may have recourse to this method of service, which prevents transmitting agencies 
(who are not involved in the underlying proceedings as parties) from applying this way of service. 

45  Regulation  (EC)  No  805/2004  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  creating  a  European  Enforcement  Order  for  uncontested  claims,  http://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R0805&from=EN 
(EC)  NO  1896/2006  of  12  December  2006 

46  Council  Regulation 

for  payment  procedure,  http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32006R1896&from=EN, ; and Regulation (EU) 2015/2421 of the European parliament and of the Council of 16 December 2015 amending 
Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure, http://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2421&from=EN 

a  European  order 

creating 

35 

 
 
 
 
 
 
                                                            
Baseline 
Option 0 
10.0 No 
policy 
change apart 
from what is 
already 
underway or 
currently 
planned 

Non-Legislative 
Option 1 
10.1 Information sheet for citizens 
and legal practitioners on the 
availability of direct service 
(Article 15) 
+ 
Practice guide for the courts/ 
designated authorities on how to 
use Article 15 in the Regulation 

Legislative 
Option 2 
10.2.1  Extending the scope of application of Article 
15 so that also transmitting agencies (bodies, legal 
persons and bailiffs) of the MS of origin may apply 
for it 

10.2.2 Obliging all Member States to ensure that 
foreign persons interested in legal proceedings may 
directly turn to competent persons or officials in their 
territory with a request to serve a document. This would 
imply that those Member States whose laws currently 
does not recognize such type of service should allocate 
this task to a particular branch of profession.  

Measures related to the e-justice portal are considered in non-legislative options for other problems 

12. Information on the e-Justice portal not up-to-date or easy to find 
12.0 No 
policy 
change 
apart from 
what is 
already 
underway 
or currently 
planned 
Source: Deloitte elaboration 

36 

 
 
 
 
6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? 

This chapter presents the assessment of impacts of the individual options. It starts with an 
assessment of the options proposed for all high-priority issues. The preferred options are 
then combined into a “Preferred PolicyMeasure”, which is assessed against the baseline 
scenario (Option 0). 

This section includes the assessment of the options proposed for all problems identified 
in  the  problem  assessment.  The  different  options  are  assessed  using  the  following 
common assessment criteria: 

Assessment Criteria for assessment of the options 

Criterion 

Examples of elements to consider 

Effectiveness (i.e. extent 
to which the options 
address the policy 
objectives) 

  Potential  of  the  options  to  achieve  the  key  policy 

objectives, in particular:  
o To reduce legal uncertainty 
o To further improve the efficiency and speed of judicial 

proceedings 

o To improve access to justice and the protection of the 

procedural rights of parties to the proceedings 

o To reduce the burden from undue costs and delays for 
citizens  and  businesses  involved  in  cross-border 
proceedings. 

  Main  cost  factors  for  various  (public  and  private) 

stakeholders 

  Main benefits for various stakeholders  

  Assessment of whether the option goes further than what 

is needed, based on:  
o Scope of the option 
o Type  of  instrument  proposed  (e.g.  hard  law  vs.  soft 

measures) 

Efficiency (i.e. cost-
benefit balance) 

Proportionality (i.e. 
extent to which the 
options are in line with 
what is needed to achieve 
the policy objectives) 

The assessment tables, organised per problem to be addressed, are presented in Annex 5.  

As a consequence of this "high-level" assessment, for all specific problems we retain one 
option  which  received  the  highest  ranking  among  the  others  addressing  the  same 
problem. The combination of these retained options will compose the preferred "Policy 
Package", for which a detailed assessment (including a cost-benefit analysis, and analysis 
of  various  other  impacts)  will  be  carried  out,  in  line  with  the  Better  Regulation 
Guidelines of the Commission. 

The  results  of  the  assessment  of  the  Preferred  Policy  Package  can  be  summarised  as 
follows: 

37 

 
 
 
Problems 

Option 

1. Lack of clear 
information on the 
channels (if any) 
that are available 
within each 
Member State for 
assistance on: 
locating an 
addressee, 
clarifying an 
address 
2. Unclear 
definition of extra-
judicial documents 

3. Unclear elements 
in the right of the 
addressee to refuse  
the acceptance of 
the document on 
the basis of is 
inappropriate 
language 

4. Insufficient 
protection of the 
defendant against 
the effects of 
default judgments 
(Art. 19) 

5. Use of fictitious 
or alternative 
methods of service 
at national law is 
preferred to the 
Regulation 

1.2 Member States will be obliged to facilitate address enquiries through (at 
least) one of the following alternatives tools: 
a) providing judicial assistance upon request of courts/transmitting agencies 
from other Member States; 
b) accepting requests from individuals to national domicile registers which 
are transmitted through the e-justice portal;  
c) providing detailed information (with appropriate hyperlinks) on available 
tools in the territory of the Member State.  

2.2.1  Codify  the  CJEU  case  law  by  specifying  in  the  Regulation  that  its 
application  is  not  restricted  to  documents  which  emanate  from  a  public  or 
judicial  authority  (for  instance  a  public  notary),  but  includes  also  private 
documents if formal service is required in order to prove or protect rights of 
the claimant. 
3.2.1 Amend provisions in the Regulation to clarify that: 

 

 

 

information  on  the  right  to  refuse  should  always  be  provided, 
regardless  of  the  language  of  the  documents  to  be  served,  by  the 
competent  agency,  diplomatic  or  consular  agent,  or  the  authority  or 
person  serving  the  document  by  postal  service,  through  the standard 
form in Annex II of the Regulation (CJEU case-law). 
improvement  of  the  content  of  the  information  note  contained  in 
Annex II of the Regulation (clearer messages to  the recipient  on the 
legal consequence of the refusal)  
inclusion of indicators (non-exhaustive examples) in a recital helping 
the assessment of the language skill of the addressee in case of refusal 
by the forum court.. 

4.2.1(a) If service fails or the physical address is not known, oblige agencies 
and central bodies to send alert messages through all means of 
communication which are known and reasonably likely to be accessible 
exclusively to the addressee, including e-mail addresses and social media 
accounts through private communications. 

4.2.1(b) Introduce uniform time period of 2 or 3 years for the availability of 
the extraordinary review in Art. 19(4) to set aside a default judgment  

+ 
4.2.2 Extraordinary reliefs in national law for restitutio in intregrum against 
default  judgments  may  not  be  applied  for  purposes  of  cross-border 
recognition and enforcement of the default judgment after the expiry of the 2 
year period in 19(4) (codification of the Lebek ruling 

5.2.2 Codify that the use of fictitious methods are allowed against foreign 
parties,  who,  despite  the  invitation  of  the  court  seised,  do  not  appoint 
representatives for purposes of service in the MS of the proceedings 
+ 
5.2.3 Transfer the content of recital 8 to the normative rules   
+ 

  5.2.4 Set the principle with regard to the use of fictitious and "alternative" 

38 

 
 
Problems 

Option 

6. Varying 
practices relating 
to costs of serving 
documents (leading 
to both delays and 
inequalities in the 
market  
7. Reliance on 
paper-based means 
of communication 
between 
transmitting & 
receiving agencies 
8. Direct electronic 
service of a 
document from MS 
A to recipient with 
physical residence 
in MS B is not 
explicitly allowed 
or favoured 

9. Insufficient 
quality of service 
by post (Art 14) 
including via 
security risks, 
delays and 
insufficient filling 
out of 
acknowledgement 
of receipt 

(substituting) domestic service methods: as a default rule, service should be 
attempted  through  the  ways  of  the  Regulation,  if  the  addressee  has  its 
seat/residence in another MS. 
6.1 Provision of information on the e-Justice portal on the approach to costs 
in the Member States i.e.: 

  Clarifying whether a Member State charges for service by receiving agency 
  Clarifying  whether  such  payment  is  to  be  pre-paid  and  which  means  of 

payment are accepted  

7.2.2 Oblige Member States that all agencies and central bodies under the 
Regulation use,  as  a default, for purpose  of communication and exchange 
of documents between each other a secure electronic channel (e-CODEX) 

8.2.1 Introduce cross-border electronic service as an accepted method of 
service under the Regulation, provided that this complies with some 
uniformly defined conditions: 

a) the document is transmitted electronically to an end-user who is a client 

of a qualified Electronic Registered Delivery Service (ERDS)  
(according to the standards of eIDAS Regulation47), OR 

b) the document is sent to another electronic mailbox or user account, if 

there is an express consent by the recipient in the individual case to use 
this account for purposes of serving on him/her. 

(b) 

international 

Introduce  a  specific  uniform 

9.2.2 (a) Clarify in a recital the uniform standard character of the existing 
conditions in Article 14 to postal service 
+ 
return  slip 
9.2.2 
(acknowledgement  of  receipt)  through  which  documents  under  the 
Regulation are served by post 
+ 
9.2.3  (a)  Create  a  uniform  list  of  eligible  alternative  ("substituting") 
methods of service, once the document has to be served to another Member 
State and 
9.2.3 (b) Fine tune/upgrade the standard form in the Annex on the service 
of  the  document,  so  that  it  reflects  in  more  detail  the  eligible  alternative 
methods 

10. Use of direct 
service (Article 15) 
is restricted or 
inaccessible 

10.2.2 Extend the scope of application of Article 15 so that also so that also 
transmitting  agencies  (bodies,  legal  persons  and  bailiffs)  of  the  MS  of 
origin may apply for it 
+ 
10.2.3 Oblige all Member States to ensure that foreign persons interested in 
legal  proceedings  may  directly  turn  to  competent  persons  or  officials  in 

47  Regulation  (EU)  No  910/2014  of  the  European  Parliament  and  of  the  Council  of  23  July  2014  on 

electronic identification and trust services for electronic transactions in the internal market. 

39 

 
 
 
                                                            
Problems 

Option 

their territory with a request to serve a document. 
11.2.2  Introduce  a  “digital-by-default”  principle  obliging  Member  States’ 
agencies  and  authorities 
to  use,  as  a  rule,  electronic  means  of 
communications for their interactions with each other.  

11. Non-
compliance of 
receiving agencies 
with the timeframe 
set out in the 
Regulation 

7.  COMBINED EFFECTS OF THE PREFERRED OPTION AS A PACKAGE 

As  a  next  step,  first  the  baseline  scenario  and  then  the  preferred  policy  package  are 
assessed in relation to the following five criteria:  

  Effectiveness;  
  Efficiency;  
  Coherence; 
  Impacts on diversity, non-discrimination and the protection of personal data;  
  Environmental impacts.  

7.1.  Baseline scenario 

Before  the  Regulation  and  its  predecessor  (Regulation  (EC)  1348/2000)  entered  into 
force,  the  cross-border  service  of  judicial  and  extrajudicial  documents  in  civil  and 
commercial  matters  was  regulated  by  a  various  set  of  international  conventions  or 
bilateral  mutual  agreements  between  the  Member  States.  There  were  two  major  global 
conventions  elaborated  in  the  Hague  Conference  on  Private  International  Law,  at  least 
one of which each Member State was a party to, but these global conventions allowed for 
the  use  of  bilateral  agreements  or  arrangements  if  these  further  facilitated  the  cross-
border  service  of  documents.  Consequently,  there  was  a  hugely  fragmented  legal 
landscape as to the applicable legal basis. 

The  legal  sources  in  place  before  the  Regulation  (EC)  1348/2000  provided  for  a 
cumbersome and slow transmission and service of the documents. Mainly based on the 
traditional  diplomatic  or  consular  channels,  or  as  the  1965  Hague  Convention  on  the 
intervention  of  Central  Authorities,  they  included  several  intermediary  steps  until  the 
document  reached  the  local  authority  (court  or  judicial  officer)  in  the  State  addressed, 
who was responsible for the actual service of the document to the addressee. The average 
timeline for serving a single document was between 6 and 9 months, which was visibly 
reduced  with  the  introduction  of  the  EU  Regulation  (2  months  on  average).  e-CODEX 
has  the  potential  to  become  the  main  digital  solution  for  cross-border  cooperation 
between judicial authorities and cross-border judicial procedures in the European Union 

Another feature of the baseline scenario was the high costs of the cross-border service, 
since the previous legal sources of the international law always required the translation of 
the documents to be served in the official language of the Member State addressed for a 

40 

 
 
formal delivery of the document. The EU Regulation constituted a paradigm shift in this 
regard, since here the translation of the document is not an inevitable precondition of the 
service of the document,  but  an element  for the protection of the rights of the defence, 
which  becomes  only  necessary,  if  the  original  language  of  the  documents  is  not 
understandable to the addressee.  

The  baseline  scenario  is  assessed  in  relation  to  these  five  criteria  and  afterwards  the 
policy package. The detailed assessment is to be found in Annex 6. 

The 

results 

of 

the 

assessment 

can 

be 

summarised 

as 

follows: 

Criteria 

Rating  Summary 

Assessment 

Effectiveness 

0 

Efficiency 

0 

Coherence 

0 

The status quo is not highly effective at meeting the policy objectives. 
Although the Regulation would continue to have a limited positive 
effect on the efficiency and speed of judicial proceedings, delays based 
on uncertainties and practical challenges would persist. A major impact 
on the effectiveness of the Regulation going forward is the continued 
reliance on paper based means of communication and transmission of 
documents. In addition, cross-border proceedings are expected to grow 
up until 2030 and thus the application of the Service Regulation will 
become more common. Therefore, current legal uncertainties may 
become more widespread with the current issues on the access to justice 
not fully alleviated 

The efficiency of the status quo is limited. Although the assessment of 
efficiency in the evaluation did not indicate that the costs currently 
outweigh the benefits, going forward the current process of serving 
documents may become more cumbersome or incompatible with more 
modern processes at the domestic level, leading to more inefficiencies. 

Delays and costs are expected to remain at an equal level per case but 
increase at an overall level in line with the overall increase of cases. 
Postal services and process services are expected to generate additional 
revenue also because of the increase in cases. 

In the baseline scenario, the overall internal and external coherence of 
the Regulation is expected to be ensured to a certain extent with both 
national and EU measures. Digitisation is a crucial trend that will 
challenge the coherence of the Regulation with other EU instruments 
and policies. 

Impacts on 
fundamental 

0 

The baseline scenario is expected to ensure the access to justice and the 
procedural rights. Nevertheless, some difficulties and confusions will 

41 

 
 
 
rights  

Environmental 
impacts 

Overall rating 
and conclusion 

still remain hampering the rights of the parties. In addition, the 
protection of personal data is not considered to be affected by the 
current Regulation. 

0 

0 

In the baseline scenario, the environmental impacts of the Regulation 
are expected to increase due to the increasing number of cross-border 
proceedings, the service of document via the service methods foreseen 
in its provisions, and the paper-based communications between the 
designated authorities.   

Under the baseline scenario, the problems identified in the problem 
assessment, including in relation to costs and delays, would likely 
continue. 

7.2.  Policy package 

Next, the policy package is first assessed in relation to the five criteria.  

The detailed assessment is to be found in Annex 7. 

At this place, the presentation of the assessment will restrict only to the major relevant 
points, after which a summary of the assessment will be outlined in a table.  

7.2.1.  Use  of  e-CODEX  for  communications  and  document  exchanges  between  the 

designated agencies and central authorities 

The ideas of this option envisages that in the future, if possible, all interactions between 
the  agencies  and  central  bodies  designated  under  the  Regulation  should  be  carried  out 
electronically,  through  the  e-CODEX  (which  uses  the  CEF  e-Delivery  building  block, 
which  is  generally  promoted  by  the  EU  in  pan-European  IT  solutions).  Using  this 
channel  “as  a  default”  means  in  this  context,  that  the  legislator  may  consider  some 
justified exceptions from this rule, but any such exceptions must be defined narrowly and 
exhaustively.  Two  possible  exceptions  may  be  considered.  One  situation  is,  when  the 
document  instituting  the  proceedings  contains  voluminous  annexes  of  documentation 
pertaining to the cause of action, one may argue that the transformation of such a volume 
of  documentation  to  electronic  form  and  then  back  to  paper-format  constitutes  an 
unnecessary  burden  both  on  the  transmitting  and  on  the  receiving  agencies.  This 
argument  is,  however,  less  convincing  given  that  most  civil  procedures  allow  for 
enclosing  documentation  through  digital  data  storage  medium.  The  other  situation  with 
relevance  for  a  possible  exception  includes  cases  where  the  procedural  law  of  the 
Member  State  of  origin  expressly  requires  the  delivery  of  the  true  original  of  the 
document  (in  paper  format).  Nevertheless,  even  in  such  cases,  the  legislator  shall 
thoroughly  consider,  why  a  digital  equivalent  (furnished  with  the  same  legal  effects  as 
the originals) could not be used.    

This option would constitute an important step towards the digitalization of workflows in 
the area of civil and which can be accomplished at moderate costs. The baseline scenario 

42 

 
 
calculations estimate that currently, due to the paper-based communication processes, the 
processing  of  one  request  for  service  can  take  up  to  2  months  when  no  complications 
arise. With the use of e-CODEX, agencies will have access to direct communication and 
transmission of documents, thereby reducing the overall time for processing a request by 
about 3 – 9 days48.  

As to the costs of the deployment of this solution, our estimates indicate that acquisition 
costs for the e-CODEX hardware are marginal at one-off costs of approx. EUR 15 000 
and  approx.  EUR  2  000  annually  for  hardware  maintenance.49  This  cost  concerns  the 
deployment  of  the  national  connector  and  gateway  which  are  the  components  of  the  e-
CODEX enabling the interactions between the relevant national IT systems of the various 
Member  States.  Of  course,  Member  States  have  to  ensure  that  all  their  national 
transmitting and receiving agencies (and central bodies) at local level will be connected 
to  their  national  gateway,  so  that  all  of  these  local  agencies  serve  as  e-CODEX  access 
points in the national system. Nevertheless, additional hardware acquisition costs in this 
context are not included in the calculation, because it was assumed that all agencies and 
bodies designated under the Regulation (courts, bailiffs, governmental authorities) have 
internet connection and, at least, one PC point. It is to be mentioned that even these costs 
falling  to  a  Member  State  under  the  proposed  policy  option  may  not  incur,  since  those 
Member States (and there are many of them) who have already deployed the necessary 
infrastructure in the context of the previous e-CODEX pilot projects may choose to reuse 
this infrastructure (national connector and gateway) for purposes  of the communication 
system to be established under the Service Regulation.   

7.2.2.  Facilitate the uptake of electronic means of serving documents 

The  most  relevant  improvement  of  the  preferred  Policy  Package  in  this  context  is  the 
introduction of (direct) cross-border electronic service as an accepted method of service 
of  documents  under  the  Regulation,  provided  that  this  complies  with  some  uniformly 
defined conditions. 

Such  introduction  is  a  gradual,  but  but  important  step  towards  digitalization  in  cross-
border proceedings. It has full regard to the various IT developments and to the differing 
level  of  achievement  in  digitalization  of  the  Member  States,  without  unjustified 
interference  with  the  pace  of  such  national  developments.  Nevertheless,  this  step,  by 
legitimizing the direct cross-border electronic service of documents (“direct” means here: 
sent directly from the applicant of one Member State to the user account of the recipient 
in the other Member State), it will certainly incentivize the use of this method. It is to be 

48  Draft  Commission  Staff  Working  Document.  Impact  Assessment.  Cross-border  e-Justice  in  Europe. 
Accompanying  the  document:  Regulation  of  the  European  Parliament  and  of  the  Council  on  the 
computerised cross-border communication in judicial proceedings (eCODEX) (unpublished – provided 
to the study team by the EC). 

49  Draft  Commission  Staff  Working  Document.  Impact  Assessment.  Cross-border  e-Justice  in  Europe. 
Accompanying  the  document:  Regulation  of  the  European  Parliament  and  of  the  Council  on  the 
computerised cross-border communication in judicial proceedings (eCODEX) (unpublished – provided 
to the study team by the EC). 

43 

 
                                                            
reminded that under the current Regulation such instances of service of documents do not 
happen  in  practice,  mainly  due  to  the  silence  of  the  Regulation  on  the  legal  effects  of 
such a delivery. The two alternative conditions set for the use of direct electronic service 
is in coherence with the EU digital policy (by reusing and promoting the standards of the 
eIDAS  Regualtion),  and  ensures  compatibility  with  national  procedural  laws  (by 
introducing the uniform requirement of the express consent of the addressee, which fully 
respects the rights of the defence).  

As  to  the  cost-implications  of  this  option  of  the  preferred  Policy  Package,  it  should  be 
noted  that  certain  types  of  businesses  will  benefit  from  the  implementation  of  the 
digitalization measures.50  

7.2.3.  Address enquiries 

The  policy  package  introduces  a  few  new  measures  with  regard  to  the  problems 
associated with the situation where the physical address of the addressee is not known or 
proves to be incorrect or obsolete: 

According to the first measure proposed, Member States have to ensure that they provide 
assistance to persons interested in legal proceedings from other Member States in finding 
information about the physical whereabouts of their adversaries. In this flexible systems, 
Member States shall choose at least one of three different options by which they provide 
this assistance to right-seekers from other Member State: 

i. 

ii. 

iii. 

Their courts or authorities shall provide judicial assistance upon the request 
of  courts  or  transmitting  agencies  from  other  Member  States  to  determine 
the current address of a person in their territory , or 
Their  national  domicile  registers  shall  accept  applications  from  persons 
interested  in  legal  proceedings  in  other  Member  States  forwarded  to  these 
registers electronically, via the European e-Justice Portal, or  
They have to provide detailed information (with appropriate hyperlinks) on 
the  tools  available  for  right  seeking  persons  from  other  Member  State  for 
purposes of clarifying the physical address of a person in their territory;  

With this measure it may be expected the reduction of the number of instances where the 
foreign  defendants  are  actually  not  informed  of  the  legal  proceedings  instituted  against 
them  abroad.  Currently,  such  situations  occur  frequently,  insofar  as  it  is  possible  to 
conclude  on  such  a  frequency  from  the  high  rate  of  default  judgments  in  cross-border 
cases51.  Claimants  in  legal  proceedings  with  no  information  about  the  address  of  their 
adversaries abroad (e.g. proceedings against private individuals based on non-contractual 
claims) are left without any help in locating their counterparts. With the alternative set of 
options outlined above, these claimants will receive effective assistance in those Member 
States which will opt for the alternatives under i. or ii., whereas they will receive a useful 
guidance  from  where  they  can  move  on  in  getting  to  the  information  needed  in  those 
Member States which will opt for the alternative iii. 

50 See detailed assessment in Annex 7, p. 152. 
51 See p. 36 of the corresponding Evaluation Report  by the Commission in Annex 8.  

44 

 
 
                                                            
Although the options under i. and ii. will generate some costs on the side of the public 
administrations,  these  costs  will  be  marginal,  assuming  that  only  those  Member  States 
will  opt  for  these  options  who  have  already  similar  tools  in  place:  With  regard  to  the 
option  in  i.,  relating  to  the  provision  of  judicial  assistance,  it  is  to  be  noted  that  the 
commitment by States to execute requests for address enquiries in civil and commercial 
proceedings is a recurring element of mutual (bilateral) judicial assistance agreements of 
public international law. Such provisions have a history also in the agreements concluded 
between  the  Member  States52.  With  regard  to  the  option  under  ii.,  relating  to  the  direct 
applications to domicile registers via the e-Justice Portal, it should be underlined that due 
to the flexibility of the measure it does not create an obligation to Member States which 
currently do not have a central domicile register to create one. The latter Member States 
may  simply  opt  for  the  other  two  tools  when  deciding  the  way  they  wish  to  assist  EU 
citizens and businesses in address enquiries. Furthermore, it should be noted that the only 
additional “burden” falling on those Member States who opt for the solution in ii. is that 
in  the  future  they  will  accept  applications  from  other  Member  States  via  e-mails  (the 
request  submitted  through  the  relevant  web-service  of  the  e-Justice  Portal  would  be 
forwarded  to  the  electronic  account  of  the  national  register  indicated  by  the  Member 
State, and as of that moment of transmission the application will be treated in accordance 
with the relevant national rules in force there). Even if in this case, the domicile register 
of the Member State may expect the increase in the volume of applications, the additional 
workforce needed to address those extra applications could easily be compensated by the 
introduction of a reasonable fee corresponding the service (nothing in the EU Regulation 
would prevent a Member State to charge a fee for such a service). 

The  second  measure  in  the  preferred  option  proposes  that  the  courts  seised  with  legal 
proceedings in the Member State of origin send, in the context of their duty under Article 
19(1)  and  (2)  of  the  Regulation,  alert  messages  through  all  means  of  communication 
which are known and reasonably likely to be accessible exclusively to the addressee. It 
should  be  underlined  that  this  option  does  not  oblige  agencies  to  attempt  service  of 
documents  through  social  media;  it  only  obliges  the  agencies  in  the  Member  States  to 
look for other possible ways of alerting the addressee that service of a document has been 
attempted.  By  this,  it  will  increase  the  number  of  situations  where  defendants  whose 
physical whereabouts are not known to the court or claimant get actually informed about 
the fact that a foreign proceeding is instituted against them. In most of the cases, it may 
be assumed that good-faith defendants will activate themselves and try to engage in time 
into the proceedings.  

7.2.4.  Facilitating access to direct service 

Two new measures are introduced to facilitate the access to direct service of documents: 

a.  Extending the scope of application of Article 15 so that also transmitting agencies 
(bodies, legal persons and bailiffs) of the Member State of origin may apply for it; 

52 See MLA-s between the MS previously belonging to the “communist block”, or the Nordic Convention.   

45 

 
 
 
                                                            
b.  Obliging  all  Member  States  to  ensure  that  foreign  persons  interested  in  legal 
proceedings may directly turn to competent persons or officials in their territory 
with a request to serve a document. 

The  two  measure  above  essentially  open  up  the  scope  of  application  of  direct  service 
which  is  less  prone  to  undue  delays  and  costs  than  other  service  methods.  As 
demonstrated  in  the  evaluation,  direct  service,  where  no  complications  arise  can  be  2 
times  quicker  than  service  by  post.  Allowing  access  to  these  services,  even  in  the 
territory of Member States where currently this is not a possibility, will allow the choice 
for parties  in a  proceeding and also contributes to fair  competition across the EU. This 
option may require adaptation in those Member States the procedural laws of which do 
not  know  the  method  of  service  of  a  document  by  a  judicial  officer,  official  or  other 
competent person. But, it should be noted that only a minority of the Member States is 
affected: although, in line with the communications of the Member States to Article 15 of 
the  Regulation  there  are  14  Member  States  acknowledging  direct  service  of  documents 
under  Article  15,  there  are  other  Member  States  where  the  laws  allow  for  a  direct 
delivery  to  the  addressee  by  a  professional  (competent  person),  such  as  a  solicitor 
(lawyer)  or  a  process  server.  For  example,  in  the  UK  jurisdictions  or  in  Ireland  the 
service of a document may be performed by lawyers. Furthermore, it is to be noted that 
in those Member States, which have to allocate this task to a certain type of professionals 
as  a  novelty  in  their  procedural  law,  this  requirement  does  not  directly  affects  the 
functioning of domestic procedural law, because this type of service should be provided 
only for the purpose of the Regulation, upon direct applications incoming from residents 
of the other Member States. In addition, any costs deriving by the introduction by and the 
adaptation  to  this  new  system  could  be  compensated  in  a  mid-term,  if  the  national 
legislator allows that the competent persons charge a fee for their services.   

7.2.5.  Strengthening quality of postal service under Article 14 of the Regulation 

The introduction  of a specific  uniform return slip (acknowledgment of  receipt) through 
which documents under the Regulation have to be served by postal service providers is 
expected to have an impact on the number of instances where service is deficient due to 
incomplete  acknowledgements  of  receipt  or  possible  ambiguities  as  to  who  actually 
received the documents in question. In this regard, strengthening the quality of service by 
post is also expected to reduce undue costs and delays for citizens caused when service is 
regarded  as  deficient.  From  experiences  of  Member  States  where  the  postal  service  of 
judicial documents is carried out on the basis of a special regime (different from the rules 
based on the framework of the Universal Postal Union), it can be expected an enhanced 
diligence from the postal service operators when delivering such documents. 

Such a measure might generate additional costs for the postal service operators who are 
requested to carry out the delivery of the document under Article 14. While majority of 
these  costs  would  in  principle  seem  to  be  of  one-off  nature,  mainly  concerning  the 
adaptation (installation of relevant procedures, training of personnel etc.), it is clear that 
these  might  be  very  varied  among  Member  States  due  to  the  different  use  of  letters  in 
general  and  of  such  letters  in  particular  as  well  as  to  the  different  financial  position  of 

46 

 
operators and their different cost structure. However, it would appear that with time the 
additional costs generated by the use this special acknowledgment of receipt would fade 
out,  on  the  basis  of  the  assumption  that  those  documents  have  to  be  delivered  by  the 
postal service providers anyway to the addressee, and the only difference to normal mail 
delivery  service  provided  by  these  operators  would  be  the  different  legal  basis  of  their 
duty. Although these additional costs of adaptation to the new obligations should not be 
overlooked,  it  is  also  important  to  note  that  in  the  vast  majority  of  the  Member  States, 
postal service providers have to comply already now with specific rules of their national 
civil procedural law (supplementing the provisions for letter post of the Universal Postal 
Union  Convention),  when  they  are  requested  to  deliver  judicial  documents  in  legal 
proceedings. In a number of Member States, the postal service providers are obliged not 
just to follow specific procedures when delivering, but they also have for example to use 
special  acknowledgment  of  receipts  (e.g  Hungary)  or  special  envelopes  (e.g.  Romania, 
Slovenia, Italy).  Obviously,  the  adaptation  of postal  service  providers  in  these Member 
States will be less cumbersome, since here they just have to change the already existing 
national regime to a European one.  

7.2.6.  Summary of the results of the assessment 

The 

results 

of 

the 

assessment 

can 

be 

summarised 

as 

follows:

Criteria 

Rating   Summary 

Assessment 

Effectiveness 

+2 

Efficiency 

+2 

Under the policy package, the effectiveness of the Regulation would be 
improved compared to the status quo. Mainly, the introduction of e-
CODEX as a mandatory communication tool between the agencies and 
the facilitation of electronic and direct service will contribute to the 
efficiency and speed of proceedings, lowering the burden of citizens and 
businesses. The contribution of the package to access to justice and 
legal certainty are also high with the inclusion of measures to clarify 
ambiguities and locate an addressee. 

The policy package is expected to generate moderate  costs for Member 
States but significant benefits for citizens and businesses involved in 
cross-border proceedings. The main cost driver for Member States is 
associated with the implementation of e-CODEX as a mandatory tool 
for transmitting and receiving agencies. Nevertheless, on balance the 
costs do not outweigh the benefits. 

Coherence 

+2 

Under the combined policy package, the coherence of the Regulation 
would be improved compared to the status quo. The amendments 
introduced by the policy package would positively contribute to both the 

47 

 
 
internal and external coherence of the Regulation. 

Impacts on 
fundamental 
rights  

+1.5 

The policy package would ensure the access to justice and an equal 
protection of the procedural rights, regardless the Member States. Its 
provisions on the electronic service of documents and the electronic 
communications would be aligned with the data protection standards 
required. 

Environmental 
impacts 

+2 

Overall rating 
and conclusion 

+1.9 

In the policy package is expected to decrease to a great extent the 
environmental impacts of the Regulation as it would introduce 
electronic provisions, such as the electronic service of documents and 
the use of electronic means to replace the paper-based communications 
between the designates authorities. 

The policy package performs better than the baseline scenario in 
relation to all of the assessment criteria. It brings benefits in particular 
by reducing costs and delays (e.g. through introducing an electronic 
communication system and encouraging the use of e-service of 
documents). In addition, negative environmental impacts are reduced 
and coherence with other legal instruments continues to be ensured. 

8.  CONCLUSIONS 

Based on the assessment and ratings provided in the previous section, the policy package 
performs  better  than  the  baseline  scenario  regarding  all  assessment  criteria.  Thus,  an 
amendment  of  the  current  Regulation  (as  well  as  a  horizontal  update  of  guidance 
necessary. 
justified 
documents) 

and 

is 

8.1.  REFIT (simplification and improved efficiency) 

REFIT Cost Savings – Preferred Option(s) 

Description 

Amount 

Comments 

Reduced costs by providing 
additional information for the 
e-Justice portal, awareness 
raising and training activities  

 

reduce  the  volume  of  instances 
in  which  defendants  are  served 
with  the  document  instituting 
proceedings through a fictitious 
method; 

  decrease of cases where default 

judgments are rendered  

Beneficiaries: citizens 

48 

 
 
  
Reduced costs by making 
available detailed information 
on the e-justice portal on the 
approach to costs of service of 
documents in the Member 
States (amount to be paid, 
accepted methods, timing of 
payment etc.) 

Annual cost savings for the 
use of e-CODEX as a 
mandatory tool for 
interactions between 
transmitting and receiving 
agencies 

Cost savings for the use of a 
specific return slip forservice 
by post under Article 14 of the 
Regulation 

 Reduced hassle costs through 
the provision of judicial 
assistance for requests for 
address enquiries 

Reduce delays caused by the 
lack/conflicting information 
about the costs 

Beneficiaries: citizens 

Beneficiaries: public authorities 
and citizens  
Public authorities are expected 
to save costs in relation to labour 
costs, paper, envelopes, printer 
cartridges, shelves, archiving 
material, and archiving space.  

Beneficiaries: citizens 
The costs for individual Member 
States would naturally be 
different depending on the 
number of requests they send 
under the Regulation. 

Beneficiaries: citizens 
 This typs of judicial assistance 
already exists in some legal 
systems.  

30 to 78 million EUR per year 
across the entire EU. 

Costs of adaptation falling on 
the postal operatives. Not 
quantifiable but however not 
considerable since the vast 
majority of the Member States 
already comply with special 
rules (different from the rules 
based on the framework of the 
Universal Postal Union), when 
serving judicial documents in 
domestic cases..  
These costs on postal operators 
will be outweighed by the 
benefits gained on the increase 
in instances of successful 
service of documents by post 

Provision of this type of judicial 
assistance  is  not  obligatory  for 
Member States, but depends on 
their  choice.  We  may  assume 
that  only  those  Member  States 
would  opt  for 
this  options, 
which  have  already  familiarity 
with  such  judicial  assistance 
of 
(based 
on 
international 
law). 
Consequently,  in  these  States 

sources 

public 

49 

 
 
investment 

no  additional 
is 
required (costs generated by the 
increase  of  number  of  requests 
should be marginal). 
Cost  savings  indirectly  appear 
in the result of a higher level of 
protection  of  the  rights  of  the 
defence.  More  cases  where  the 
defendant  is  actually  informed 
generate less default judgments. 

Gains to be expected up to 1.6 
million EUR across the EU per 
year 
As to the Provision of this type 
of judicial assistance is not 
obligatory for Member States, 
but depends on their choice (see 
row above). 

Beneficiaries: citizens and 
public authorities  

  Reduces number of cases where 
a document cannot be served 
due to its nature. 

Not quantifiable – data is not 
collected. 

Beneficiaires: citizens 

Reduced hassle costs through 
direct applications to national 
domicile registers via the e-
Justice Portal 

Costs savings related to the 
definition of “extrajudicial 
documents” 

Costs savings related to the 
obligation of information on 
right to refuse the acceptance 
of a document to be served 

  Reduces the number of 

instances where the addressee 
claims that his/her rights of the 
defence have not be respected; 

  Reduced costs by obliging 

  decrease in  the number of 

 

reduces legal uncertainty.  

Not quantifiable – data is not 
collected. 

Beneficiaires: citizens 

courts to send alert messages 
to electronic accounts of the 
defendants prior to the 
issuance of a default judgment  

cross-border proceedings where 
the defendant did not appear, 
and consequently decrease in 
the number of default 
judgements. This again results 
in less appeals and reliefs 
against such judgments on the 
basis of lack of proper service 
of the documents instituting the 
proceedings.  

Not quantifiable – data is not 
collected. 

Beneficiaires: citizens and 
indirectly judicial systems due to 
the decreased number of relief 
proceedings.  

50 

 
 
 
 
 
 
 
 uniform time period for the 
extraordinary relief against 
default judgments in Article 
19(4)  

  more legal certainty in terms of 
the available remedy leads to a 
better protection of the rights of 
the defence 

beneficiaries: citizens 

Reducing costs by codifying 
the principle regarding the use 
of fictitious or  substituted 
(alternative) methods of 
service of documents at 
domestic level: as a default 
rule, service should be 
attempted through the ways of 
the Regulation, if the 
addressee has its 
seat/residence in another MS.  

 

reduces legal uncertainty.  

Beneficiaires: citizens 

Costs savings by making 
acknowledging (under certain 
conditions) the (direct) cross-
border electronic service as an 
accepted method of serving 
documents  

  eliminates the legal obstacle in 

 

 

the way of cross-border 
electronic service of documents 
under the Regulation; 
reduced delays generated by the 
transmission of paper 
documents; 
if document is served through 
an ERDS, this reduces security 
problems relating to the 
transmission; 

Beneficiaires: citizens and 
public authorities 

Reduced costs by expending 
the scope of application of 
Article 15 to other legal 
professions 

  Greater choice of various ways 
of serving documents across 
borders to the citizens. 

  Avoid restrictions in terms of 
the scope of application of 
Article 15 

Beneficiaires: citizens 

The  initiative  is  included  in  the  Commission  Work  Programme  2018  under  the  REFIT 
initiatives in the Area of Justice and Fundamental Rights Based on Mutual Trust53. The 

53 Commission Work Programme 2018 – An agenda for a more united, stronger and more democratic 

51 

 
 
 
                                                            
 
Commission  also  looked  at  opportunities  to  simply  and  reduce  burdens  in  relation  to 
service of documents in particular at the level of the citizens and businesses involved in 
cross-border civil judicial proceedings. The nature of this legislation means that it applies 
to  all  cross-border  civil  proceedings.  The  beneficiaries  of  this  proposal  range  from 
citizens to legal professions and public administration. The impact assessment estimated 
annual cost savings generated by modernization of the procedures of the Regulation, in 
particular by the acceleration of the transmission of documents via eCodex and also by 
the  implementation  of  the  principle  'digital  by  default'.  Citizens,  business  and  public 
administration  will  also  benefit  from  reduced  hassle  costs  through  transmission  of  the 
documents  through  electronic  channels  between  the  designed  authorities  and  through 
direct electronic service of the documents in cross-border proceedings.  

In the framework of the REFIT Platform, stakeholders recommended to the Commission 
to explore possibilities to assist the actors concerned in cross-border legal proceedings in 
clarifying an address in another Member State, and also for service entailing the lowest 
cost. 

This  proposal  will  include  a  tool  necessary  to  identify  information  on  the  actual 
whereabouts of the addressee  if the initiator  of the service of the document either does 
not have any such information ("whereabouts unknown") or if the information at his/her 
disposal  turns  out  to  be  incorrect.  This  is  especially  quintessential  for  initiating  cross 
border litigation across the EU since a service of documents can only fulfil its objective if 
the  person  who  initiates  the  service  process  disposes  of  information  on  the  actual 
whereabouts of the addressee. The proposal will also limit the instances when service of 
documents is deficient through the introduction of a specific uniform return slip. This is 
useful  for  strengthening  the  quality  of  postal  service  and  for  reducing  undue  costs  and 
delays  for  citizens.  The  proposal  addresses  also  the  issue  related  to  the  insufficiency 
protection  of  the  defendant  against  the  effects  of  default  judgements,  by  providing  that 
agencies  and  central  bodies  should  send  alert  messages  through  all  means  of 
communication.  

The  proposal  establishes  a  framework  of  judicial  cooperation  aligned  with  the  Digital 
Market  Strategy.  It  will  contribute  to  improving  the  speed  and  the  efficiency  of  cross-
border  proceedings  by  reducing  the  time  spent  on  transmission  of  documents  between 
agencies  and  by  less  reliance  on  paper-based  communication.  The  impact  assessment 
estimated  that  the  implementation  of  e-Codex  as  a  mandatory  tool  for  transmitting  and 
receiving  agencies  could  amount  to  potential  savings  of  approx.  EUR  30  to  70  million 
per year across the EU. This solution would ensure a safe electronic communication and 
exchange  of  documents  between  the  users  of  the  system,  and  it  would  provide  for 
automatic  recording  of  all  steps  of  the  workflow,  as  well  as  would  ensure  the  genuine 
identity  of  the  participants.  The  proposed  Regulation  establishes  concurrently  that  the 

Europe, COM(2017) 650 final of 24.10.2017, Annex II point 10, p.4. 

52 

 
 
 
                                                                                                                                                                                 
delivery of a judicial or extrajudicial document to the recipient through a digital service 
which meets the requirements of the (qualified) ERDS under the eIDAS is accepted as a 
valid  means  of  service  of  documents,  which  will  contribute  to  the  acceleration  of 
transmission of documents. 

9.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? 

It is recommended that a sound monitoring system of the Regulation will be put in place, 
including a comprehensive set of qualitative and quantitative indicators, as well as a clear 
and  structured  reporting  and  monitoring  process.  This  is  important  to  ensure  that  the 
amended Regulation is implemented efficiently in the Member States and to verify if the 
Regulation is successful in achieving its specific objectives. 

In  order  to  provide  guidance  in  the  monitoring  process,  the  following  table  presents 
examples  of  indicators  that  may  serve  to  analyse  the  achievement  of  the  specific 
objectives. In terms of timing, an evaluation every 3-5 years would be useful in order to 
closely  monitor  the  evolution  of  the  impacts  and  the  context  in  which  the  Regulation 
operates. 

It  should  be  stressed  out  the  importance  of  the  European  Judicial  Network  in  civil  and 
commercial matters (EJN civil) in the implementation and application of the Regulations 
on Service of Documents. This forum is a key factor in getting relevant feedback from 
Member  States  (from  the  field)  on  the  application  of  the  various  instruments  and  in 
identifying the real practical problems as it brings together national ministries as well as 
the central authorities and agencies dealing with the implementation of the Regulations. 
In  the  past,  the  EJN  organized  annual  dedicated  meetings  on  the  analysis  of  the 
application  of  the  Regulations  on  service  of  documents  and  taking  of  evidence.  This 
practice will be continued in the future as well.  

The  EJN  also  created  a  working  group  on  assessing  options  of  accurate  data  collection 
with  regard  to  the  application  of  the  instruments,  this  forum  could  contribute  further 
work to analysing possibilities of collecting data on the Regulations. 

The  model  of  bilateral  (peer  to  peer)  meetings  between  central  bodies  of  the  Member 
States in the margins of the EJN contact point meetings, discussing and finding solutions 
to difficult cases, that has been established for other EU instruments, could be extended 
to  the  Regulations  on  Service  of  Documents  and  Taking  of  Evidence  (this  has  been  in 
fact proposed by some of the Member States in the latest meeting dedicated to the service 
of documents, in December 2017, in Tallinn). 

53 

 
 
 
Evaluation and monitoring framework 

Assessment 
criterion 

Indicator 

Horizontal aspects 

Number of cases in which the Regulation is applied 

Number of citizens and businesses affected by the application of the Regulation 

Further improving 
the efficiency and 
speed of judicial 
proceedings and 
reduce the burden 
for citizens and 
businesses 

Number of cases in which service through transmitting/receiving agencies is used 

Number of cases in which service through post is used 

Number of cases in which diplomatic channels are used 

Number of cases in which direct service is used 

Number of documents served electronically by transmitting/receiving agencies 

Number of cases in which direct electronic service is used 

Estimates on the length of proceedings in civil and commercial matters and reasons for undue 
delays 

Estimates on the costs of proceedings in civil and commercial matters  

Number of instances where e-CODEX could not be used for communication between the agencies 
and the reasons why 

Usefulness of information contained on the e-justice portal 

Improving access to  Number of cases where service attempts failed due to unknown address 

54 

Frequency 

Once per year 

At least for every 
evaluation 

Once per year 

Once per year 

Once per year 

Once per year 

Once per year 

Once per year 

At least for every 
evaluation 

At least for every 
evaluation 

Once per year 

At least for every 
evaluation 

Once per year 

 
 
justice and the 
protection of the 
procedural rights 
of parties to the 
proceedings 

Reducing legal 
uncertainty 

Number of cross-border default judgments passed 

Once per year 

Number of refusals of documents for language reasons 

Case law at national level pointing to uncertainties (e.g. lack of clarity on certain concepts) 

Case law at EU level pointing to uncertainties (e.g. lack of clarity on certain concepts) 

Once per year 

At least for every 
evaluation 

At least for every 
evaluation 

55 

 
 
 
ANNEX 1: PROCEDURAL INFORMATION 

1.  Lead DG, AGENDA PLANNING AND WORK PROGRAMME 

This  impact  assessment  and  the  related  initiatives  are  a  responsibility  of  the 
Directorate-General for Justice and Consumers (JUST). 

The project has been added to the 2018 European Commission work programme54 under 
the section 'An Area of Justice and Fundamental Rights Based on Mutual Trust' as well 
as the Regulatory Fitness and Performance Programme under 'Priority 7 – Simplification 
and  Burden  Reduction  for  upholding  the  rule  of  law  and  linking  up  Europe’s  Justice 
Systems'.  It  envisages  "modernising  services  taking  into  account  new  technologies,  to 
promote the use of  more direct and cheaper methods of judicial assistance (such as the 
service  by  post)  and  reinforce  the  right  of  the  defence  for  parties  with  residence  in 
another Member State"55. 

The aim to improve the framework of judicial cooperation within the EU is also in line 
with the objectives of the Commission set by the Digital Single Market Strategy56. In the 
context of e-Government the Strategy expresses the need for more actions to modernise 
public  (including  judicial)  administration,  achieve  cross-border  interoperability  and 
facilitate easy interaction with citizens. 

2.  Organisation and timing 

Work  on  the  preparation  of  this  initiative  started  on  24  October  2017  with  the  2018 
European Commission work programme. The impact assessment was prepared with the 
involvement of JUST C.3 (Data protection) as well as the following Services through the 
Inter-Service Steering Group, chaired by the Secretariat General:  

the Commission's Legal Service;  

Directorate-General for Informatics; 

Directorate-General for Communications Networks, Content; 

Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs; 

54  COM(2017) 650 final, Annex II. 
55  Regulatory Fitness and Performance Programme - REFIT Scoreboard Summary of 24 October 2017, 

p. 29. 

56  COM(2015) 192 final, p. 16. 

56 

 
 
 
 
 
                                                            
Directorate-General for Communication; 

Directorate-General for Employment; 

Directorate-General for Economic and Financial Affairs; 

Directorate-General for Migration and Home Affairs; 

Directorate-General for Research and Innovation; 

Directorate-General for Taxation and Customs Union and 

Directorate-General for Competition. 

The  Steering  Group  is  going  to  have  three  meetings.  A  first  meeting  took  place  on  24 
October 2017. The following ISCG meetings are scheduled:  

•  4 April 2018:  

2nd  meeting  on  draft  evaluation  reports  and  draft  impact 
assessment studies 

•  Beginning of May 2018:   3rd meeting on the draft legislative proposals) 

On  each  occasion,  the  members  of  the  Steering  Group  are  given  the  opportunity  to 
provide  comments  orally  and/or  in  writing  on  the  draft  versions  of  the  documents 
presented. 

3.  Consultation of the Regulatory Scrutiny Board 

The  impact  assessment  report  is  to  be  submitted  to  the  Regulatory  Scrutiny  Board  on 
9 April 2018. The Regulatory Scrutiny Board reviewed the draft impact assessment at its 
meeting of 3 May 2018 and delivered a positive opinion with comments on 7 May 2018. 
DG Just took into account the Boards recommandations and the report explains better the 
relationship  between  the  two  initiatives  (Tacking  of  Evidence  Regulation)  for  judicial 
cooperation and the wider context. The major problems and the baseline are now better 
identified and explained. The explanation of subsidiarity of the instrument and of the EU 
value added was enhanced. Morevover, the conclusions of the evaluation regarding the 
effectiveness have been further developed and the policy options now focus on the main 
elements  (electronic  communication)  and  the  assessment  of  these  main  issues  has  been 
developed in the main text.  

4.  Evidence, sources and quality 

The  Commission  consulted  widely  and  received  input  from  various  sources  for  this 
impact assessment work. 

Evidence used in this impact assessment was gathered following a consultation strategy, 
which  included  an  external  study,  a  consultation  with  renowned  experts  in  the  field 
(practitioners  as  well  as  members  of  academia)  through  the  Expert  group  on 

57 

 
 
Modernisation  of  Judicial  Cooperation  in  Civil  and  Commercial  Matters  and  a  public 
consultation through an online questionnaire accompanied by a consultation document . 
The  public  consultation  strategy  is  described  in  detail  in  Annex  2.  A  workshop  with 
Stakeholders is going to be held on 16 April 2018 for further consultation of the impact 
on them. 

On 4 May 2018 the Commission is going to hold a meeting with Member States' experts 
on international civil procedure to inform them of the planned initiative and the solutions 
envisaged. 

Furthermore,  the  following  discussions  have  taken  place  within  the  framework  of  the 
European Judicial Network in civil and commercial matters (EJN): 

30  November–1  December  2017,  Tallinn:  dedicated  meeting  of  the  EJN 

• 
addressing practical problems and possible improvements of the Regulation. 

14–15  November  2016:  dedicated  meeting  of  the  EJN  addressing  practical 

• 
problems and possible improvements of the Regulation 

20  November  2013:  meeting  of  the  EJN  dedicated  to  the  evaluation  of  the 

• 
application of the Regulation on taking of evidence 

In addition, the following studies and reports haven been taken into consideration: 

2017: 

European  Parliament  resolution  of  4  July  2017  with  recommendations  to  the 
• 
Commission on common minimum standards of civil procedure in the European Union 
(2015/2084(INL) 

An  evaluation  study  of  national  procedural  laws  and  practices  in  terms  of  their 
• 
impact on the free circulation of judgments and on the equivalence and effectiveness of 
the  procedural  protection  of  consumers  under  EU  consumer  law  (launched  by  the 
Commission,  carried  out  by  a  consortium  led  by  MPI  Luxembourg)  –  final  report 
delivered in June 2017. 

2016:  

• 
Study  containing  a  comparative  legal  analysis  of  laws  and  practices  of  the 
Member States  on service of document (launched by the Commission,  carried out by a 
consortium composed of University Firenze, University Uppsala and DMI)  – published 
in November 2016 ; 

2013: 

• 
Report of the Commission 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) 858 final; 

58 

 
2012: 

Study on the application of Council Regulation (EC) No 1393/2007 on the service 
• 
of judicial and extrajudicial documents in civil and commercial matters (launched by the 
Commission, carried out by Mainstrat and the University of the Basque Country) – final 
report adopted in June 2012. 

The Commission services  have  taken into account  the observations from all  the above-
mentioned sources in the impact assessment. 

59 

 
ANNEX 2: STAKEHOLDER CONSULTATION INCLUDING THE OUTCOME 
57
OF THE PUBLIC CONSULTATION ON REGULATION (EC) NO 1393/2007 

The  Commission  consultation  strategy  included  many  different  and  complementary 
ways of consulting stakeholders: 

  Member States gave their opinion within two dedicated meetings of the European 
Judicial Network addressing practical problems and possible improvements of the 
two  EU  Regulations  (14-15  November  2016,  Bratislava  and  30  November  –  1 
December  2017,  Tallinn). 
the 
representatives of the Member States was organized on 4 May 2018. 

  In  addition,  a  dedicated  meeting  with 

  Dedicated  meeting  with  stakeholders  (on  16  April  2018).  It  was  a  workshop 
composed of selected stakeholders with particular interest in issues relating cross 
border  legal  proceedings.    Industry  and  business  organisations,  Trade  Unions, 
consumer organisations, professionals' associations and academic institutions and 
think tanks with the widest possible representation across EU or worldwide were 
invited with a view to share their views on the initiative.  

  Expert group meetings (on 8-9 January 2018, 6 March 2018, 27-28 March 2018 
and 24 April 2018). The Expert group on Modernisation of Judicial Cooperation 
in Civil and Commercial Matters was created in the end of December 2017 (the 
detailed list of experts is available in the Register of Commission expert groups 
on 
accessible 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetai
l&groupID=3561&news).  

  The Inception Impact Assessment was published on 7th December 2017, inviting 

stakeholders' feedback (but it did not draw any response). 

  A single public consultation was launched to address both Regulation 1393/2007 
on service of documents and Regulation 1206/2001 in order to receive input from 
all the concerned stakeholders, and in particular, those which are engaged in cross 
border legal proceedings. Members States were also invited to provide their input. 
The public consultation was launched on 8 December 2017 and ended on 2 March 
2018  (which  complies  with  the  minimum  standard  of  12  weeks  for  public 
consultations of the European Commission). 131 contributions from 27 MS were 
submitted and the country with the overall contributions was Poland, followed by 

57 Regulation (EC) No 1393/2007 57of 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 
and repealing Council Regulation (EC) No 1348/2000 

60 

 
 
 
  
 
 
 
 
 
                                                            
Germany,  Hungary  and  Greece.  Approximately  64%  of  replies  were  made  on 
behalf  of  the  judiciary,  while  the  rest  were  mainly  from  associations  of  legal 
professions  at  a  national  level  or  European  lever,  notaries,  bailiffs,  NGOs, 
academics. In addition, 13 replies were received from the public authorities of 10 
Member  States  (Austria,  Czech  Republic  Estonia,  Finland,  France,  Germany, 
Hungary, Latvia, Poland and UK). 

  A Commission study providing a comparative legal analysis of laws and practices 
of the Member States on service of documents  was carried out  by a consortium 
(University  Firenze,  University  Uppsala  and  DMI)  –  published  in  November 
201658; 

  An  evaluation  study  of  national  procedural  laws  and  practices  in  terms  of  their 
impact  on  the  free  circulation  of  judgments  and  on  the  equivalence  and 
effectiveness of the procedural protection of consumers under EU consumer law 
was  launched  by  the  Commission  (carried  out  by  a  consortium  led  by  MPI 
Luxembourg) – final report delivered in June 201759. 

Most of the stakeholders supported the idea of amending 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 
and repealing Council Regulation (EC) No 1348/2000. 

1. Application of the Regulation 

1.1 General approach 

In  general,  when  asked  whether  they  have  been  involved  in  cross-border  judicial 
proceedings,  73  %  of  the  stakeholders  responded  affirmatively.  More  than  70 %  of  the 
respondents have been involved in cases in which the Regulation had to be applied. The 
procedural rights of the addressee in the other Member State were adequately respected 
in course of the proceedings, 49 % did not give an answer. 

58 

at 
http://collections.internetmemory.org/haeu/20171122154227/http://ec.europa.eu/justice/civil/files/studi
es/service_docs_en.pdf 

Available 

59 Available at https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-

01aa75ed71a1/language-en.  

61 

 
 
 
 
 
 
 
                                                            
 
 
1.2 Difficulties in the application of the regulation 

1.2.1  Address enquiries  

The MPI study underlined that most of the legislations of the Member States establish the 
duty of the serving authority to make specific efforts in order to locate the domicile of the 
addressee. When Regulation (EC) No 1393/2007 is applied, such an effort is not always 
done and forms are turned back to the requesting authority, either as unsuccessful or as 
incorrect.  As to the closed questions in the interviews within the study, 98 respondents 
support the idea that “Service of document in the EU needs to be improved with a better 
harmonization of the methods of service”, against 22; 101 answers favour the idea that 
“Service of document in the EU needs to be improved with a common solution when the 
domicile  of  the  defendant  is  unknown”,  against  only  11  contrary  opinions;  finally,  88 
respondents  believe  that  “Service  of  document  in  the  EU  needs  to  be  improved  with  a 
common solution as to who can be served instead of the defendant”, whereas only 16 do 
not60.  

The  public  consultation  asked  the  stakeholders  to  indicate  if  regulation  should  ensure 
greater transparency in terms of finding the whereabouts of addressees who are residing 
in the territory of other Member States, e.g. the e-Justice Portal could be used as a tool 
for  accessing  such  type  of  information  in  other  Member  States  (provided  that  such 
information is publicly available there). More than 90 % of those (70% coming from the 
judiciary) providing an opinion found that the relevant  pages  of the European e-Justice 
Portal  provided  proper  information  to  the  parties  to  a  proceeding  or  the  recipients  of 
judicial  documents  about  their  rights  and  obligations.  This  shows  the  importance  of 
concise,  up-to-date  and  easily  accessible  information  to  citizens  regarding  the  judicial 
cooperation in civil and commercial matters and how well the e-Justice Portal addresses 
these needs.  

The Regulation on service of documents should ensure that there is greater transparency in 
terms  of  finding  the  whereabouts  of  addressees  who  are  residing  in  the  territory  of  other 
Member States. E.g. the e-Justice Portal could be used as a tool for accessing such type of 
information in  other Member States  (provided that such information is publicly  available 
there): 

In addition, in the dedicated meetings with the Member States, some of them conveyed 
that there in an advantage in making it easier to search existing registers, including via 
the e-Justice Portal: UK, Netherlands, Cyprus, Austria, Germany. 

The  public  consultation  asked  the  stakeholders  also  about  the  idea  of  introducing  a 
special judicial assistance for that purpose (if this is requested by a court in the Member 
State of origin in accordance with the law of that State). 55 % of the respondents giving 
their  opinion  strongly  agreed  with  this  idea  and  33  %  tended  to  agree  with  it.  On  the 
contrary, only 7 % tended to disagree, while only 5 % strongly disagreed.  

It is to be noted that the proportion of supporters of the idea of judicial assistance for 
finding the whereabouts of a person in another Member State is even higher than the one 
of supporters for providing access to information publicly available in other Member 
States. 

60 Study of MPI Luxembourg, paragraph 173, p. 82. 

62 

 
                                                            
1.2.2. Costs 

The  public  consultation  asked  the  stakeholders  whether  the  serving  of  documents  in 
another  Member  State  under  the  ways  provided  by  the  Regulation  is  too  costly.  More 
than  half  of  the  respondents  stating  their  opinion  tended  not  to  see  the  service  of  a 
document under the Regulation as too costly, but the percentage of respondents tending 
to agree went up to 24 %. 

Moreover,  stakeholders  indicated  in  the  MPI  study  that  there  are  jurisdictions  where 
bailiffs or huissiers de justice are responsible for performing service of documents sent 
from another Member State and are entitled to charge their fees (Belgium, Netherlands, 
Luxembourg and France; paying the fees, additionally, is in many cases troublesome for 
foreign  residents)  whereas  in  other  Member  States  the  performance  of  service  in  the 
requested Member state is free61. 

1.2.3. Delays  

Most of the stakeholders consulted in the MPI study considered that the Regulation (EC) 
No 1393/2007 does not work smoothly, especially in some Member States. On the other 
hand  neighbouring  countries  such  as  the  Nordic  countries  and  the  Benelux  seem  to 
encounter less trouble in cooperation62.  

However, 53% of the respondents to the public consultation answered that the time used 
for  service  of  documents  in  another  Member  State  was  adequate  (cca  43%  from  the 
judiciary) while 33% of the stakeholders tended to disagree.  

60
40
20
0

The time used for the service of a document in another Member 
State was adequate, there were no delays compared to the 
deadlines foreseen by the two Regulations 

51 

Strongly agree Tend to agree

32 
Tend to
disagree

Strongly
disagree

Other

6 

Public Authority

8 

Do not know /
No opinion
18 

No answer

12 

1.3 Possible improvement: Electronic communication 

Representative Organisation of a legal profession

According  to  the  MPI  study,  some  stakeholders  indicated  that  in  part  of  the  Member 
States  electronic  communications  are  still  not  a  real  possibility  (Belgium,  Greece, 

Lawyer

Bailiff

Judiciary

61 Study of MPI Luxembourg, paragraph 129, p. 55. 

62 Study of MPI Luxembourg, paragraph 129, p. 55. 

63 

 
 
 
 
 
 
 
 
 
 
                                                            
Luxembourg,  Malta  and  The  Netherlands).  In  most  Member  States,  where  electronic 
service is possible it remains an option conditioned by the parties’ willingness to use it 
(Croatia,  France,  Hungary,  Latvia,  Poland,  Romania,  Slovakia)  and  the  use  of  secured 
electronic  signature  is  a  common  requirement.  Some  Member  States  have  created 
specific platforms to perform electronic exchange of judicial documents in a secure way 
(ERV  in  Austria,  Digital  Post  in  Denmark,  DEMail  in  Germany,  Liteko  in  Lithuania, 
LexNet in Spain), and, among them, a few have established its use as mandatory, at least 
for  lawyers  and  other  legal  professionals  (Austria,  Spain).  This  policy  option  is  also 
consistent  with  the  obligation  of  businesses,  lawyers  and  other  professionals  to  have  a 
certified e-mail address that can be used for judicial proceedings or to be registered at the 
relevant official platform:  it exists only  in a few MS (Austria,  Croatia, Denmark, Italy, 
Lithuania and Spain).  

Stakeholders from Denmark and Spain indicated that in their countries the possibility of 
serving the claim on the defendant electronically is not envisaged. This possibility exists  
in  a  few  Member  States  (but  only  effective  if  there  is  acknowledgement  of  receipt-; 
Finland, in an indirect way –recipient receives a notice indicating that the documents are 
available  at  a  specific  server-;  Germany,  if  the  addressee  has  expressly  agreed  to  it. 
However, indication of the email address solely on the letterhead is not sufficient.  

The  public  consultation  asked  the  stakeholders  whether  it  was  not  possible  to  transmit 
electronically a request for service or a document to be served to the designated agency 
of  another  Member  State.  What  stands  out  from  the  answers  to  this  question  is  the 
particularly high amount of answers not stating an opinion. One could conclude from that 
that  the  majority  of  practitioners  have  not  yet  tried  to  transmit  a  request  for  service 
electronically.  The  high  percentages  of  answers  strongly  agreeing  or  tending  to  agree 
with the above statement show that the majority of those who have tried to do so did not 
succeed. 

the  default 

should  become 

However,  the  public  consultation  shows  that  when  asked  whether  the  use  of  electronic 
means 
the 
authorities/agencies involved in cross-border judicial cooperation in civil matters, 61% of 
the  respondents  agreed  with  this  proposal  and  39%  of  them  tend  to  agree,  while  only 
12% tend to disagree.  In this respect, also the majority of the experts favoured the idea 
that  electronic  communication  should  be  the  default  means  of  communication  between 
the designated authorities of the Member States.  

communication  between 

standard 

Council of Bars and Law Societies of Europe (CCBE) emphasised that it would like to 
see  the  e-CODEX  infrastructure  being  used  only  in  cross-border  e-Justice  initiatives 
based on interconnection of judicial systems as well as communications by stakeholders 
in justice, such as servicing of documents or exchanging evidence. While the e-CODEX 
system currently follows the legal and interoperability frameworks of the EU eSignature 
legislation  and  the  EU  e-Signature  Standards  Framework,  its  e-delivery  concept  is 
currently  not  based  on  any  standards,  since,  for  the  time  being,  there  is  no  standard  in 
place  for  electronic  registered  delivery  service.  As  long  as  there  is  no  such  standard, 
users, including lawyers, will have to adapt to the specific technical e-delivery solution of 
e-CODEX, which requires additional technical measures and resources. 

Moreover, this organization stresses out there is currently no EU standard format for end-
users (including lawyers) regarding (a) what documents and files they are expected to be 
able  to  read,  and  (b)  to  what  formats  they  should  convert  evidence  at  their  disposal  so 
that the courts and other participants in litigation can work with such files. Unless there 

64 

 
are such standard formats and easily available software libraries to use, it is very difficult 
to  determine  and  satisfy  the  requirements  of  all  end-users.  Therefore,  the  systems, 
formats, and software lawyers will be expected or forced to use when documents to be 
served  or  evidence  obtained  are  transmitted  or  exchanged  through  electronic  channels, 
should  be  easily  capable  of  integrating  with  the  technical  tools  lawyers  currently  work 
with. In this respect, it is important to take into account that lawyers are not consumers, 
but business users and their IT systems are very diverse. 

In the MPI study, no action at all on the side of the EU is unmistakably not an option for 
the respondents to the interviews: 79 would reject inaction, and only 8 would agree. As to 
what  such  action  should  be,  to  the  question  “Do  you  think  that  the  Regulation  should 
introduce  a  mandatory  mechanism  of  electronic  service  for  cross  border  cases”,  71 
answers  go  for  “no”  while  44  would  support  it;  the  figures  underpin  electronic  service 
clearly as optional, and non-mandatory, as shown by the 99 voices in favour against only 
23 against. 

2. Use of the means of transmission and service of document under the Regulation   

According to the MPI study63, different stakeholders indicated that Regulation (EC) No 
1393/2007 is applied in different ways in the Member States:  

  some countries prefer recourse to the central bodies (Article 4): Greece, Malta; 
  some  show  preference  for  post  service  with  acknowledgment  of  receipt  (Article 

14): Finland, Germany, Luxembourg, Poland, Spain, Sweden;  

other optional methods of service are not accepted uniformly:  

 

 

transmission by consular or diplomatic channels is not allowed (Article 13): it is 
not  admitted  in  Italy  or  Spain,  unless  addressed  to  nationals  of  the  other  MS 
concerned;  
the  same  applies  to  direct  service  of  documents  (Article  15):  for  instance, 
Bulgaria, Latvia.  

The  role  of  bailiffs  and  judicial  officers  as  national  authorities  is  also  considered 
differently. Indeed, who is to be considered as transmitting and receiving authority may 
differ: the courts in most Member States, but also bailiffs in some jurisdictions (France, 
Italy, The Netherlands, Belgium) and/or public prosecution offices (Greece, Belgium). 

The public consultation asked the stakeholders if they prefer to serve documents through 
the receiving authorities of the other Member States, pursuant to Section 1 of Regulation 
(EC) 1393/2007 to the use of alternative methods of serving documents (such as service 
through  post  (Article  14)  direct  service.  The  answers  to  this  question  were  quite 
balanced.  31  %  of  the  respondents  stating  an  opinion  tended  to  prefer  an  alternative 
method of service or direct service, while around 29 % tended to prefer service pursuant 
to  Section  1  of  the  regulation.  22  %  strongly  preferred  service  through  the  receiving 
authorities,  whereas  18  %  strongly  preferred  an  alternative  method  of  service  or  direct 
service. 

63 Study of MPI Luxembourg, paragraph 129, p. 54. 

65 

 
 
                                                            
Interestingly,  neither  the  judiciary,  nor  the lawyers,  nor  the bailiffs  tend  to  have  strong 
other.
preference 

method 

one 

the 

for 

or 

I prefer to serve documents through the receiving authorities of the 
other Member States, pursuant to Section 1 of Regulation (EC) 
1393/2007, to the use of alternative methods of serving documents 
(such as service through post (Article 14) or direct servi 

35
30
25
20
15
10
5
0

Other

Public Authority

Representative Organisation of
a legal profession

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

No
answer

Do not
know /
No
opinion

Bailiff

Lawyer

However,  the  public  consultation  showed  that  26  %  of  the  respondents  stating  their 
opinion  strongly  declared  that  they  experienced  a  problem  when  a  judicial  or 
extrajudicial  document  was  served  in  another  Member  State  via  post  (in  line  with  the 
method  foreseen  in  Article  14  of  the  Regulation  (EC)  No  1393/2007).  41  %  of  the 
respondents tended to give the same answer, while 27 % of them tended to disagree with 
disagreed. 
the 

statement 

strongly 

and 

% 

6 

I experienced a problem when a judicial or extrajudicial document 
was served in another Member State via post (in line with the 
method foreseen in Article 14 of the Regulation (EC) No 1393/2007 ) 

39 

24 

25 

21 

12 

6 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

No Answer

Do not
know/ No
opinion

2.1  Alternative/fictitious service methods (Article 14) 

66 

 
 
 
 
 
According  to  the  MPI  study64,  many  stakeholders  indicated  that  when  the  address  is 
unknown  (or  no  longer  valid)  the  most  frequent  system  is  service  by  publication, 
although  differences  arise  concerning  the  sort  and  the  place  for  such  a  publication: 
official journals, court boards, court’s websites, town halls or even newspapers. In some 
Member States, fictitious service is followed by the appointment of a curator to defend 
the defendant’s position, although it is not a common practice (Austria, Romania).  

Other stakeholders stated that apart from service by publication, other frequent methods 
of fictitious service are envisaged by the legislation of some Member States: sending the 
document to the public prosecutor (Belgium, Italy); posting the notification on the door 
or  in  the  mailbox  of  the  respondent  (Bulgaria,  Netherlands,  Slovenia);  sending  letters 
(normal  and  with  acknowledgement  of  receipt)  to  the  last  known  address  (France, 
Luxembourg).  

Some Member States have introduced specific precautions and limits to fictitious service 
when the addressee is domiciled abroad: Denmark accepts service  by publication if the 
relevant foreign authority denies or fails to comply with a request to serve the document 
abroad;  in  Finland  fictitious  service  is  not  available  to  serve  documents  in  proceedings 
that are being carried out outside Finland; Germany only admits fictitious service within 
the country and in proceedings here the Regulation does not apply.  

In  the  public  consultation,  all  the  stakeholders  representing  the  Member  State  which 
responded  (Estonia,  Latvia,  Poland,  Germany,  Finland,  Austria  and  Czech  Republic) 
agreed  that  service  of  a  judicial  or  extrajudicial  document  should  always  be  attempted 
first through the channels provided for by the Regulation (EC) No 1393/2007 if the place 
of residence of the addressee in another Member State is known to the person initiating 
the service.  

Service of a judicial or extrajudicial document should always 
be attempted first through the channels provided for by 
Regulation (EC) No 1393/2007  if the place of residence of 
the addressee in another Member State is known to the 
person initiating the se 

44 

49 

9 

2 

20 

4 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

No answer

Do not
know/ No
opinion

. 

2.2 Direct service (Article 15) 

64 Study of MPI Luxembourg, paragraph 131, p. 55. 

67 

 
 
                                                            
Direct service is a very useful option that is left open by the Regulation, allowing parties 
to  bypass  the  complex  and  long  process  of  transmission  of  documents  between 
designated agencies, as well as the uncertainty of post service. However, as showed the 
study carried by the University of Firenze, only some Member States grant to parties the 
possibility to perform direct service65. According to the declarations rendered by Member 
States,66  direct  service  according  to  Article  15  is  permitted  in  Belgium,  Cyprus, 
Denmark,  France,  Finland,  Germany  (with  limitations)67,  Greece,  Italy,  Luxembourg 
(under  condition  of  reciprocity),  Malta,  Netherlands,  Portugal  (arts.  228ff.  CPC), 
Scotland,  Sweden.  It  is  not  permitted  in  Austria,  Bulgaria,  Czech  Republic,  Estonia, 
Hungary,  Ireland,  Latvia,  Lithuania,  Poland,  Romania,  Slovenia,  Slovakia,  Spain, 
England. 

In the public consultation, stakeholders were asked whether competent persons as bailiffs 
or  process  servers  could  be  directly  requested  from  abroad  in  all  Member  States  to 
perform service of documents in theirs territory. 35 % of the respondents taking a stand 
strongly  agreed  with  this  idea,  while  46  %  tended  to  agree.  14  %  of  them  tended  to 
disagree, whereas 4 % strongly disagreed. 

3. Refusal of acceptance of the a document (Article 8) 

Some Member States require or encourage claimants to provide a sort of “precautionary” 
translation of the relevant  documents before accepting them to  be sent to the requested 
MS  –  e.g.,  Denmark,  Germany,  Romania  or  Spain.  In  other  Member  States  the  court 
itself  will  translate  the  writ  of  summons  (Finland,  Slovakia).  It  is  not  always  clear  to 
what  extent  all  the  annexes  have  to  be  translated,  although  they  might  be  very 
voluminous (the practice in Denmark, for instance, is to request the plaintiff to procure a 
translation  for  these  documents,  if  perceived  as  necessary);  finding  translators  in  some 
MS of the official languages of other MS might prove to be difficult some times68. 

In the public consultation, many of the stakeholders support the idea of giving indications 
in the text (recital or article) which help the assessment of the courts in determining the 
existence  of  a  language  skill  of  the  recipient  in  the  case  of  refusal.  Supports:  Estonia, 
Finland,  Austria,  France,  Czech  Republic,  Bavaria,  Lower  Saxony.  Disagrees:  Latvia, 
Poland.  

65 Study containing a comparative legal analysis of laws and practices of the Member States on service of 
documents  (launched  by  the  Commission,  carried  out  by  a  consortium  composed  of  University 
Firenze, University Uppsala and DMI) – published in November 2016, p.4. 

66Information 
are 
home/judicialatlascivil/html/ds information en.htm. 

available 

at 

http://ec.europa.eu/iustice 

68 Study of MPI Luxembourg, paragraph 129, p. 55. 

68 

 
 
 
                                                            
 
 
 
The mechanism in the Regulation on service of documents relating to 
the right of the addressee to refuse the acceptance of a document on 
the basis of its language (Article 8) should be designed in a way which 
helps the court to determine the languages wit 

62 

42 

5 

0 

13 

6 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

No answer

Do not
know/ No
opinion

4. Extraordinary remedy against default judgements (Article 19) 

The  service  of  documents  -  and  in  particular  the  service  of  documents  instituting 
proceedings  -  is  directly  linked  to  the  right  to  be  heard  and  to  the  guarantees  of  due 
process and fair trial. In the study carried by University Firenze, stakeholders indicated 
that  in  the  majority  of  Member  States,  a  default  judgment  accepting  the  claimant's 
requests  may  be  rendered  against  a  defaulting  party  and  in  any  case,  also  in  those 
Member States in which the judge may only grant a judgment in so far as the claim has 
been proved by the claimant; an absent party loses the opportunity to bring its own case 
and  evidence.  However,  stakeholders  took  notice  that  the  time  limit  to  file  an  ordinary 
appeal  or  an  opposition  against  a  default  judgment  differs  from  a  Member  State  to 
another69.  

In the public consultation, many of the stakeholders 43 % of the respondents giving their 
opinion  strongly  agreed  with  the  idea  of  ensuring  a  uniform  level  of  protection  for 
defendants from another Member State who did not appear before court and 47 % tended 
to agree. On the other hand, 8 % tended to disagree and 2 % strongly disagreed. 

69 Study containing a comparative legal analysis of laws and practices of the Member States on service of 
documents  (launched  by  the  Commission,  carried  out  by  a  consortium  composed  of  University 
Firenze, University Uppsala and DMI) – published in November 2016, p. 187-209. 

69 

 
 
 
 
 
                                                            
The Regulation on service of documents should ensure a uniform level of protection 
for defendants from another Member State who did not appear before the court. E.g. 
the time limit for the availability of an extraordinary remedy against any default 
judgme 

42 

46 

27 

8 

2 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know/ No
opinion

3 

No answer

70 

 
 
ANNEX 3: WHO IS AFFECTED AND HOW? 

1. Practical implications of the initiative 

1.1 IMPACT ON PUBLIC AUTHORITIES 

The right balance between the costs and benefits would determine the ultimate outcome 
of  the  Regulation.  Currently,  Member  States  incur  similar  costs  concerning  the 
communication with transmitting/receiving agencies, serving documents through post or 
judicial  officers,  providing  information  to  the  e-Justice  portal  and  processing  requests 
under  the  Regulation.  Accordingly,  national  authorities  benefits  from  the  judicial 
cooperation, mutual recognition and standardised approach to serving documents across 
borders.  New  policy  package  implies  subsequent  costs  and  additional  benefits  to  the 
current system.  

Member States will be required to provide additional information for the e-Justice portal 
awareness  raising  and  training  activities.  Therefore,  new  fields  would  be  added  for 
clarification concerning the costs for the service of documents by post or direct service 
means. Additionally, the implementation, development and maintenance of e-CODEX, as 
the  default  channel  of  electronic  communication,  would  also  require  extra  costs  from 
national  authorities  alongside  co-financing  from  the  European  Commission.  However, 
some  Member  States  already  possess  a  pilot  version  of  e-CODEX,  which  they  may 
reinstall and upgrade for the current purposes. Moreover, such electronic system follow a 
multifunctional  approach  for  other  digitalized  EU  mechanisms  in  order  to  avoid 
unnecessary  expenses.  Furthermore,  specific  international  acknowledgement  of  receipt 
shall be systematically used by transmitting agencies and postal services, thus automating 
this element of the procedure. Importantly, this technology already exists and is used in 
some  Member  States,  which  limits  implementation  costs.  Furthermore,  receiving 
agencies will be asked to make a quick check of the addressee location in order to avoid 
unnecessary delays of court proceedings.  

All abovementioned costs are in keeping with the advantages which Member States are 
expected  to  gain  under  the  policy  package.  Thus,  the  implementation  and  use  of  e-
CODEX would reduce costs compared to the use of postal services - including expenses 
related  to  paper,  envelopes,  printer  cartridges,  toner  or  ink,  shelfs,  archiving  materials 
and space. This would also save personnel time, which can be used instead to deal with 
the cases, thus limiting delays in court proceedings and increasing overall efficiency.   

71 

 
 
 
 
 
 
1.2 IMPACT ON LEGAL PROFESSIONALS 

Legal  professionals  are  expected  to  incur  initial  costs  to  get  acquainted  with  and 
understand  the  new  legislation  and  practices,  so  as  to  analyse  the  changes  and 
possibilities  to  serve  the  documents.  However,  some  of  these  costs  are  expected  to  be 
forwarded  to  clients.  Judges  would  also  need  time  to  get  familiar  with  new  rules. 
Nevertheless these costs will only be incurred initially for both groups, and for those who 
frequently manage cases under the Regulation, the proceedings are expected to become 
more efficient and less time consuming. 

In particular, lawyers will benefit from the implementation of e-CODEX and Electronic 
Registered  Delivery  Service  (ERDS),  which  facilitates  the  process  of  dealing  with 
different  cases.  Therefore,  the  proceedings  are  becoming  more  efficient  and  less  time 
consuming. Consequently, lawyers, under the policy package, would be able to handle a 
higher  number  of  cases,  even  though  the  client  fees  for  each  individual  case  would  be 
reduced. Therefore, qualified lawyers would gain benefits from the increased number of 
cases and from higher quality of service.  

1.3 IMPACT ON BUSINESS AS SERVICE PROVIDERS 

Different  businesses  will  get  diverse  consequences  from  the  application  of  the 
Regulation. Some traditional means of communication will to be used less in the future. 
Therefore,  such  providers  will  incur  negative  impacts.  In  particular,  postal  service 
providers are expected to have less income due to the number of evidences taken using 
electronic means of communication; nevertheless, many postal services already make use 
of  electronic  communication.  Paper  and  office  supply  providers  and  paper-based 
archiving companies are also expected to incur a reduction in sales. Furthermore, bailiffs 
and private process servers would incur decreased demand. Their revenues are thus likely 
to  be  reduced  due  to  the  implementation  of  e-CODEX  and  Electronic  Registered 
Delivery Service. This is why some Member States currently oblige to provide service of 
documents  only  through  bailiffs.  In  such  cases,  they  will  need  to  adjust  to  the  new 
electronic communication in order to be efficient in legal proceedings.  

Meanwhile,  some  businesses  are  expected  to  benefit  from  the  implementation  of  the 
policy  package.  First  of  all,  providers  of  IT  consulting  services  could  gain  a  profit  of 
around  1  million  Euros  for  helping  to  implement  the  e-CODEX  system.  Furthermore, 
judicial authorities deploying new technologies would also require services from internet 
and telecommunication providers, cloud storage service providers and archiving service 
providers.  All  these  different  businesses  are  likely  to  gain  revenues  under  the  revised 
Regulation. Furthermore, maintaining these new technologies will also require assistance 
from  businesses  in  order  to  operate  the  system  and  provide  all  necessary  maintenance 
supply.  

72 

 
 
 
1.4 IMPACT FOR CITIZENS AND BUSINESS (STAKEHOLDERS) 

Taking  advantages  of  higher  legal  certainty  and  mutual  trust  in  cross-border  services, 
citizens  and businesses are also likely  to  incur  increases in  the cost of court  fees, legal 
services, service methods, etc. The trend for a continued increase in cross-border cases is 
likely  to  increase  costs  related  to  court  fees  and  service  methods  and  to  become  more 
time consuming for the parties.  

Nevertheless, the digitalization of the service of documents would have a positive impact 
on  citizens  and  businesses  as  parties  of  legal  proceeding  and  they  would  gain  benefits 
without  major  additional  costs.  The  development  and  establishment  of  e-CODEX,  as  a 
modern  electronic  communication,  would  make  the  procedures  more  efficient.  Such 
consequences are especially important for businesses as it saves time.  

Additionally, the implementation of e-CODEX would decrease legal fees paid to lawyers 
for their services. Indeed, legal professionals will spend less time on the cases, allowing 
citizens  and businesses to  have  less costly  and less  stressful  proceedings. Nevertheless, 
average costs paid to lawyers will depend on other factors, and might not fully pass on 
this positive impact.  

1.5 IMPACT ON ENVIRONMENT 

An environment impact will be incurred under both the baseline scenario and the policy 
package.  

Under the baseline, the necessity to use paper-based communication by the receiving and 
transmitting  agencies  would  require  costs  or  papers,  toner  or  ink.  Additionally,  postal 
services  involve  relevant  transport,  including  gas  emissions  and  fuel  usage,  envelopes, 
wrapping,  etc.  Nowadays,  some  of  these  sources  are  non-renewable,  which  have  a 
negative impact on environment.   

The  policy  package  would  provide  generally  positive  impact  on  environment,  even 
though some negative consequences will remain.  

On  the  one  hand,  transmitting  agencies  would  be  obliged  to  use  a  label  indicating  the 
nature  of  the  document  in  order  to  increase  the  general  awareness  for  addressee.  Such 
label would have to be printed and distributed.  

On the other hand, the establishment of the electronic service of documents as one of the 
methods to serve documents would avoid unnecessary printed documents and its physical 
displacement.  Postal  service  will  hence  be  less  frequently  resorted  to,  with  a  positive 
impact on environment through reduced gas emissions and fuel for transport.  

In addition, the development and implementation of electronic communication via CEF 
eDelivery  would  substitute  paper  –based  communication.  Therefore,  this  wide  EU-tool 
among the Member States would serve for different purposes, such as taking of evidence, 

73 

 
 
which would increase the positive impact; thus reducing both the usage of toner or  ink 
and the creation of non-renewable resources (special booklets for guidance on how to fill 
in  special  forms  would  no  more  be  needed).  .Additionally,  stakeholders  reported  that 
reprinted and duplicated prints often occur: the probability to waste such resources would 
thus be reduced.  

74 

 
 
I. Overview of Benefits (total for all provisions) – Preferred Option 

Description 

Decrease the volume of cases in which 
the foreign defendant is actually not 
informed of the institution of the 
proceedings against him and a default 
judgment is issued 

Amount 

Direct benefits 

1)  The  preferred  package  of  options  will  decrease  the 
number  of  cases  in  which  the  documents  instituting 
proceedings  are  served  on  the  foreign  defendant 
"domestically"  in  the  Member  State  of  origin,  through 
an alternative or fictitious method of service in national 
instead  of  making  an  attempt  to  reach  the 
law, 
defendant abroad and deliver him/her the document.  

2)  The  preferred  package  will  decrease  cost  by  ensuring 
more  transparency  with  regard  to  the  access  to 
information  on  the  whereabouts  of  addressees  to  be 
served,  whose  address  is  not  known  or  where  the 
known address proves to be incorrect or obsolete.  
The tools to be provided by the Member States (based 
on their choice) include: 
a) providing judicial assistance upon request for foreign 

courts for clarifying the address of a person; 

b)  ensuring  that  applications  to  national  domicile 
registers  in  another  Member  State    are  accepted 
electronically, through the e-Justice Portal  

c) providing detailed guidance or information on the e-
Justice  Portal on  available  tools  for  locating  a  person 
in their country.  

Comments 

The measures of the Policy Package in 1) to 3) improve the chances that the 
defendant gets actually informed about a proceeding instituted against 
him/her in another Member State in due time to defend him/herself before 
the court. By this the number of default judgments (judgments taken in 
absence of the defendant) will decrease, which will avoid unnecessary 
additional litigations in the appeal or relief phase.   

The direct benefit for the defendants (citizens) concerned would be the 
saving of the costs of these additional proceedings aiming at setting aside 
the default judgments. Assuming that such a relief would require 5.000 
euro on average, and assuming that the number of proceedings where 
default judgments are issued decreases by only 10% as a result of the 
proposed measures, the benefit would be   

For this estimates the following assumptions are used: 

  Number of all cases of serving documents: 3.2 million /year; 
  Number of instances where the cross-border proceedings end up 

in a default judgment: 30%70, 960 000; 
Expected decrease of the volume of default judgments (by 10%) 
will mean: 96 000 less cases in which default judgment and follow-
up litigation could be avoided: 
This results in 480 000 000 euro saving for the citizens (and also 

 

 

70 Some interviewees in Estonia and Belgium of the economic study estimated that the issuance of default judgments in cross-border cases occurs in approximately 70% of cases. But, 
not all types of cases with cross-border implications may end up in default judgments (see family law matters) we shall treat this assumption with caution. That is why we used an 
estimate of 30%  

75 

 
 
 
 
 
 
 
                                                            
3)  The  preferred  package  of  options  will  contribute  to 
greater protection of procedural rights, especially of the 
right  of  defence,  by  obliging  courts  to  send  alert 
messages  to  available  electronic  accounts  of  the 
defendants  prior 
issuance  of  a  default 
judgements against them. 

the 

to 

for the justice systems)  

Eliminate unnecessary costs for 
cross-border service of 
documents 

1) to 3) we may expect 480 million euro saving for citizens 
(and justice administrations. ) 

By ensuring better standard in informing the addressees 
about their right of refusal to accept a document on the 
basis of its inappropriate language, and by clarifying the 
roles and legal consequences of this right, we may assume 
that the instances in which a translation of the document 
to be served is unnecessarily required will decrease to a 
certain amount.  

Direct saving for citizens: 82 euro / page to be translated, 
and 2-4 weeks which is the time consumed by a 
translation of a judicial document.  

The costs for translation of a document are generally based on the 
number of pages to be translated, thus it is not possible to give a 
general estimate for an average costs for a translation of a 
document to be served. However, the average cost for a translation 
per page is approximately EUR 82 based on the 2018 budget of the 
Translation Centre for the Bodies of the European Union (CdT).71 For 
a 10 page document (which could be set as a rough estimate of the 
average length of a document to be served), translation could thus 
be upwards of EUR 800. In terms of timing for the translation 
however, this can have an even greater impact since translation 
could take approximately 2 – 4 weeks for completion. This adds 
additional delays onto the already quite burdensome process. 

Eliminate unnecessary costs for cross-
border service of documents 

By making e-Codex mandatory for agencies and 
authorities designated under the Regulation as a default 
tool for communication and exchange of documents.  

 

Direct benefit is the time saved: 4 to 8 days of the 
tradition transmission of the documents by post will be 

71 http://cdt.europa.eu/en/documentation-type/budget  

76 

 
 
 
 
 
 
 
 
                                                            
reduced practically to zero (by submitting the document 
through the e-CODEX channel, it appears immediately on 
the receiver side). 

Direct cost saving by the avoidance of use of paper when 
the document is created and delivered in electronic form.   

By introducing and using the specific return slip 
(acknowledgment of receipt) by post under Article 14, the 
number of instances when service of documents is 
deficient, because the information returned to the sender 
is not satisfactory, will considerably decrease. By this we 
avoid unnecessary follow-up attempt of serving the same 
documents.  

We may estimate saving up around 2.200 000 euros by 
avoiding unnecessary postal service.  

Indirect benefits 

.Number of all cases of serving documents: 3.2 million /year; 

 
  Number of instances where service is attempted by post 

(under Article 14): 55%, 1 760 000 

  Number of instances where service of document has to be  
repeated due to the deficiency of the service by post, 
assuming 25% of instances will end up in errors: 440 000 

  Assuming that the improvement will affect 50% of the 

deficient attempts: 220 000  

Eliminate unnecessary costs for service 
of documents  

By definition of extrajudicial documents, the number of 
case where the documents cannot be served would 
decrease. 

The definition of extra-judicial documents is currently unclear and affects 
the daily application of the Regulation. 

Through broader scope of application of Article 15. . 

Extending the scope of application of Article 15 is so that also 
transmitting agencies could make use of this method of service, will 
make the service of documents faster and will avoid that only 
persons "interested in" the legal proceedings may have recourse to 
this method of service.  

77 

 
 
 
 
 
 
 
 
 
 
By making acknowledging (under certain) conditions 
the (direct) cross border electronic service as an 
accepted method of serving of documents 

This will eliminate the legal obstacle in the way of cross-border 
electronic service of document. 

78 

 
  
 
ANNEX 4: ANALYTICAL METHODS 

In  order  to  estimate  the  quantitative  aspects  of  current  and  future  application  of  the 
Regulation (EC) 1206/2001, it is necessary to have an overview on the number of legal 
proceedings  in  which  it  was  applied,  as  well  as  on  the  use  of  different  channels  for 
taking evidence under the Regulation. For this purpose, a model has been prepared by 
Deloitte which includes calculations and projections on these aspects. The model is based 
on  primary  and  secondary  data,  which  have  been  combined  in  order  to  build  robust 
estimates on the application of the Regulation.  

BRIEF DESCRIPTION OF THE MODEL  

The main purpose of the model is to estimate the number of legal proceedings in which 
the Regulation (EC) 1206/2001 is applied or will be applied in the future, both under the 
baseline scenario and  the policy package.  In  addition,  it serves  to  estimate the share of 
the different channels under the Regulation.  

Primary data (i.e. statistics) concerning the number of legal proceedings in which the 
Regulation  (EC)  1206/2001  has  been  applied  is  not  readily  available.  Therefore, 
estimates  have  been  made  based  on  secondary  information  available  for  the 
timeframe 2000-2017, as well as expert assumptions, which feed into the model. These 
concern the following types of legal proceedings: 

Insolvencies, e.g. relevant in relation to B2B or B2C claims; 

  Divorces, legal separations, and parental responsibility proceedings; 
 
  Successions and wills; 
  Property  transactions,  e.g.  immovable  property  in  B2B,  B2C,  and  C2C 

constellations; 

  Contractual obligations, e.g. liability in B2B or B2C contracts; 
  Administrative  cases,  e.g.  concerning  disputes  between  citizens  and  authorities; 

and 

  Compensation  for  damages,  e.g.  subsequent  to  criminal  cases  or  as  part  of 

liability proceedings. 

Both a bottom-up and a top-down approach have been used to estimate the respective 
data.  In  this  case,  a  bottom-up  approach  means  that  the  estimates  are  largely  based  on 
available  Eurostat  data  or  data  from  national  statistical  offices,  as  well  as  qualitative  / 
quantitative information available in secondary sources. The number of legal proceedings 
was estimated based on this data and respective assumptions. In contrast, the top-down 
approach  uses  quantitative  information  available  through  the  CEPEJ  database  on  the 
overall  number  of  legal  proceedings  and  attributes  the  individual  case  load  to  specific 
types of legal proceedings based on assumptions. 

The following table indicates the main data source for the estimates, as well as the type 
of approach used per type of legal proceeding. 

79 

 
 
Table 2: Types of legal proceedings, respective data sources, and approach used 

Type of legal 
proceeding 

Source for estimate 

Approach used 
for estimate 

Bottom-
up 

Top-
down 

Divorces, legal 
separations, and 
parental responsibility  

  Eurostat, e.g. concerning the overall 

X 

number of divorces 

  Brussels IIa Impact Assessment72, 

e.g. concerning the number of cross-
border divorces and legal separations 
between 2008 and 2012 

Insolvencies 

  Eurostat, e.g. concerning the number 

X 

of businesses in the EU 

  Insolvency Impact Assessment73, e.g. 
concerning the share of insolvencies 
with cross-border elements 

Successions and wills 

  Eurostat, e.g. concerning the number 

X 

Property transactions 

Contractual 
obligations 

of deaths 

  Successions & Wills Impact 

Assessment74, e.g. concerning the 
share of deaths with an "international 
component" 

  CEPEJ data75 on the caseload of 
Member States’ courts in 2014 
concerning land register cases 

  Eurostat data concerning the 

population in EU Member States 

  CEPEJ data on the caseload of 
Member States’ courts in 2014 
concerning litigious & non-litigious 
civil & commercial cases  
  Eurostat data concerning the 

X 

X 

72  See:  Study  on  the  assessment  of  Regulation  (EC)  No  2201/2003  and  the  policy  options  for  its  amendment.  See: 

http://edz.bib.uni-mannheim.de/daten/edz-k/gdj/15/bxl_iia_final_report_analtical_annexes.pdf  

73 SWD(2012) 416 final. Impact Assessment accompanying the document “Revision of Regulation (EC) No 1346/2000 

on insolvency proceedings”. See: http://insreg.mpi.lu/Impact%20assessment.pdf  

74  SEC(2009)  410  final.  Impact  Assessment  accompanying  the  Proposal  for  a  Regulation  on  jurisdiction,  applicable 
law,  recognition  and  enforcement  of  decisions  and  authentic  instruments  in  matters  of  successions  and  on  the 
introduction 
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52009SC0410&from=EN  

European  Certificate 

Inheritance. 

See: 

of 

of 

a 

75  Council  of  Europe  (2016):  Evaluation  of  European  Judicial  Systems.  Dynamic  data  set  concerning  civil  and 
https://public.tableau.com/views/2010-2012-

commercial 
2014Data/Tables?:embed=y&:display_count=yes&:toolbar=no&:showVizHome=no  

matters. 

See: 

80 

 
 
 
 
 
 
                                                            
Type of legal 
proceeding 

Source for estimate 

Administrative cases 

Compensation for 
damages 

Source: Deloitte 

population in EU Member States 

  CEPEJ data on the caseload of 
Member States’ courts in 2014 
concerning administrative cases 

  Eurostat data concerning the 

population in EU Member States 

  CEPEJ data on the total caseload of 
Member States’ courts in 2014 

Approach used 
for estimate 

Bottom-
up 

Top-
down 

X 

X 

In addition to the sources identified above, the estimates draw on expert assumptions, e.g. 
in  relation  to  the  share  of  legal  proceedings  that  relate  to  cross-border  cases,  or 
qualitative information gathered as part of the interviews, e.g. approximate share of cases 
in  which  the  Regulation  (EC)  1206/2001  was  applied.  A  detailed  description  on  the 
assumptions is provided in the next section Underlying assumptions and data input. 

The  assumptions  were  inserted  in  a  complex  Excel  model  developed  by  Deloitte  in 
which  different  types  of  data  from  various  sources  have  been  linked  and  extrapolated. 
The following graph visualises the high-level approach used for the development of the 
estimates  and  indicates  illustrative  types  of  data,  the  level  of  detail  at  which  they  are 
available,  the  respective  sources,  as  well  as  specific  examples  of  indicators  that  have 
been used. 

81 

 
 
 
Figure 3: High-level approach used to develop the estimates 

Source: Deloitte 

The assumptions were subject to an internal, in-depth peer review process. As part of 
this process, different assumptions were introduced in the model to compare the different 
outcomes. The result of this sensitivity analysis was that the assumptions provided in the 
table below seem to be, at this stage, the most reasonable and pragmatic based on the best 
data available in relation to this specific subject. 

UNDERLYING ASSUMPTIONS AND DATA INPUT 

a)  Baseline and key assumptions 

As  previously  explained,  the  model  works  with  different  assumptions  indicated  in  the 
table below. 

Table 3: Key assumption used in the model 

Type of estimate 

Sources 

Assum
p-tion 

Commis
-sion 

Intervie
ws 

Expert 
assump-
tion 

Other 

82 

 
Type of estimate 

Sources 

Assum
p-tion 

Commis
-sion 

Intervie
ws 

Expert 
assump-
tion 

Other 

Basic statistical estimates 

Share of divorces accompanied by a 
parental responsibility proceeding  

Additional parental responsibility 
proceedings per divorce  

Share of businesses that go insolvent  

Share of cross-border insolvencies  

Average number of legal proceedings per 
insolvency  

Share of cross-border cases of 
all incoming cases 

Minimu
m 

Maximu
m 

Speed of growth of "cross-border CAGR"  

Share of deaths with an 
"international component" 

Minimu
m 

Maximu
m 

25% 

25% 

1% 

25% 

1.0 

4% 

15% 

1.5 

1% 

25% 

X 

X 

X 

X 

X 

X 

Average 

13% 

Share of "international deaths" for which a 
will is available and can be contested in 
court  

60.4% 

X 

Share of property transactions with 
"international component"  

1% 

Share of contractual obligations with an 
"international component"  

9.3% 

X 

Share of all given cases in 
which the Regulation (EC) 
1206/2001 was applied 

Taking of evidence 

Shares of cases 

Share of cases in which VC is 
used 

Minimu
m 

Maximu
m 

Average 

0.5% 

5% 

4% 

Minimu
m 

Maximu
m 

Average 

10% 

40% 

25% 

83 

X 

X 

X 

X 

X 

X 

X 

X 

X 

 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
Sources 

Assum
p-tion 

Commis
-sion 

Intervie
ws 

Expert 
assump-
tion 

Other 

Minimu
m 

Typical 

Maximu
m 

Average 

Minimu
m 

Maximu
m 

Average 

Minimu
m 

Maximu
m 

5% 

20% 

80% 

35% 

2 

12 

7 

80% 

90,000 
€  

270 € 

500 € 

1,000 
€ 

Average 

750 €  

X 

X 

X 

X 

X 

X 

X 

Type of estimate 

Share of cases in which direct 
ToE was performed 

Delays 

Number of months it takes to 
take evidence across borders 

Costs 

Share of paper based 
communication 

Cost of VC equipment 

Transcript of recording 

Translation costs 

Source: Deloitte 

b)  Key sources 

The  assumptions  were  built  on  the  data  gathered  during  the  interviews  with 
practitioners  both  at  EU  and  national  level  carried  out  as  part  of  this  study,  desk 
research as well as the expertise of the Deloitte study team and the external legal expert. 

c)  Construction of the baseline and core policy simulations 

Based  on  the  assumptions  and  key  sources  previously  explained,  the  number  of  legal 
proceedings in which the Regulation was and was not (but could have been) applied was 
estimated for the period 2000-2017 (i.e. the baseline). 

In addition to the construction of the baseline, the Deloitte study team has developed the 
quantitative  estimates  in  terms  of  the  number  of  legal  proceedings  in  which  the 

84 

 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
Regulation  is  expected  to  be  applied  between  2017  and  2030,  as  well  as  the  use  of 
different channels under the Regulation.  

The  projections  are  based  on  the  same  data  and  assumptions  than  for  the  baseline.  A 
growth  model  has  been  developed  based  on  which  the  expected  development  of  the 
estimates in the future is projected. The model used in this study is based on the S-curve 
concept which is widely applied in macro-economic modelling. The concept is visualised 
below. 

Table 4: Illustrative S-curve development of the number of legal proceedings in which 
the Regulation was applied 

Source: Deloitte 

Within this concept, the growth of a certain set of data over time, e.g. the number of legal 
proceedings in which the Regulation (EC) 1206/2001 was applied, increases over time up 
to  a  point  at  which  the  growth  rate  eventually  declines  and  the  data  only  grows 
marginally (the curve “flattens out”). 

Such a curve can be modelled with a logistic function. The general formula used for the 
logistic function is the following. 

𝑃(𝑡) =  

𝑃0 ∗   𝑒𝑟−𝑡 
1 +   𝑃0(𝑒𝑟−𝑡 − 1)/𝑃𝑀𝐴𝑋

The formula contains the following elements: 

  P represents the data point at a given time t; 
  P0 represents the data point today; 
  PMAX represents the data point that can reasonably be achieved until 2030; and 

85 

 
 
 
  r represents the parameter by means of which the data point is expected to increase 

annually; and 

  e is the mathematical that is the base for the natural logarithm (‘Euler’s number’). 

The curve can be modelled in such a way that it does, however, not resemble the S-curve 
in  a  given  period  of  time,  e.g.  by  mathematically  stretching  its  development  over  a 
timeframe that exceeds the scope of this study (i.e. the flat part of the curve will not be 
reached by 2030). This has been used within this study as it can reasonably be expected 
that societal trends and increasing judicial cooperation will remain over the next twelve 
years until 2030. Thus, the graphs depicted in this section do not encompass the typical 
“flattening out” part of the S-curve. 

This  has  been  the  basis  for  estimates  on  the  application  of  the  revised  Regulation 
under  the  selected  policy  package.  The  values  applied  to  the  baseline  scenario  have 
been  used  as  the  start  value  for  the  modelling  of  the  application  of  the  revised 
Regulation. It  was  assumed  that  there  would  not  be any  significant  changes  in  the  first 
two  years  at  least,  as  the  legislative  changes  would  first  need  to  be  adopted  and 
implemented.  

For  the  time  after  that,  the  assumptions  concerning  the  speed  of  growth  have  been 
adjusted  based  on  the  qualitative  assessment  of  the  selected  policy  options.  For  every 
aspect of the policy option, it was assessed how and to what extent it would impact on 
the  number  of  cases  in  which  the  Regulation  (or  specific  channels)  have  been  applied, 
based on expert judgment. 

Overall, it was assumed that the application of the Regulation would increase based on 
the envisaged policy changes. Again, it was assumed that the development would be S-
curve shaped.  

Assumptions have been made for the overall application of the revised Regulation in the 
future as well as the application of individual channels, as follows: 

  Overall  application  of  the  revised  Regulation  (including  the  new  channels 
added): 67.5 – 90% of all cross-border cases in civil and commercial matters; 
  Application  of  the  channels  that  exist  currently  under  the  Regulation  (Art. 
10ff  and  Art.  17):  15  –  20%  of  all  cross-border  cases  in  civil  and  commercial 
matters; 

  Application of direct Taking of Evidence under Art. 17 of the Regulation: up 

to 40% of all cases in which the Regulation is applied;  

  Use of videoconferencing under Art. 17: up to 70% of all cases in which Article 

17 of the Regulation is applied.  

The estimates in the graphs provided should not be read as concrete projections but rather 
as ‘corridors of estimates’ in which the ‘actual’ concrete number of legal proceedings is 
likely to be. 

d)  Sensitivity  of  model  results  and  likely  robustness  to  changes  in  the  underlying 

assumptions and/or data input 

86 

 
As previously explained, as part of the in-depth peer review of the model, assumptions 
were  introduced  to  compare  the  different  outcomes.  These  assumptions  were  based  on 
the expertise and judgement of the Deloitte study team. In addition, the estimations were 
provided in corridors in the graphs in order to take into account possible variations that 
might occur. 

87 

 
 
 
 
ANNEX 5: TABLES WITH ASSESSMENT OF OPTIONS FOR PROBLEMS 

Table 5: Assessment of options for problem 1 “Lack of clear information on the channels (if any) that are available within each Member State 
for assistance on: locating an addressee, clarifying an address” 

Effectiveness 

Problem 1: Lack of clear information on the channels (if any) that are available within each Member State for assistance on: locating an addressee, 
clarifying an address 
Option 
1.1.1 Providing 
information on the e-
Justice Portal on the 
tools and options for 
citizens and business 
available at national 
level for locating an 
addressee 

Proportionality 
  This 

Efficiency 
Benefits: 

Rating  Conclusion 

  This 

option 

0.5 

to 

option  would 
improve access to justice 
for 
and 
businesses 
citizens  who  in  this  case 
their 
would  have  at 
disposal 
the  necessary 
means  for  locating  an 
address  and  hence  be 
enabled  to 
the 
legal proceeding. 
It  would  also  speed  up 
procedures, as businesses 
and  citizens  would  be 
able to find out about the 
tools 
national 
registries) 
domicile 
available  in  one  country, 
the 
whether 
and 

launch 

(e.g. 

 

  Concerning the  benefits, 
this  soft  measure  would 
provide  information  (if 
shared  by  the  Member 
the 
States) 
transmitting 
agencies, 
businesses  and  citizens 
to  support  them  on  the 
localisation 
an 
addressee. 

of 

 

Costs: 

  This option would entail 
costs 
provision 
of 
information  for  Member 
States.  It  would  mean 
that they have to  upload 

88 

that 

is 
it 
as 
proportionate 
represents 
a  natural 
evolution  of  the current 
it 
in 
situation 
would 
the 
entail 
improvement  of  the  e-
Justice 
by 
more 
including 
information  concerning 
Member  States  national 
systems. 
entail 
It 
does 
additional  efforts 
for 
implementation  to  any 
stakeholders. 

portal 

not 

This option would not 
entail significant costs 
for the Member States, 
and would be 
proportionate to the 
objective to be 
achieved. 
Nevertheless, in term 
of effectiveness, this 
option would not 
contribute to the 
efficiency nor the 
speed of the 
procedures. 

 
 
 
Problem 1: Lack of clear information on the channels (if any) that are available within each Member State for assistance on: locating an addressee, 
clarifying an address 
Option 

Rating  Conclusion 

Proportionality 

Efficiency 

to  the  e-Justice  Portal 
information  on  national 
tools/options 
for 
locating  an  addressee  in 
their  territory  (and  to 
ensure 
such 
that 
information is up-to-date 
at all times).  

to 

national 

Effectiveness 
agency  has 
receiving 
it. 
access 
Nevertheless, 
although 
the  claimant  finds  out 
through  the  information 
on  e-justice  that  there  is 
a 
domicile 
registry  in  place  in  the 
Member 
States 
concerned,  there  is  no 
guarantee 
the 
receiving  agency  would 
have access to it, and if it 
does,  how  promptly  the 
information 
requested 
shard. 
be 
would 
Therefore,  the  claimant 
might suffer some delays 
to  a  reduced  or 
due 
complete  lack  of  access 
to  the  tools  and  options 
available.  

that 

1.2 Member States will 
be obliged to facilitate 
address enquiries 
through (at least) one 
of the following 

  This 

option  would 
facilitate access to justice 
of  the  parties,  as  there 
would  be  effective  tools 
at  the  disposal  of  right-

Benefits: 

  This  option  presents 
benefits  for  the  parties 
other  Member 
from 
States,  compared  to  the 

2 

  The  flexibility  of  the 
system,  which  enables 
that  the  Member  States 
in  compliance 
define 
national 
their 
with 

This option contributes 
to a smooth 
cooperation between 
the authorities for the 
locate an address or 
clarify it. It suggests a 

89 

 
Problem 1: Lack of clear information on the channels (if any) that are available within each Member State for assistance on: locating an addressee, 
clarifying an address 
Option 
alternatives tools: 

Rating  Conclusion 

Proportionality 

Efficiency 

the 
procedural  regime 
way  in  which  they  are 
provide 
ready 
to 
foreign 
assistance 
to 
a 
is 
right-seekers, 
the 
guarantee 
intervention 
is 
propositional  and  does 
not  go  beyond  what  is 
to  achieve 
necessary 
these 
specific 
objectives. 

that 

practical and flexible 
approach where 
authorities would 
make use of the tools 
available in order to 
clarify or correct 
addresses in civil 
proceedings. 

 

Effectiveness 
other 
from 
seekers 
Member  State  to  clarify 
the  address,  facilitating 
service of documents. 
In  addition,  this  option 
would  contribute  to  the 
efficiency  and  speed  of 
the  proceedings,  as  there 
will  be  higher  chances 
that  the  address  of  the 
recipient is located. 

a) providing judicial 
assistance upon 
request of 
courts/transmitting 
agencies from other 
Member States; 

b) accepting requests 
from individuals to 
national domicile 
registers which are 
transmitted through 
the e-justice portal;  

 c) providing detailed 
information (with 
appropriate 
hyperlinks) on 
available tools in the 
territory of the 
Member State 

current  situation,  since 
these, since these parties 
will  receive  assistance 
or  efficient  guidance 
from  the  other  Member 
State    even  when  the 
address is not known.  

Costs: 

  Although 
the  options 
under 
ii.  will 
i.  and 
generate  some  costs  on 
the  side  of  the  public 
administrations, 
these 
costs  will  be  marginal, 
assuming that only those 
Member  States  will  opt 
for  these  options  who 
have 
similar 
already 
tools in place. 
-  One  may 
count, 
however, 
an 
increased  number  of 
requests  (under  tool 
i.)  or  applications 
(under 
ii.) 
compared to what the 
State 
Member 

tool 

on 

90 

 
 
Problem 1: Lack of clear information on the channels (if any) that are available within each Member State for assistance on: locating an addressee, 
clarifying an address 
Option 

Rating  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

concerned  currently 
deal  with.  But,  even 
in  the  case  under  ii., 
the  domicile  register 
of  the  Member  State 
easily 
can 
compensate 
the 
additional  workforce 
to  address 
needed 
extra 
those 
the 
applications  by 
a 
of 
introduction 
fee 
reasonable 
the 
corresponding 
service  (nothing 
in 
the  EU  Regulation 
a 
would 
prevent 
Member  State 
to 
charge  a  fee  for  such 
a service).. 

Preferred policy 
measure  

The preferred policy measure owould be option 1.2 as it would contribute most to the efficiency and speed of the 
proceedings, at the same time also facilitating the access to justice for the parties. It does entail some costs but it is 
comparatively still the option with the least costs, which are, however, outweighed by the benefits. The measure is 
proportionate. 

Table 6: Assessment of options for problem 2 “Unclear definition of extra-judicial documents” 

91 

 
 
Proportionality 

  This 

of 

as 

option 

is 
it 
proportionate 
represents 
the 
continuation of the status 
quo and only requires the 
more 
provision 
information 
the 
already existing e-Justice 
Portal. 
entail 
It 
does 
additional 
for 
implementation  by  any 
stakeholders. 

not 
efforts 

on 

 

Rating  Conclusion 
0.5 

This option would provide 
some guidance on the e-
Justice portal to the 
authorities concerning the 
“extra-judicial” documents. 
Although it would not entail 
significant costs and would 
be proportionate, it would 
fail to address the problem 
as it would not bring a legal 
definition of the concept.  

Efficiency 
Benefits: 

  Under 

Effectiveness 

Problem 2: Unclear definition of extra-judicial documents 
Option 
2.1 Providing 
information on the 
e-Justice Portal 
concerning the types 
of national 
documents in the 
Member States 
which are 
considered as 
"extra-judicial" 
documents  

this  option, 
transmitting  agencies 
would  have  available 
information  on  what 
national 
of 
type 
are 
documents 
regarded 
as 
“extrajudicial 
in  each 
documents” 
State. 
Member 
the 
Therefore, 
a 
likelihood 
being 
document 
its 
to 
rejected  due 
nature  would 
be 
reduced,  contributing 
to  the  efficiency  and 
speed 
of 
up 
proceedings.  

of 

does 

  Nevertheless,  this  soft 
measure 
not 
provide  a  harmonised 
on 
definition 
“extrajudicial 
documents”. Based on 
the  findings  from  our 
clear 
fieldwork, 
of 
definition 

a 

guidance 

  As  explained  under 
effectiveness, 
this 
option  would  bring 
to 
some 
involved 
stakeholders 
cross-border 
in 
proceedings  as 
they 
would  be  aware  of 
extra-judicial 
which 
documents 
be 
can 
served  in  the  different 
Member States. 

Costs: 

  This 
option  would 
of 
costs 
entail 
provision 
information 
for  Member  States.  It 
would  simply  mean 
that 
to 
they  have 
upload  to  the  e-Justice 
Portal  information  on 
which  documents  they 
regard 
“extra-
as 
judicial”. 

92 

 
 
Problem 2: Unclear definition of extra-judicial documents 
Option 

Effectiveness 

Efficiency 

is 
the 
of 

extrajudicial 
not 
documents 
first 
amongst 
concerns 
the 
stakeholders involved. 
Nevertheless,  there  is 
a  need  to  provide  a 
clear  definition 
in 
order  to  ensure  the 
certainty 
legal 
concerning 
this 
concept, and reduce in 
the 
sense 
this 
discrepancies  between 
States 
Member 
slowing  down 
the 
proceeding. 

2.2.1 Codifying the 
CJEU case law  by 
specifying in the 
Regulation that its 
application is not 
restricted to 
documents issued by 
a court or a state 
authority (for 
instance a notary), 
but includes also 
private documents if 

some 

  This 

legislative 
measure would reduce 
the  legal  uncertainty 
to 
extent, 
bringing the necessary 
clarifications 
concerning 
the 
definition  of  extra-
judicial documents.  
  As  explained  above, 
this  would  contribute 

Benefits: 

  As 

the 

explained 

in 
this 
effectiveness, 
option would enable to 
legal 
decrease 
The 
uncertainty. 
involved 
stakeholders 
service  of 
in 
the 
in  cross-
documents 
proceedings 
border 
would benefit from this 

93 

Proportionality 

Rating  Conclusion 

2.5 

  This  option  would  entail 
the 
introduction  of  a 
legal  measure  codifying 
the  definition  of  “extra-
judicial 
documents”. 
This  measure  would  be 
proportionate,  as  a  legal 
measure  is  necessary  to 
bring  the  necessary  legal 
certainty  concerning  this 
concept. 

This option would clearly 
contribute to the legal 
certainty and the efficiency 
and speed of the 
proceeding. In addition, the 
implementation costs are 
not expected to be very 
high. Lastly, this measure is 
necessary to provide a clear 
definition and avoid any 
misunderstandings and 
confusions.  

 
Efficiency 

Proportionality 

Rating  Conclusion 

Effectiveness 

Problem 2: Unclear definition of extra-judicial documents 
Option 
formal service is 
required in order to 
prove or protect 
rights of the 
claimant. 

the 
to 
times  a 
number  of 
document  cannot  be 
served  due 
its 
nature.  Therefore,  the 
speed  of  the  process 
would be improved. 

decrease 

to 

clear  definition,  and 
would  be  aware  of 
what 
of 
documents  should  be 
considered  as  “extra-
judicial”. 

type 

Costs: 

to 

  There  would  also  be 
the 
the  new 
and 
text 
/ 
raising 
legal 
of 
the 

costs  related 
drafting  of 
legislative 
awareness 
training 
professionals  on 
amendment. 

94 

the 
of 

  However, 
definition 
“extrajudicial 
documents” 
  would 
leave  a  margin  of 
The 
appreciation. 
concept 
of 
extrajudicial 
documents would also 
private 
include 
documents 
(i.e.  not 
issued  by  a  court  or 
state  authority),  if  the 
service of document is 
required  in  order  to 
prove 
protect 
or 
rights of the claimant. 
The  interpretation  on 
when  the  service  of 
is 
such 
required  might  differ 

document 

 
Problem 2: Unclear definition of extra-judicial documents 
Option 

Effectiveness 

Efficiency 

2.2.2 Deviating from 
the CJEU case law, 
by giving a clearer 
and more restricted 
approach  towards 
the service of purely 
private documents 
by obliging that they 
must emanate from 
public or judicial 
authorities  

to 

from  one  Member 
another. 
State 
Therefore,  the  rights 
of  the  parties  might 
not 
equally 
be 
the 
protected  across 
MS due to this margin 
of appreciation. 

  This 

legislative 
would 
measure 
significantly 
reduce 
the  legal  uncertainty 
as  it  would  provide  a 
clearer 
and  more 
restricted definition of 
extrajudicial 
documents.  

  This  definition  would 
enable  an  efficient 
of 
speed 
and 
documents 
as 
authorities  across  the 
Member  States  would 
be  aligned  on  which 
are  the  documents  to 
be served. 

Benefits: 

enable 
the 

  As, for 2.2, this option 
to 
would 
legal 
decrease 
The 
uncertainty. 
involved 
stakeholders 
service  of 
in 
the 
in  cross-
documents 
border 
proceedings 
would benefit from this 
clear  definition,  and 
would  be  aware  of 
what 
of 
documents  should  be 
considered  as  “extra-
judicial”. 

type 

Costs: 

  As  for  2.2,  this  option 
some 
costs 

entail 
would 
implementation 

95 

Proportionality 

Rating  Conclusion 

2 

This option presents the 
same benefits as option 2.2 
(explained above). 
However, this option is not 
proportionate as it provides 
a too restricted and narrow 
definition. 

2.2, 

  This  option  would  go 
beyond what is necessary 
to  achieve  the  objective 
satisfactorily. 
As 
explained 
previously 
under 
legal 
a 
measure  is  necessary  to 
provide a clear definition 
of the concept, and hence 
ensure the legal certainty. 
However,  the  definition 
this  option  goes 
in 
beyond  what  is  strictly 
necessary as it provides a 
too narrow and restricted 
the 
interpretation 
concept.   

of 

 
Problem 2: Unclear definition of extra-judicial documents 
Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

that 

for  the  Member  States 
the 
to  ensure 
stakeholders 
duly 
this  new 
implement 
legal  measure 
(e.g. 
communication costs). 
  There  would  also  be 
the 
the  new 
and 
text 
/ 
raising 
legal 
of 
the 

costs  related 
drafting  of 
legislative 
awareness 
training 
professionals  on 
amendment. 

to 

Preferred policy 
measure  

The preferred policy measure is option 2.2.1 as this legal measure would bring the not only legal certainty to the proceeding but 
would also contribute to the efficiency and speed of the proceeding. In addition, the implementation costs are not expected to 
very high: costs related to the drafting of the new legislative instrument and some communication/awareness costs to ensure 
that the stakeholders duly implement this new legal measure (e.g. communication costs). The measure is proportionate. 

Table 7: Assessment of options for problem 3 “Unclear requirements regarding the information on the right to refusal” 

Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

3.1(a) Best practice 
guide, to be 

  This 

soft  measure 

Benefits: 

96 

Proportionality 

  This 

option 

is 

Conclusion 

Rati
ng 
1.5  Although this soft 
measure is 

 
 
 
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

elaborated in the 
context of the EJN 
(civil), addressed to 
staff involved 
(receiving 
authorities, Central 
Bodies, bailiffs) on 
how to inform the 
recipients on their 
right to refuse the 
documents if those 
are not in line with 
language 
requirements. This 
would include best 
practice examples 
going beyond the 
provision of the 
annex form. 
+ 
3.1(b) Information to 
citizens/businesses 
about their right to 
refuse a document on 
language grounds 
contained in the 
Regulation. An 
appropriate tool for 

staff 

to 
would  contribute 
the  protection  of  the 
rights of the parties as 
the 
involved 
would  have  at  their 
disposal  guidance  and 
best  practices  on  how 
to inform the recipient 
about  his/her  right  of 
refusal.  In  addition, 
further 
such 
this 
explanations  on 
right 
be 
would 
provided to businesses 
and  citizens  through 
tool 
an  appropriate 
such  as  user-friendly 
website. 
Therefore, 
the recipient would be 
informed about his/her 
right 
refusal 
to 
through three different 
form, 
the 
channels: 
transmitting 
the 
agency 
the 
and 
website.  
  Nevertheless, 

this 

different 

  This  measure  would  contribute 
to  a  coherent  approach  to  the 
service  of  documents  amongst 
stakeholders 
the 
involved, ensuring that the right 
to  refusal 
is  duly  explained 
when the document is served.  
  The recipient would be the main 
beneficiary  of  this  measure  as 
he/she  would  be  aware  of 
his/her right to refusal. 

Costs: 

 

Identification  of  best  practices, 
and  drafting  the  guidance  as 
the 
well  as 
material 
official 
languages; 

translation  of 
all 
to 

  Costs 

  Costs 

to 

the 

related 
dissemination of the guidance; 
include 

relevant 
information  on 
the  already 
existing  website  YourEurope 
and/or national websites. 

97 

Proportionality 

Conclusion 

Rati
ng 

proportionate to 
address the problem, it 
presents some costs to 
be faced by the 
Member States. In 
addition, the measure 
would not be legally 
binding: the 
stakeholders would 
thus decide whether 
they apply or not. 
There is therefore no 
guarantee that the 
recipient would be 
duly informed about 
his/her rights to 
refusal. 

the 
of 
to 
inform 
their 

proportionate as it is 
a  simple  form  of 
action 
to 
satisfactorily 
achieve 
objective 
clarifying  how 
properly 
recipients  on 
right of refusal; 
  The provision of the 
required  information 
(already 
on 
the 
existing) 
EU-
website  YourEurope 
national 
and/or 
websites 
a 
is 
proportionate 
option, as it does not 
additional 
entail 
efforts 
for 
implementation. 

 
 
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

provision of this 
information could be 
an EU website like 
Your Europe76 (or 
national citizen’s 
information 
websites). 

3.2.1 (a)Amend 
provisions in the 
Regulation to clarify 
that: 

would  remain  a  soft 
measure:  stakeholder 
might decide to follow 
the  guidance  or  not. 
Therefore  there  is  no 
guarantee 
the 
recipient  would  be 
on 
informed 
duly 
his/her right to refusal.  

that 

of 

  Furthermore, 
individual 
recipients 
are not expected to be 
the 
all 
aware  of 
existence 
this 
website,  and  actually 
be  inclined  to  access 
it.  Therefore, 
the 
protection of the rights 
of  the  parties  would 
not  be  fully  ensured 
by this option.  

  This 

legal  measure 
would reduce the legal 
uncertainty 
as 
transmitting  agencies 

Benefits: 

  The  requirement  regarding  the 
right  of 

information  on 

the 

76 http://europa.eu/youreurope/index.htm 

98 

Proportionality 

Conclusion 

Rati
ng 

  This 

is 
option 
the 
proportionate: 
codification 
of 
existing  case  law  is 

2.5  This legal measure 

would provide clarity 
on the requirement 
regarding the 

 
                                                            
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

Proportionality 

Conclusion 

Rati
ng 

on 
information 
the right to refuse 
should  always  be 
provided 
regardless  of  the 
language  of  the 
documents (CJEU 
case-law)  by  the 
transmitting 
agency, 
diplomatic 
or 
consular agent, or 
the  authority  or 
person 
serving 
the  document  by 
service, 
postal 
the 
through 
standard  form 
in 
the 
Annex  II  of 
Regulation  (CJEU 
case-law). 

 

 

would  be  aware  that 
they  are  required  to 
the 
always  provide 
the 
information  on 
refuse, 
right 
the 
regardless 
language 
the 
document.   

of 
of 

to 

that 

  This  option  would 
also  contribute  to  a 
coherent  protection  of 
the right of the parties. 
This  option  would 
ensure 
the 
recipient 
receives 
information  on his/her 
right  to  refuse  in  all 
languages, and despite 
the  language  of  the 
the 
document 
method  of 
service 
used.  

or 

refusal would be legally binding, 
ensuring  that  the  recipient  is 
correctly  informed  about  his/her 
right. This would mainly benefit 
the recipient, as the protection of 
his/her rights would be ensured. 

Costs: 

costs, 

  This measure would entail some 
the 
time-related 
stakeholder 
the 
document would need to explain 
to  the  recipient  his/her  right  to 
refusal. 

serving 

as 

  There  would  also  be  costs 
related to the drafting of the new 
legislative  text  and  awareness 
legal 
raising 
professionals 
the 
amendment. 

training  of 

on 

/ 

and 
simple 
a 
necessary  action  to 
provide  more  legal 
certainty 

  The  legal  action  is 
with 

and 

coherent 
satisfactory 
achievement 
effective 
enforcement  of  the 
objective  (less  legal 
arising 
disputes 
from  an  unclearness 
and/  or  unawareness 
concerning  the  right 
refusal;  better 
of 
protection of parties’ 
procedural rights)  

  The 

all) 
(above 
administrative  costs 
are 
commensurate 
with the objective to 
be achieved 

3.2.1 (c) Indicators 
(non exhaustive 
examples)   in the 
Regulation helping 

19 

Article 
Regulation 
provisions 
consequences 

of 
the 
contains 
the 
a 

of 

on 

Benefits: 

  This 

option 

  The  language  assessment  would 
benefit the addressee who would 
a 
a  document 
receive 

in 

proportionate 
some 
Requiring 

99 

is 
to 
extent. 
a 

information on the 
right to refusal, 
bringing the necessary 
legal certainty and 
ensuring the 
procedural rights. 
Despite the 
implementation costs, 
the measure is 
proportionate to 
address the problem. 

2.5  This measure would 
provide a list of 
indicators to conduct a 
language assessment 

 
 
 
 
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

Proportionality 

Conclusion 

Rati
ng 

the assessment of the 
language skills of the 
addressee in case of 
refusal by the forum 
court 

defendant  not  entering  an 
appearance.  The  provision 
limits  the  possibility  for 
the court to give judgment 
against  a  defendant  who 
has  not  appeared  and  who 
was  to  be  served  abroad. 
Paragraph  4  enables  the 
judge to free the defendant 
from  the  effects  of  the 
expiry  of 
time  for 
the 
appeal  against  a  default 
judgment.  This  provision 
thus  provides  a  safeguard 
to  make  sure 
the 
procedural 
defendant’s 
rights have been taken into 
is 
account. 
the 
complemented 
possibility 
refuse 
recognition  of  a  judgment 
on  the  ground  that  the 
defendant  was  not  served 
with  the  document  which 
instituted  the  proceedings 
or an equivalent document 
correctly,  as  stipulated  in 
the  Brussels  Ia  Regulation 

that 

by 

to 

It 

 

language he fully understands. 
It  would  also  benefit 
the 
plaintiff, as he would not need to 
translate the document to several 
the 
languages. 
plaintiff  would 
the 
certainty 
the  addressee 
understands  the  document  and 
does not refuse it. 

In  addition, 
have 

that 

Costs: 

 

  This measure would entail some 
time-related  costs  in  order  to 
carry  out  the  assessment  of  the 
language skills. 
It  would  also  require  some 
translation costs for the parties. 
  There  would  also  be  costs 
related to the drafting of the new 
legislative  text  and  awareness 
raising 
legal 
professionals on the amendment. 

training  of 

/ 

language  assessment 
for  each  proceeding 
might 
too 
be 
burdensome. 
language 
Therefore 
assessment 
should 
only  be  conducted 
is 
when 
confusion 
concerning 
language 
addressee. 

the 
the 

there 

of 

of the addressee. This 
would enable to bring 
legal certainty to the 
procedure, as well as 
to ensure the 
protection of the 
procedural rights. It 
would, however, 
entail some costs 
(such as time and 
translation costs). The 
measure would be 
proportionate as it 
would not require to 
conduct such 
assessment for each 
proceeding, but only 
provides guidance to 
conduct it if it is 
deemed necessary.  

100 

 
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

Proportionality 

(Art. 45(1)(b)).  

 

Benefits 

 

  The  recipient  would  be  the  main 
beneficiary  as  he  would  be  fully 
aware  of  the  legal  consequences 
of his/her refusal. 

Costs: 

as 

the 

This  option  might  be 
disproportionate  to  some 
same 
extent 
objective  (i.e.  inform  the 
recipient 
the 
about 
consequences  of  his/her 
refusal),  could  be  achieved 
through  a  soft  measure 
(i.e. option 4.1). 

Rati
ng 

2.5 

Conclusion 

This measure would ensure 
the protection of the 
procedural rights, as it would 
include the legal 
consequences of the refusal in 
Annex II. The recipients 
would be hence aware of the 
consequences when refusing a 
document.  

3.2.1 (b) Amend 
Annex II to 
introduce clearer 
information  on the 
legal consequences of 
the refusal for the 
recipient 

  This 

option  would 
the 
to 
contribute 
of 
protection 
procedural 
rights,  as 
the addressee would be 
aware 
the 
consequences  of  their 
decisions. 

of 

3.2.2 Follow the 
recommendation of 
the ELI-Unidroit 
project "From 
Transnational 
Principles to 
European Rules of 
Civil Procedure": 
reverse the condition 

  This 

option  would 
ensure the protection of 
the  rights,  in  particular 
of the defendant, as the 
court  would  need  to 
find  out  the  languages 
understands 
he/she 
(and not simply rely on 

  This measure would entail that all 
the  forms  used  by  the  courts 
would need to be replaced 
  Costs re filling in the new fields 
  There would also be costs related 
the  new 
text  and  awareness 
legal 
training  of 

to 
legislative 
raising 
/ 
professionals on the amendment. 

the  drafting  of 

Benefits: 

  The  language  assessment  would 
benefit  the  addressee  who  would 
receive a document in a language 
he fully understands. 
It would also benefit the plaintiff, 
as  he  would  not  need  to  translate 
several 
the 

document 

to 

 

101 

This option is 
proportionate as it is 
coherent with 
satisfactory achievement 
and effective 
enforcement of the 
objective (as after all it is 
the court to decide 
whether it is “justified to 

1.5  This measure would 
contribute to the 
protection of 
procedural rights, 
although does not 
clearly explain how 
the objective approach 
to determine the 
language skills of the 

 
 
 
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

of the right of refusal 
and go back to an 
'objective approach', 
the court should not 
simply rely on the 
allegations of the 
claimant as to the 
defendant’s language 
skills77. 

 

by 

information 
the 

the 
provided 
claimant). 
Instead  of  the  current 
the 
solution  where 
assessment 
the 
of 
language  knowledge  of 
the  addressee  should 
take  place  only  once 
there  is  a  refusal,  the 
ELI-UNIDROIT 
solution  would  require 
an  upfront  assessment 
of  the  language  skills 
determine, 
(first 
the 
is 
which 
appropriate  language  at 

to 

In 

addition, 

the 
languages. 
plaintiff  would  have  the  certainty 
that the addressee understands the 
document and does not refuse it. 

Costs: 

 

in  order 

require  some 

  This  measure  would  entail  some 
time-related  costs 
to 
carry  out  the  assessment  of  the 
language skills. 
It  would  also 
translation costs for the parties. 
  There would also be costs related 
the  new 
text  and  awareness 
legal 
training  of 

to 
legislative 
/ 
raising 
professionals on the amendment. 
  The  objective  criterion,  that  the 

the  drafting  of 

Proportionality 

refuse” this option may 
shorten the way to such 
discretionary decision) 

Conclusion 

Rati
ng 

recipient should be 
applied. In addition, 
the measure would 
entails some costs 
(such as time and 
translation costs).  

77 The language requirements set by the ELI-Unidroit project are set in Rule 15: 
(1) In the case of natural persons not engaging in independent professional activities the documents referred to in Rule 1 and the information referred to in Rule 2 must be in a language 

of the proceedings and, unless it is evident that the addressee understands the language of the forum, also in a language of the Member State of the individual’s habitual residence.  

(2) In the case of legal persons, the documents referred to in Rule 1 and the information referred to in Rule 2 must be in a language of the proceedings, and also the language of the legal 

person’s principal place of business, its statutory seat or of the principal documents in the transaction. 

Although the rule does not provide a criteria from for language skills, it must, however, clearly express that an exception from the translation requirement is acceptable only in some 
cases. According to the comments of the draft text prepared by the ELI-Unidroit project, this may be the case "e.g. if the claimant can produce a document written by the defendant 
in the respective language or has evidence proving that the defendant’s profession involves such language skills (teacher, interpreter), or that the defendant formerly lived in the 
forum state for some time and that it can therefore be presumed that he or she knows the language of the forum. The same can apply if the defendant is a national of the forum state 
but is presently living elsewhere".  

102 

 
                                                            
Problem 3: Unclear requirements regarding the information on the right to refusal 
Option 

Effectiveness 

Efficiency 

Proportionality 

Conclusion 

Rati
ng 

of 

place 

the 
the 
delivery,  and  if  it  is 
evident 
the 
addressee  understands 
the original language of 
the proceedings). 

that 

  Due  to  this  additional 
task to be performed, in 
general,  in  all  cases  by 
transmitting 
the 
agency, 
system 
the 
would be less efficient.. 

language of the document should, 
as  a  general  rule,  correspond  to 
the  language  at  the  residence  or 
seat  of 
the  addressee,  will 
necessarily increase the situations 
in  which 
are 
necessary.  This  will  increase  the 
costs of the proceedings, and also 
add  to  the  delays  consumed  with 
the translations.  

translations 

Preferred policy 
measure 

The preferred policy measure is option 3.2.1 as it would bring the necessary clarity regarding the requirement regarding the 
information on the right to refusal. It would entail some implementation costs (such as: the agencies would need time to duly 
explain the right to the recipient, costs related to the drafting of the new legislative text and awareness raising / training of legal 
professionals on the amendment). The measure is proportionate.  
The preferred policy measureis a combination of variousoptions. This option would bring clarity and legal certainty on how the 
language skills of the addressee should be determined. In addition, the amendment of Annex II would clearly explain the legal 
consequences of the refusal, contributing to the protection of the procedural rights. There are some costs associated with the 
implementation of the option (related to the drafting of the new legislative text, time-related costs, and raising awareness of / 
training legal professionals on the amendment) and it is proportionate. 

Table 8: Assessment of options for problem 5 “lack of clarity in terms of due diligence to be carried out before issuing default judgment (Art. 19) 

Problem 4: Lack of clarity in terms of due diligence to be carried out before issuing default judgment (Art. 19)  

103 

 
 
 
 
Proportionality 

Rating  Conclusion 

  This 

3 

This measure would 
ensure that the 
recipient is aware of 
the document to be 
served, although 
he/she is not 
physically present at 
his/her address. This 
would ensure the 
protection of his/her 
procedural rights. 
Such measure would 
entail some 
implementation costs.  
The measure is 
proportionate. 

Efficiency 
Benefits: 

  The  addressee  would 
main 
the 
be 
beneficiary  of 
this 
measure,  as  he  would 
via 
reached 
be 
different channels.  

Costs: 

  Time-related  costs  for 
the 
transmitting 
agencies  to  send  alert 
messages. 

  There  would  also  be 
costs  related  to  the 
drafting  of  the  new 
text  and 
legislative 
/ 
raising 
awareness 
training 
legal 
of 
professionals  on  the 
amendment. 

Option 
4.2.1 (a) If service fails or 
the physical address is 
not known, oblige 
agencies and central 
bodies to send alert 
messages through all 
means of communication 
which are known and 
reasonably likely to be 
accessible exclusively to 
the addressee, including 
e-mail addresses and 
social media accounts 
through private 
communications. 
4.2.1(b) Introduce 
uniform time period of 
2or 3 years for the 
availability of the 
extraordinary review in 
Art. 19(4) to set aside a 
default judgment 

Effectiveness 

  This  option  would 
contribute  to  a  higher  
current) 
the 
(than 
protection 
of 
procedural rights: 

-  The 

transmitting 
agency  would  use 
several  means 
in 
order  to  inform  the 
the 
addressee  when 
physical  service  has 
failed.  This  might 
allow  the  service  of 
document, 
the 
although 
the 
addressee  cannot  be 
localised 
physically 
(e.g. 
the 
when 
addressee  is  away  for 
a  long  period  without 
his/her 
to 
access 
postal  mailbox).  This 
option  thus  has  the 
potential  to  decrease 
the  number  of  default 
judgements  issues  by 
the courts. 

-  The  introduction  of  a 
rule 

harmonised 

104 

 

option 

is 
proportionate  as 
it 
require 
would 
“making  use”  of  the 
existing 
electronic/social 
media  channels  of 
communication/ 
It 
would  entail  efforts 
from  the  transmitting 
agencies  to  send  the 
alert messages.  
Introducing  uniform 
is  a 
time  periods 
proportionate 
harmonised  measure 
as  it  would  enable  a 
coherent  achievement 
effective 
and 
the 
enforcement  of 
(i.e. 
objective 
protection 
the 
rights) 
procedural 
the  Member 
across 
States. 

of 

 
 
Problem 4: Lack of clarity in terms of due diligence to be carried out before issuing default judgment (Art. 19)  
Option 

Proportionality 

Effectiveness 

Efficiency 

introducing a uniform 
time period of 2 years 
for  the  addressee  to 
request 
an 
extraordinary  review, 
replacing  the  national 
would 
deadlines, 
ensure 
the 
procedural  rights  are 
equally 
protected 
across 
the  Member 
States. 

that 

4.2.2 Extraordinary 
reliefs in national law for 
restitution in intregrum 
against default 
judgments may not be 
applied for purposes of 
cross-border recognition 
and enforcement of the 
default judgment after the 
expiry of the 2 year 
period in 19(4) 
(codification of the 
Lebek ruling78) 

  This  option  would 
a 
introduce 
rule 
harmonised 
time 
establishing  a 
period  (2  years)  for 
the  restitution  against 
default 
judgements, 
for purposes of cross-
recognition 
border 
and 
enforcement. 
Such  measure  would 
a 
contribute 

to 

Benefits: 

  Setting  a  maximum 
period  for  setting  aside 
default  judgements,  for 
cross-border  purposes, 
would  ensure  that  after 
the  expiry  of  these  2 
the  defendant 
years, 
can 
rely  with  more 
certainty  on  the  refusal 
ground  of  the  Brussels 
Ia  Regulation  relating 

period 

  The introduction of a 2 
years 
is 
proportionate  to  target 
the  problem.  It  only 
affects the cross-border 
the 
effects 
availability 
of 
reliefs 
extraordinary 
against 
default 
judgments  in  national 
laws.  For 
procedural 
purposes, 
domestic 

of 

Rating  Conclusion 

2.5 

This measure would 
enable a balanced 
protection of 
procedural rights 
across the Member 
States. Concerning 
the costs, legal 
practitioners would 
be informed about 
this  

78 As the CJEU has held in C-70/15, Lebek, Art. 19(4) does not only set a minimum standard for the possibility of restitutio in integrum, but a maximum one excluding the availability 
of  other  extraordinary  reliefs  under  national  laws  beyond  the  time-period  open  for  the  relief  in  Article  19(4).  The  Court  stated  that  when  the  time  limit  communicated  by  the 

105 

 
                                                            
 
Problem 4: Lack of clarity in terms of due diligence to be carried out before issuing default judgment (Art. 19)  
Option 

Proportionality 

Effectiveness 

balanced protection of 
the  procedural  rights 
across 
the  Member 
States. 

Efficiency 
to 
inappropriate 
the 
service of the document 
instituting  proceedings 
(Art.  45(1)(b)),  should 
the claimant request the 
cross-border 
enforcement 
of 
default judgment.  

the 

these  reliefs  will  be 
on 
applied 
without restrictions.  

further 

4.2.3 (a) (same as 42.1(a) 
If service fails or the 
physical address is not 
known, oblige courts to 
send alert messages 
through all means of 
communication which are 
known and reasonably 
likely to be accessible 
exclusively to the 
addressee, including e-

  This  option  would 
entail  a  higher  (than 
the current) protection 
of 
procedural 
rights: 

the 

-  The  Court  will  use 
in 
several  means 
the 
order 
to  serve 
document  when 
the 
physical  service  has 
failed.  This  might 

Costs: 

  Awareness  costs  would 
be  necessary  to  inform 
the  legal  practitioners 
about this measure. 

Benefits: 

  The  addressee  would 
main 
the 
be 
beneficiary  of 
this 
measure,  as  he  would 
via 
reached 
be 
different channels.  

Costs: 

  The  use  of  alternative 
means (such as emails 

  This 

option 

is 
proportionate  as 
it 
require 
would 
“making  use”  of  the 
existing 
electronic/social 
media  channels  of 
communication/ 
It 
would  entail  efforts 
from  the  transmitting 
agencies  to  send  the 

Rating  Conclusion 

1 

This measure would 
ensure that the 
recipient is aware of 
the document to be 
served, although 
he/she is not 
physically present at 
his/her address. This 
would ensure the 
protection of his/her 
procedural rights. 

Member  State  for  the  relief  in  Article  19(4)  has  elapsed,  the  defendant  cannot  bring  an  application  for  relief  under  national  law  after  the  elapse  of  this  time  limit,  even  when 
national law provides for a longer time limit. 

106 

 
                                                                                                                                                                                                                                                                                                              
Effectiveness 

Problem 4: Lack of clarity in terms of due diligence to be carried out before issuing default judgment (Art. 19)  
Option 
mail addresses and social 
media accounts through 
private communications. 
4.2..3(b) Delete time-
periods in Art. 19(4) to set 
aside a default judgment 

Proportionality 

alert messages.  

Rating  Conclusion 

However, the deletion 
of time-periods 
would hamper the 
procedural rights, as 
each Member States 
would apply its own.  

  Deleting  time-periods 
is not proportionate as 
it  would  not  bring 
clarity  for  the  courts 
the 
concerning 
availability  of 
the 
extraordinary review.  

allow  the  service  of 
document, 
the 
although 
the 
addressee  cannot  be 
physically 
localised 
the 
when 
(e.g. 
addressee  is  away  for 
a  long  period  without 
his/her 
to 
access 
mailbox).  This  option 
thus  has  the  potential 
to 
the 
decrease 
number  of  default 
judgements  issues  by 
the courts. 

Efficiency 
and 
social  media) 
would  entail  costs  for 
the  courts  in  terms  of 
time 
human 
and 
resources, as a person 
to  be 
would  need 
dedicated to this task. 
  There  would  also  be 
costs  related  to  the 
drafting  of  the  new 
text  and 
legislative 
/ 
raising 
awareness 
legal 
of 
training 
professionals  on  the 
amendment. 

put 

  The  deletion  of  the 
could 
time-periods 
however 
the 
procedural  rights  of 
the  parties  at  stake. 
Without  a  reference 
to  time-periods  in  the 
Regulation,  each  MS 
would  apply  its  own 
national rules, leading 
to  discrepancies  and 
unequal 
thus, 
the 
of 
protection 

107 

 
 
Problem 4: Lack of clarity in terms of due diligence to be carried out before issuing default judgment (Art. 19)  
Option 

Proportionality 

Effectiveness 

Efficiency 

Rating  Conclusion 

procedural rights. 

Preferred policy measure   The preferred  policy measure is a combination of two options: 4.2.1 (a and b) and 4.2.2. This option would add most 

clarity concerning the due diligence to be carried out before issuing default judgements. There are some costs 
associated with the implementation of the policy measure (related to the drafting of the new legislative text, time-
related costs, and raising awareness of / training legal professionals on the amendment) and it is proportionate.  

Table 9: Assessment of options for problem 6 ” use of fictitious or alternative service methods in an inconsistent way among the Member States 
+ Insufficient consideration for substituted/alternative service methods in the Regulation 

Problem 5: Use of fictitious or alternative service methods in an inconsistent way among the Member States + Insufficient consideration for 
substituted/alternative service methods in the Regulation 
Option 
5.2.1 Codifying the existing 
case law of the CJEU 
(Alder):  

Effectiveness 
  This 

Efficiency 
Benefits 

1 

Rating  Conclusion 

proceedings 

option 
to 
protection 

would 
a  more 
contribute 
complete 
of 
procedural  rights  in  cross-
as 
border 
fictitious  methods  would 
not  be  used  as  a  sanction 
against 
parties 
those 
without  a  representative  in 
the  MS  where 
the 
proceeding is taking place. 
  This  could,  however,  slow 
down  the  proceedings,  as 

 

fictitious  methods  of 
service  may  not  be  used 
as  a  sanction  against 
parties 
legal 
to 
proceedings  with  a  seat 
or  residence  in  MS  B 
who  failed  to  appoint  a 
representative  in  MS  A 
for  purposes  of  service 
on him/her 

  The recipient  would be the main 
beneficiary  of  this  measure,  as 
he/she  would 
the 
document,  despite  not  having  a 
representative  appointed  in  the 
Member 
the 
proceeding is conducted.  

State  where 

receive 

Costs: 

 

If  no  fictitious  method  can  be 
used,  the  document  would  need 
to  be  served  according  to  the 

108 

Proportionality 
option 
  This 
is 
the 
proportionate: 
codification  of  the 
settled  case  law  is 
and 
simple 
a 
necessary  action  to 
provide  more  legal 
certainty 
limiting 
the use of fictitious 
methods. 

This measure would 
ensure the 
procedural rights of 
the recipient, as 
he/she would be 
receiving the 
document (despite 
not having a 
representative in the 
Member State where 
the proceeding is 
having place). 
However, this would 

 
 
 
Problem 5: Use of fictitious or alternative service methods in an inconsistent way among the Member States + Insufficient consideration for 
substituted/alternative service methods in the Regulation 
Option 

Proportionality 

Effectiveness 

Efficiency 

Rating  Conclusion 

probably slow down 
the proceeding. The 
measure would not 
entail major costs, 
and is proportionate. 

1 

  The 

measure 
be 
to 

seems 
proportionate, 
only 
since 
it 
addresses 
cross-
border  service  of 
documents 

the addressee would have to 
be 
another 
Member State. 

located 

in 

5.2.2 Codifying the inverse 
of the Alder Case: 
the use of fictitious 
methods are allowed 
against foreign parties not 
appointing representatives 
for purposes of service in 
the MS of the proceedings. 

 

solution  would  be 
this 
efficient 
its 
due 
contribution  to  procedural 
economy.  

to 

  The solution reflects a well-
established  practice  of  the 
civil  procedural  codes  of 
the  Member  States:  it  does 
not  infringe  the  protection 
of the rights of the defence, 
since sanctions may only be 
applied  after  the  document 
instituting  the  proceedings 
has  been  duly  served to  the 
defendant. 

  A  disadvantage  to  foreign 
parties,  though,  lies  in  their 
unfamiliarity  with 
the 
options  to  appoint  a  proxy 
for  purposes  of  serving  a 
document  in  the  Member 
State of origin.  

the  Regulation, 
provisions  of 
and  would  thus  entail  the  usual 
costs of a cross-border service of 
documents. 

For the foreign party obliged to 
appoint a representative for 
purposes of serving the documents 
in course of the proceedings, the 
solution would require additional 
efforts and costs: to make 
arrangements and to comply with 
the order of the courts.  

109 

 
 
 
Problem 5: Use of fictitious or alternative service methods in an inconsistent way among the Member States + Insufficient consideration for 
substituted/alternative service methods in the Regulation 
Option 
5.2.3 Transferring the 
content of recital 8 to the 
normative rules   

Efficiency 
Benefits 

Effectiveness 

rules  of 

2.5 

Rating  Conclusion 

  Transferring recital 8 to the 
normative 
the 
Regulation  would  a  higher 
(than the current) protection 
of  procedural  rights.  The 
recital  8  would  be  in  this 
case  legally  binding.  This 
the 
would 
document would need to be 
served  to  the  addressee  and 
not to a representative party 
his/her in the Member State 
where 
is 
taking place.  

the  proceeding 

imply 

that 

  5.2.4  Set  the  principle 
with  regard  to  the  use 
of 
and 
fictitious 
"alternative" 
(substituting)  domestic 
service  methods:  as  a 
service 
rule, 
default 
should  be  attempted 
through the ways of the 
the 
Regulation, 
its 
addressee 
in 
seat/residence 

if 
has 

  This 

rights. 

would 
option 
contribute  to  the  protection 
of  procedural 
It 
would set legal principles to 
limit  the  use  of  fictitious 
and  alternative  methods. 
For  example,  such  kind  of 
methods  could  be  used  as 
ultima  ratio  after  previous 
attempts failed. 

  This  measure  would  also 
legal  certainty  as 
bring 
transmitting agencies would 

  The recipient  would be the main 
beneficiary  of  this  measure,  as 
the 
he/she  would 
document,  despite  not  having  a 
representative  appointed  in  the 
Member 
the 
proceeding is conducted.  

State  where 

receive 

Costs: 

  The usual costs incurred when a 
document  is  served  in  cross-
border proceeding 

Benefits: 

  The  main  beneficiary  of  this 
the 
be 
measure  would 
the  use  of 
recipient, 
fictitious  method  would  be 
limited. 

as 

  The 

agencies  would 
also 
benefit from the legal certainty 
established by this measure. 

Costs: 

  This option could entail higher 
costs,  as  it  would  reduce  the 

110 

Proportionality 
  This 
is 
option 
to 
proportionate 
achieving 
a 
harmonised  use  of 
alternative 
the 
service  methods 
across  the  Member 
States. 

This measure would 
ensure the protection 
of the procedural 
rights, limiting the 
use of fictitious 
methods to serve 
documents. The 
measure would not 
entail major costs, 
and would be 
proportionate.  

This option is 
proportionate as it 
provides a legal 
measure providing 
legal certainty and 
consistency with 
regard to the use of 
fictitious/alternative 
methods of service. 

2.5 

This legal measure 
would limit the use 
of fictitious and 
alternative service 
methods, ensuring 
the procedural rights 
and bringing legal 
certainty to the 
procedure (as the 
agencies would be  

 
 
Problem 5: Use of fictitious or alternative service methods in an inconsistent way among the Member States + Insufficient consideration for 
substituted/alternative service methods in the Regulation 
Option 

Proportionality 

Effectiveness 

Efficiency 

Rating  Conclusion 

another MS. 

know  when  and  how  this 
type  of  methods  could  be 
used. 

of 

occasions 
be 

a 
number 
document 
served 
can 
through fictitious or alternative 
methods.  Hence,  in  such  cases 
the document would need to be 
served 
the 
according 
provisions  of  the  Regulation 
and  would  entail  the  usual 
costs  of  a  cross-border  service 
of documents. 

to 

  There  would  also  be  costs 
related  to  the  drafting  of  the 
new 
and 
awareness  raising  /  training  of 
legal  professionals  on 
the 
amendment. 

legislative 

text 

Preferred policy measure 

The preferred policy measure is a combination of options5.2.2, 5.2.3.and 5.2.4. These  measure would clearly set how and when 
fictitious or  substituting/alternative service methods of national laws could be used instead of the Regulation, if the addressee 
has his/her residence in another Member State. This would, on the one hand, ensure the protection of the procedural rights, while 
bringing the necessary legal certainty to the proceeding. There are low costs associated with the implementation of the policy 
measuren (related to the drafting of the new legislative text and raising awareness of / training legal professionals on the 
amendment) and it is proportionate. 

Table 10: Assessment of options for problem 7 “varying practices relating to costs of serving documents (leading to both delays and inequalities 
in the market)” 

Problem 6: Varying practices relating to costs of serving documents (leading to both delays and inequalities in the market) 

111 

 
 
Option 

6.1 Provision of 
information on the e-
Justice portal on the 
approach to costs in the 
Member States i.e.: 

-  Clarifying whether 
a Member State 
charges for service 
by receiving agency 
-  Clarifying whether 
such payment is to 
be pre-paid and 
which means of 
payment are 
accepted 

6.2.1 Setting a maximum 
threshold for the eligible fees 
in cross-border service 
through judicial officers or 
competent persons  

Effectiveness 
 This option would reduce 
delays caused by the lack 
of / conflicting 
information about the 
costs for service through 
receiving and transmitting 
agencies where a judicial 
officer or competent 
person is involved, thus 
reducing the burden for 
citizens and businesses 
involved in cross-border 
proceedings.  

 However, the option does 

not solve issues with 
inequalities in the market 
caused when the costs for 
service are too high for 
some citizens or 
businesses or when the 
disparity of costs affect 
competition. 

 This option would ensure 
that fees for service of 
documents do not vary 
disproportionately across 
the Member States. It 
would therefore positively 

Efficiency 
 This option would reduce 
the likelihood of a delay in 
the beginning of the 
procedure with little 
intervention on behalf of the 
agencies/authorities. 

Proportionality 
 This option does not 

produce a 
disproportionate 
effort or effect 
compared to the 
problem.  
 However, the 

problem is only 
partially addressed 
by this option.   

Rating  Conclusion 

2 

This option would 
provide an effective 
measure for clarifying 
current confusion on 
the approach to costs 
in the different 
Member States, at little 
cost for authorities. 
However, the option 
does not seek to 
approximate the 
difference practices 
related to costs in the 
Member States. 

 To introduce this option, 

 This option is 

1 

Member States may have to 
make some changes in terms 
of setting agreements with 
process servers or bailiffs to 
adjust the fee schedules for 

disproportionate to 
the problem since it 
may involve changes 
to fee structures at 
the national level. 

Although this option 
would ensure that fees 
are somewhat more 
transparent, it may 
produce unfair 
practices between 

112 

 
 
 
Effectiveness 

Problem 6: Varying practices relating to costs of serving documents (leading to both delays and inequalities in the market) 
Option 
(the maximum threshold 
would be set in relative 
terms e.g. as a % of the 
claim or relative to the 
standard of living in each of 
the Member States) 

cross-border service of 
documents. This would 
entail some costs for 
Member State authorities, 
judicial officers, bailiffs 
and/or process servers.  

contribute to the objective 
of improving access to 
justice for citizens and 
businesses. 

Proportionality 
 It may also 

Efficiency 

Rating  Conclusion 

domestic applicants 
and cross-border 
applicants. However, 
to reduce such 
inequality in accessing 
the service, it would be 
more appropriate to set 
thresholds in each 
Member State relative 
to the standard of 
living. 

encourage an uneven 
playing field for 
citizens and 
businesses involved 
in proceedings at the 
national level and 
cross-border if costs 
are set at varying 
rates for cases with a 
cross-border 
element.  

 Further, it does not 
address the issue of 
confusion over cost 
structures and 
consequent delays 
encountered.   

 It would also positively 
contribute to further 
reducing the cost burden 
for citizens and businesses 
involved in cross-border 
proceedings. 

 However, it is not clear 
how such a threshold 
would be agreed upon by 
Member States.  

  Importantly, it may also 
introduce another level of 
complication in 
understanding the fees 
across the Member States, 
as this option does not 
contain any provisions 
regarding information for 
applicants. 

113 

 
 
 
Effectiveness 
 This option would 

Problem 6: Varying practices relating to costs of serving documents (leading to both delays and inequalities in the market) 
Option 
6.2.2 Deleting the possibility 
of Member States to 
maintain a flat rate fee in 
cases of service through 
bailiffs or other competent 
persons under the Regulation 
(thereby creating equality 
with those MS who do not 
charge fees at all) 

contribute positively to all 
policy objectives since  
-  no costs would be 
involved in the 
service of documents 
through a bailiff or 
other competent 
person,  

loss of revenue 
required on behalf of 
Member States, this 
option is regarded as 
disproportionate to 
the issue at hand.  

largest costs for Member 
States since they would have 
to provide such services for 
free. 

Efficiency 
 This option entails the 

Proportionality 
 Given the significant 

 It may also 

1 

Rating  Conclusion 

This option is regarded 
as unrealistic in 
practice. In some 
Member States, direct 
service may be carried 
out by a bailiff or 
equivalent service 
provider. Thus, these 
legal bodies would be 
denied the possibility 
to charge fees for 
cross-border service of 
documents. Further, if 
fees are still charged 
for domestic service, 
this would produce a 
more uneven effect on 
competition in the 
market. 

encourage an uneven 
playing field for 
citizens and 
businesses involved 
in proceedings at the 
national level and 
cross-border if costs 
are set at varying 
rates for cases with a 
cross-border 
element.  

-  no delays would be 
encountered due to 
confused or 
conflicting 
information about 
costs and modalities 
of payment,  
-  access to justice 

- 

would be ensured and  
there would be no 
legal uncertainty as to 
the issue of costs 
under the Regulation. 

Preferred policy measure 

The preferred policy measure is the non-legislative option 6.1.. 

Table 11: Assessment of options for problem 8 “Reliance on paper-based means of communication between transmitting & receiving agencies” 

Problem 7: Reliance on paper-based means of communication between transmitting & receiving agencies 

114 

 
 
 
 
Option 

Effectiveness 

Efficiency 

Proportionality 

Rating 

Conclusion 

7.1 Sharing of best 
practices between 
Member States’ 
designated authorities 
on e-communication 
79 

States 

  This  option  would  provide 
with 
Member 
they 
information  on  how 
could 
e-
communication in practice. 

adopt 

  However 

it  contains 

two 

main downfalls: 

- 

It does not fully ensure 
that  e-communication 
best 
practices  will 
actually  be  put  into 
practice  by  Member 
States; 

-  Efforts  would 

to 

still 
have 
to  be  made 
between  the  Member 
States  if  they  would 
implement 
like 
cross-border 
e-
communication.  The 
such 
uptake 
of 
initiatives 
also 
uncertain as it is likely 
that  Member  States 

are 

0.5 

 The  choice  of  a  non-
legislative  measure 
does  not  sufficiently 
address the problem at 
hand  since  it  cannot 
be 
that 
ensured 
Member  States  will 
adopt 
decide 
to 
e-
in 
practices 
communication.  

Although this measure could 
encourage the uptake of e-
communication practices 
between the Member States, 
it does not directly facilitate 
this. Even if initiative is 
taken by some Member 
States, it may take a 
considerable amount of time 
and bi-lateral agreements on 
e-communication could 
result in even more 
fragmentation across the 
EU. 

  This  option  entails  very 
little  cost  for  Member 
State  authorities  and  the 
Commission. 

effect  on 
of 

uncertainty; 
improve 

  However,  it  also  has  no 
the 
direct 
the 
achievement 
specific 
policy 
objectives. (i.e. to reduce 
to 
legal 
further 
the 
efficiency  and  speed  of 
judicial  proceedings;  to 
improve access to justice 
the 
and 
protecting 
of 
procedural 
parties 
the 
proceedings; 
to  reduce 
the  burden  from  undue 
for 
costs  and  delays 
citizens 
and  business 
involved  in  cross-border 
proceedings). 

rights 
to 

79 For the purposes of the analysis, it is presumed that a series of best practice examples would be collected by the Commission and transformed into an online guide which would be 

shared among Member State authorities. 

115 

 
 
 
                                                            
Problem 7: Reliance on paper-based means of communication between transmitting & receiving agencies 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating 

Conclusion 

  This 

with  close  working 
relationships  would 
together  and 
group 
certain 
on 
agree 
standards 
and 
practices,  while  others 
may not engage at all.   
would 
option 
contribute  to  improving  the 
efficiency  and  speed  of 
proceedings 
cross-border 
and  minimising  the  burden 
for  citizens  and  businesses 
by  reducing  the  time  spent 
of 
transmission 
on 
documents 
between 
agencies.  
  However, 

the  security  of 
documents  would  not  be 
ensured  to  the  same  extent 
across  all  Member  States 
and  relevant  agencies  as 

7.2.1 Codifying the 
principle of "digital 
by default"80 for 
communications and 
transmission of 
documents between 
transmitting and 
receiving agencies 

(for the purposes of 
the analysis, it is 
presumed that the 
Regulation would 
oblige Member States 
to communicate 
through e-mail and 

the 

 Member  State  agencies 
would  incur  some  costs 
to 
for 
transition 
of 
electronic  means 
communication. This may 
involve 
setting  up  a 
secure  document  sharing 
system  or  email  account, 
and  ensuring  sufficient 
security measures. 

 Further, 

in 

the  pre-
stage, 
implementation 
Member  States  would 
have 
in  a 
to  engage 
process  where  they  could 

their 

scope 

 This option leaves too 
for 
much 
to 
Member  States 
own 
adopt 
national 
practices 
without  ensuring  that 
e-communication  will 
the 
be  adopted 
same extent across all 
Member  State  and 
with  the  same  levels 
of security. 

to 

2 

Codifying the principle of 
digital by default would 
undoubtedly be a positive 
step towards reducing 
paper-based 
communication between 
agencies. However, with 
the option there is still 
significant scope left with 
the Member States on how 
they choose to implement 
such a principle which 
could result in more 
fragmentation across the 
EU. The option would also 
entail a significant amount 

80 “Digital-by-default” means that digital means would be used at all times save for a number of exception. With the codification of this principle, there may be exceptions to the rule 
which would have to be set out in sufficient detail to ensure that email (and other e-methods) are used by default. Thus, there would still be scope for Member States to legitimately 
avoid using e-solutions. 

116 

 
 
  
                                                            
Problem 7: Reliance on paper-based means of communication between transmitting & receiving agencies 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating 

Conclusion 

secure document 
sharing solutions) 

different  solutions  would  be 
expected 
to  be  used  by 
different Member States.  

72.2Use of e-
CODEX for e-
communication and 
secure transmission 
of documents 
between the 
designated 
authorities and 
making its use 
mandatory81 

  This 

would 
option 
contribute  to  improving  the 
efficiency  and  speed  of 
cross-border 
proceedings 
and  minimising  the  burden 
for  citizens  and  businesses 
by  reducing  the  time  spent 
on 
of 
transmission 
documents 
between 
agencies.  

agree  on  the  standards 
and conditions of using e-
communication 
which 
would  entail  additional 
time and costs.  

 However, 

once 
the  costs 
implemented, 
to 
deemed 
not 
are 
the  benefits 
outweigh 
associated  with 
the 
efficient  transmission  of 
documents. 

 Member  States  that  are 
not  already  connected  to 
incur 
e-CODEX  would 
some (moderate) costs for 
setting 
the 
of 
connectors 
tool 
to 
which  may  also  involve 
some  adjustments  to  the 
systems  or  practices  at 
the national level.  

up 
the 

  The  use  of  a  common  tool 

 However,  the  costs  are 

of preparation in terms of 
setting interoperable 
standards and security 
measures that agencies 
must agree on. This would 
essentially duplicate the 
efforts and disregard the 
success already achieved 
by Member States (through 
e-CODEX) in this area.   

Using e-CODEX for the 
service of documents is 
considered as the most 
appropriate intervention for 
the problem at hand. As e-
CODEX is already set up in 
serval Member States and 
used for communications in 
other areas (i.e. European 
Payment Order, Small 
Claims etc.), no additional 

3 

 Although  the  highest 
in  cost,  this  option  is 
as 
regarded 
for 
proportionate 
the 
addressing 
problem: 
the 
is 
intervention 
justified  on  the  basis 
that  the  same  benefits 
could not be achieved 
by  Member  States  on 

81 For the purposes of the analysis, it is presumed that the Regulation would oblige mandatory use of the tool except in the case of its temporary technological unavailability issues 

making it impossible to use the tool. 

117 

 
 
 
 
                                                            
Problem 7: Reliance on paper-based means of communication between transmitting & receiving agencies 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating 

Conclusion 

their own. 

not  deemed  to  outweigh 
the  benefits  associated 
the  efficient  and 
with 
transmission  of 
secure 
documents. 

efforts would be necessary 
for agreement on standards 
or security measures. It is 
also the most efficient 
means currently available 
at the EU level that allows 
for secure document 
sharing, tracking and case 
management.  

the 

scope 

would  ensure  that  the  same 
level  of  security  is  in  place 
across the Member States. 
  Interoperability  would  be 
ensured  with  the  use  of  a 
common  tool  and  it  would 
reduce 
for 
to  use 
Member  States 
different 
to 
communicate. 
the 

  Further, 
tool  would 
allow 
of 
tracking 
documents  and  contributes 
also  to  more  efficient  case 
the 
management 
agencies. 

channels 

for 

for 

Preferred policy 
measure  

Option 7.2.2 is the preferred policy measure. The use of e-CODEX brings several benefits for service of documents under the 
Regulation including increased efficiency, less reliance on paper-based communication and case management functionalities. 
Although costs would be incurred for Member States to connect to the platform, the tool offers an immediate solution 
(compared to other options which would require preliminary work on standards, interoperability etc.) as it is already available 
and being used by Member States in several domains. The costs for its implementation though will have to be carefully 
considered and will be elaborated on as part of assessing the policy package. 

118 

 
 
 
 
 
 
 
Table 12: Assessment of options for problem 9 “Direct electronic service of a document from MS A to recipient with physical residence in MS B 
is not explicitly allowed or favoured” 

Problem 8: Direct electronic service of a document from MS A to recipient with physical residence in MS B is not explicitly allowed or favoured 
Option 

Rating  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

8.2.1 Introduce cross-
border electronic service 
as an accepted method of 
service under the 
Regulation, provided that 
this complies with some 
uniformly defined 
conditions: 

a) the document is 

transmitted 
electronically to an end-
user who is a client of a 
qualified Electronic 
Registered Delivery 
Service (ERDS)  
(according to the 

 This option would 

positively contribute 
to all policy 
objectives. The main 
advantages of this 
option are: 

- The certainty that 

electronic service is 
recognised under the 
Regulation as a valid 
means of service; 

- Transmission of 
documents cross-
border will be 
accelerated;   
- The security of 
documents is 
ensured through the 
use of eIDAS 
qualified services; 

 The efficiency of this 
option is moderate. 
 It entails no costs for 

Member States as they 
would not be obliged to 
adopt electronic delivery 
solutions but only to 
recognise them as valid 
means of service. 
 However, the full 
benefits of using e-
service solutions are not 
ensured since their use 
would only be optional. 

 This option is not 

2 

disproportionate to 
the problem but it 
does not fully 
address it.   

This option is considered as a 
fundamental amendment to the 
Regulation considering the 
digitalisation of communications 
across all domains in the EU. By 
including ERDS as a valid method 
of service, the Regulation would 
better reflect modern 
communication methods and 
initiatives in place domestically in 
the Member States, adding legal 
certainty that they are valid means 
for serving documents. However, 
the option does not necessarily 
promote the use of e-delivery 
solutions and thus the move away 
from paper-based service is not 
guaranteed.  

119 

 
 
 
Problem 8: Direct electronic service of a document from MS A to recipient with physical residence in MS B is not explicitly allowed or favoured 
Option 

Rating  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

standards of eIDAS 
Regulation82), OR 

b) the document is sent to 
another electronic 
mailbox or user 
account, if there is an 
express consent by the 
recipient in the 
individual case to use 
this account for 
purposes of serving on 
him/her. 

- Parties to a cross-
border proceeding 
can receive 
documents in any 
electronic form if 
they wish to do so. 
However, the option 
does not encourage or 
favour the use of e-
service and thus its 
uptake cannot be 
ensured.  

8.2.2 Oblige Member States 
to ensure interoperability 
between their domestic e-
delivery systems used in 
legal proceedings in civil 
and commercial matters, 
where such systems exist at 
the national level 

  This option would 
ensure a speedier 
transmission of 
documents 
between Member 
States that 
currently have e-
delivery systems 

 This option would entail 

significant costs for 
Member States and the 
Commission in terms of 
planning interoperability 
solutions, set up costs, 
implementation costs, 
maintenance, etc. 

  This option entails 
disproportionate 
costs for its 
effects. 

  It also does not 

fully address the 
problem at hand. 

1 

Although ensuring interoperability 
between the e-delivery systems in 
the member States is in theory an 
effective solution, its practical 
implementation and extent to which 
it e-delivery would be guaranteed 
across the EU is uncertain. This 
option entails significant efforts in 

82 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal 

market. 

120 

 
 
 
                                                            
Problem 8: Direct electronic service of a document from MS A to recipient with physical residence in MS B is not explicitly allowed or favoured 
Option 

Rating  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

the pre-implementation phase for 
agreement on technical 
interoperability and standards and is 
thus disproportionate to the 
problem. 

 The benefits would be 
limited to Member 
States where such 
systems already exists 
although they may 
strengthen over time 
with increased uptake. 

in place.  

  At the same time, 
the effect of this 
option would be 
limited only to 
those Member 
States that have 
such systems in 
place. 

  Further, the option 

does not 
encourage or 
favour the use of 
e-service and thus 
increased uptake 
of e-solutions 
cannot be ensured.  

Preferred policy measure 
option 

Option 9.2.1 is the preferred  policy measure. By making ERDS a valid means of serving documents, the Regulation allows 
for interoperable and secure electronic service methods for the service of documents. The option further enhances the 
procedural rights of parties as they can opt for receipt of documents through any electronic means.  In addition, although the 
option does not necessarily encourage the use of electronic service of documents in a proactive way, it entails no cost for 
Member States and it is the most proportionate measure available without obliging direct service as a default method.  
Also, we suggest that this measure is also accompanied with information to legal practitioners on the benefits of using ERDS 
for serving documents and practical information on where to find a service provider etc. 

121 

 
 
 
 
 
 
Table 13: Assessment of options for problem 10 “Insufficient quality of service by post (Art 14) including via security risks, delays and 
insufficient filling out of acknowledgement of receipt” 

Problem 9: Insufficient quality of service by post (Art 14) including via security risks, delays and insufficient filling out of acknowledgement of 
receipt  
Option 

Ranking  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

1 

  The measure is 
regarded as 
proportionate to the 
problem and is in 
line with 
appropriate 
intervention by the 
EU. 

The introduction of such 
labelling of documents 
could potentially improve 
the quality of service by 
post if it is accompanied 
by some guidelines for 
postal operators on how to 
interpret such labelling. It 
could further be 
complemented with a best 
practice guide on serving 
documents of an official 
nature. 

9.2.1 (a) Clarifying in a 
recital the uniform standard 
character of the existing 
conditions in Article 14 to 
postal service  
+ 
9.2.1 (b) Obliging 
transmitting agencies to 
label envelopes containing 
documents to be served 
through which the postal 
operators and addressees are 
alerted to the official nature 
of the document  

 The effectiveness of this 

option is limited.  

 It could be expected that 
the quality of service by 
post would be increased 
to some extent by 
additional care that may 
be taken both the postal 
operator and by 
addressees in good faith 
when alerted to official 
nature of the document. 
 However, postal operators 
would not be obliged to 
take additional care or to 
take any additional 
actions with regard to 
effecting service. Thus, it 
would not directly 
address issues with 
security, delays and 
properly completing the 
acknowledgment of 

 This option would entail 
some additional costs for 
the Commission and 
Member States: 
-  Labels for envelopes 
containing juridical 
or extra judicial 
documents would 
have to be agreed 
upon, produced and 
disseminated. 
-  The costs for 

purchasing the labels 
would also be borne 
by the transmitting 
agencies. 

The benefits of the label 
are limited as it cannot be 
guaranteed that the quality 
of service by post would 
improve.   

122 

 
Problem 9: Insufficient quality of service by post (Art 14) including via security risks, delays and insufficient filling out of acknowledgement of 
receipt  
Option 

Ranking  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

receipt.  

 This option is also limited 
in that it only applies to 
documents that are served 
through transmitting and 
receiving agencies. Thus, 
the quality of postal 
services for persons 
sending documents 
through post as a direct 
method, would not be 
impacted. 

  This option would 

contribute to enhancing 
legal certainty whereby 
common return slips 
would be recognised 
with the same value in 
all courts across the 
Member States. The 
return slip would also be 
designed in a way that 
specifically meets the 
information 
requirements for service 
of documents under the 

9.2.2 (a) Clarifying in a 
recital the uniform 
standard character of the 
existing conditions in 
Article 14 to postal service  
+ 
9.2.2 (b) Introducing a 
specific uniform 
international return slip 
(acknowledgement of 
receipt) through which 
documents under the 
Regulation are served by 
post (postal operators 

This option entails a 
major change to postal 
service rules and is 
regarded as 
disproportionate to the 
issue at hand.  

  This scope of this 

1.5 

option 
proportionate.  T It 
is coherent with the 
acquis on EU postal 
policy, which 
allows for sector 
specific regulation 
for postal operatives 
in the context of 
justice documents.. 

   

 This option would entail 
costs for postal operators 
with regard to 
adjustment of their 
procedures, training staff 
and cost of material (i.e. 
the slips). 

 Irrespective of this, 

postal service providers 
in the majority of the 
Member States are 
anyway subject to 
specific rules of civil 
procedural law (different 

123 

 
Problem 9: Insufficient quality of service by post (Art 14) including via security risks, delays and insufficient filling out of acknowledgement of 
receipt  
Option 

Ranking  Conclusion 

Proportionality 

Effectiveness 

Efficiency 

have to follow specific 
rules in course of the 
delivery of such docs).  

Regulation. 

This option is efficient, 
since it addresses properly 
the problem identified.  

9.2.3 (a) Create a uniform 
list of eligible alternative 
("substituting") methods of 
service, once the document 
has to be served to another 
Member State. 
Acceptable methods 
constitute the ones e.g. 
included in Art. 13-14 of 
Reg. (EC) 805/200483 or Art. 

  Setting 

numerus 
a 
clausus  of  possible 
alternative  methods  to 
be  used,  a  possible 
hierarchy 
between 
them, as well as better 
indication 
the 
Annex  (so  it  reflects 
the  eligible  alternative 

in 

from the rules based on 
the framework of the 
Universal Postal Union) 
when serving judicial 
documents. Such an 
obligation would not be 
uncommon, therefore.   

 However, it would 
provide more legal 
certainty regarding the 
acceptance in court of 
the service by post as 
effective. 

Benefits: 

  The  final  selection 
of fictitious methods 
selected  might  be 
less  costly  for  the 
plaintiff 
a 
regular  cross-border 
of 
service 
the 
documents,  as 

than 

This option is 
proportionate as it is a 
simple form of action to 
satisfactorily achieve the 
objective of providing 
more legal certainty and 
consistency with regard 
to the possibility of using 
alternative methods of 
service. The uniform list 

2 

This legal measure 
would bring legal 
certainty to the 
proceeding as agencies 
would be aware of the 
fictitious/alternative 
methods they could use. 
IT would also ensure 
the protection of 
procedural rights. 

83  Regulation  (EC)  No  805/2004  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  creating  a  European  Enforcement  Order  for  uncontested  claims,  http://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R0805&from=EN 

124 

 
                                                            
13-14 of Reg. (EC) 
1896/200684 
+ 
9.2.3 (b) Fine tune/upgrade 
the standard form in the 
Annex on the service of the 
document, so that it reflects 
in more detail the eligible 
alternative methods 

 

can 

would 
methods) 
enable  to  bring  legal 
certainty to the process 
as  the  agencies  would 
be  aware  of  which 
methods 
be 
applied. 
also 
would 
It 
contribute  to  a  more 
complete  protection  of 
the  procedural  rights, 
as  only 
certain 
number of this type of 
methods  listed  in  the 
Regulation  could  be 
used.  In  addition,  the 
adjustment 
the 
Annex  would  enable 
more 
to 
information  on  such 
types of methods. 

bring 

of 

a 

service  of  document 
is  made  “domestic” 
(no  costs  related  to 
cross-border 
the 
dimension 
would 
apply).  

of eligible method should 
not be exhaustive and 
does not affect the 
situations where service 
of documents occurs 
domestically.  

Costs: 

Nevertheless, the 
modification of the 
Anne would entail some 
costs. The measure is 
proportionate. 

  Replace 

all 

the 
forms  used  by  the 
agencies. 

  There would also be 
costs  related  to  the 
drafting  of  the  new 
legislative  text  and 
awareness  raising  / 
training 
legal 
professionals  on  the 
amendment. 

of 

Preferred policy 
measure option 

Although neither option is extremely effective at addressing the problem, the combination of 9.2.2 and 9.2.3 cans be considered 
as the preferred policy measureoption. it is expected  that the required improvement would be seen in the quality of postal service.  

84  Council  Regulation 

(EC)  NO  1896/2006  of  12  December  2006 

for  payment  procedure,  http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32006R1896&from=EN, ; and Regulation (EU) 2015/2421 of the European parliament and of the Council of  16 December 2015 amending 
Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure, http://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2421&from=EN 

a  European  order 

creating 

125 

 
 
 
 
                                                            
126 

 
 
 
Table 14: Assessment of options for problem 11 “Use of direct service (Article 15) is restricted or inaccessible” 

Problem 10: Use of direct service (Article 15) is restricted or inaccessible. 
Effectiveness 
Option 

Efficiency 

Proportionality 

Ranking  Conclusion 

 This intervention is not 
deemed as the most 
appropriate one for 
addressing the problem. 
Although no major costs 
would be borne by Member 
States it would not have a 
straight effect on making 
direct service more 
accessible. 

0.5 

Although additional 
information on the 
availability if the service 
would be helpful as it is 
still a point of confusion 
and delays for applicants. 
However, the most 
prominent issue is the 
availability of direct 
service which is not 
addressed by the option. 

 This option does not 

 Minor costs for the 

Commission would be 
involved in the 
production of the 
information sheet. 
 Member States may 

bear some very limited 
costs for the provision 
of information to the 
Commission. 

 The benefit is that the 
information on direct 
service in the Member 
states and the 
conditions are 
available to citizens 
and legal practitioners. 

10.1 Information sheet for 
citizens and legal 
practitioners on the 
availability of direct 
service (Article 15) 
+ 
Practice guide for the 
courts/ designated 
authorities on how to use 
Article 15 in the 
Regulation 

10.2.1 Extending the 
scope of application of 
Article 15 so that also 
bodies, legal persons and 

effectively respond to 
the issue at hand as it 
does not bring the 
method of direct 
service closer to 
citizens and 
businesses. 

 It may however 
contribute to 
increasing the 
efficiency of judicial 
proceedings by 
clarifying confusion 
on the availability of 
the service in the 
various Member 
States that may have 
previously lead to 
undue delays in the 
process.   

 This option would 
effectively allow 
bodies and legal 
persons to use direct 

 This option would 
entail costs for 
amending the 
Regulation but no costs 

This option is a proportionate 
measure for the issue and is 
regarded as in line with 
appropriate action that the EU 

1 

This option has a clear 
benefit in that all 
bodies/legal persons 
would be able to use 

127 

 
 
Problem 10: Use of direct service (Article 15) is restricted or inaccessible. 
Effectiveness 
Option 

Efficiency 

Proportionality 

Ranking  Conclusion 

bailiffs may use it 

102.2 Obliging Member 
States to to ensure that 
foreign persons 
interested in legal 
proceedings may directly 
turn to competent 
persons or officials in 

service under the 
Regulation.  

 It takes into account 

the different practices 
in the Member States 
with regard to who is 
responsible for 
serving documents 
under the domestic 
rules as opposed to 
the restrictive nature 
of the current 
wording in Art. 15.  
 However, this option 
does not address the 
issue of direct service 
not being allowed or 
is restricted by some 
Member States. 
 This option would 
ensure that direct 
service would be 
available to all 
applicants across the 
EU  

 This option also 

can take.  

would be borne 
directly by Member 
States or 
citizens/businesses.  
 The costs are justified 
by the benefit that all 
that all bodies/legal 
persons would be able 
to use direct service to 
the extent that it is 
available. 

direct service. However 
it should be 
complemented with a 
measure that also 
encourages more 
Member States to allow 
direct service. 

 The option would 
entail costs for 
amendment of the 
Regulation but little or 
no costs are expected 
for Member States, 
businesses or citizens. 

 This option is proportionate 
to the problem and the costs 
involved.  

 Allowing access to these 

services, even in the territory 
of Member States where 
currently this is not a 

2 

This option is an 
appropriate measure to 
take to address the 
problem. Not only would 
it increase efficiency by 
allowing increased 
access to direct service, it 

128 

 
Problem 10: Use of direct service (Article 15) is restricted or inaccessible. 
Effectiveness 
Option 

Efficiency 

Proportionality 

Ranking  Conclusion 

their territory with a 
request to serve a 
document. This would 
imply that those Member 
States whose laws 
currently does not 
recognize such type of 
service should allocate 
this task to a particular 
branch of profession..   

enhances mutual trust 
between judicial 
systems in the 
Member States and 
contributes to 
Internal Market 
principles. 

 The benefits of the 

option in terms of legal 
certainty, enhancing 
mutual trust and 
reinforcing Internal 
Market principles 
outweigh the costs. 

  

also produces more 
equality within the 
market. 

possibility, will allow the 
choice for parties in a 
proceeding and also 
contributes to fair 
competition across the EU. 
This option may require 
adaptation in those Member 
States the procedural laws of 
which do not know the 
method of service of a 
document by a judicial 
officer, official or other 
competent person. But, it 
should be noted that only a 
minority of the Member 
States is affected. 

 . In addition, any costs 

deriving by the introduction 
by and the adaptation to this 
new system could be 
compensated in a mid-term, 
if the national legislator 
allows that the competent 
persons charge a fee for their 
services. 

 .  

129 

 
Preferred policy 
measure option 

The preferred options are 10.2.1 and 10.2.2. These measures are complementary as they address the problem from both sides. On 
one side, by extending the scope of application of Article 15 so that also transmitting agencies may use it, direct service would be 
made more accessible and the amendment would also enhance legal certainty, with no costs for stakeholders. On the other side, 
11.2 would ensure that these stakeholders can access direct service in all Member States. This would ensure a more even playing 
field in the market.   

Table 15: Assessment of options for problem 12 “Non-compliance of receiving agencies with the timeframe set out in the Regulation” 

Problem 11:  Non-compliance of receiving agencies with the timeframe set out in the Regulation 

Option 

Effectiveness 

Efficiency 

Proportionality 

Ranking 

Conclusion 

11.1 Provision of training on 
efficient communication 
practices  

 The effectiveness of this 

option is limited. 

 It could be expected that 

the efficiency of 
communication would 
be increased to some 
extent due to an 
‘increased awareness of 
the issue’ through the  
trainings. However, the 
agencies would not be 
obliged to communicate 
according to such 
practices. 

 This option does not 
fully address the 

  This option would 
create higher 
awareness of the issue 
(which may indirectly 
lead to better 
compliance with the 
timeframe, etc.) 

  However, there would 
be administrative costs 
for the Commission 
and/or Member States 
(in terms of time and 
human resources) for 
the provision of 
training. 

130 

The added value of this 
measure is not certain as 
it does not have any 
direct impact on the 
practices of agencies.  

 This option is a 

1 

proportionate measure 
in terms of the action 
that can be achieved 
by the EU. 

 However costs for 
delivery of such 
trainings are 
disproportionate due 
to and the limited 
effectiveness on the 
policy options.    

 
 
 
 
 
Problem 11:  Non-compliance of receiving agencies with the timeframe set out in the Regulation 

Option 

Effectiveness 

Efficiency 

Proportionality 

Ranking 

Conclusion 

11.2.1 Promote Member 
States to actually notify 
several  languages which 
their agencies and 
authorities are ready to use 
for purpose of 
communication under the 
Regulation 

problem (being the mere 
fact that agencies do not 
communicate efficiently 
and/or do not comply 
with the timeframe, 
more than a lack of 
know-how concerning 
“efficient practices of 
communication”). 
 This option would 

contribute to the speed 
and efficiency of the 
process: by promoting 
the agencies to accept 
communications in 
several languages, the 
option would ensure 
more instances where 
the transmitting and 
receiving agencies have 
a common language. 
This option would allow 
for more efficient 
communication and 
better compliance with 
the timeframe set out in 
the Regulation.  

  Member States would 
faces costs in ensuring 
that they have the tools 
and staff available to 
communicate in 
languages other than 
their official language..  

  Also, the efficiency of 
this option is hampered 
by the risk that 
attempts to 
communicate are 
unsuccessful due to 
low quality of the 
language skill in the 
chosen alternative 
language on either 
side. It could still 

131 

 The option proposed a 

1 

proportionate  
measure , The 
consistency with the 
EU principle of 
multilingualism may 
be questioned.  

  

Although this option 
would be an effective 
measure it is dependent 
on the foreign language 
skills of the staff at the 
agencies. 

 
Problem 11:  Non-compliance of receiving agencies with the timeframe set out in the Regulation 

Option 

Effectiveness 

Efficiency 

Proportionality 

Ranking 

Conclusion 

11.2.2 Introduce a “digital-
by-default” principle 
obliging Member States’ 
agencies and authorities to 
use, as a rule, electronic 
means of communications 
for their interactions with 
each other.  

produce some delays 
in the process. 

 Member  States  that  are 
not already connected to 
e-CODEX  would  incur 
some  (moderate)  costs 
for  the  setting  up  of 
connectors  to  the  tool 
which  may  also  involve 
some  adjustments  to  the 
systems  or  practices  at 
the national level.  

 However,  the  costs  are 
not  deemed  to  outweigh 
the  benefits  associated 
with  the  efficient  and 
secure  transmission  of 
documents. 

  This option would 

improve the efficiency 
and speed of cross-
border proceedings to 
some extent with the 
increased use of e-
service methods. 
Consequently, the 
burden to citizens and 
business is reduced. 

  Additionally, the 

procedural rights of 
parties would be better 
protected with more 
efficient transmission 
and service of 
documents. 

 This option is 

2 

considered as a 
proportionate measure 
that could be taken 
and in line with the 
EU’s digital strategy.  

This option would 
encourage more timely 
service of documents in 
the Member States and 
oblige agencies to first 
consider the digital 
option available to them. 
However, it is dependent 
on the factors 
determining whether 
digital service is 
appropriate to reach the 
addressee or not. 

Preferred policy 
measureoption 

  in  
Option 1.2.2 is the preferred policy measure, which is in fact the same as the option, 7.2.2  

 .  

132 

 
 
 
 
 
ANNEX 6: ASSESSMENT OF IMPACTS OF BASELINE SCENARIO 

Effectiveness 

The assessment of effectiveness is based on the impact of the baseline scenario on each 
of the specific objectives i.e. to 

  further improve the efficiency and speed of judicial proceedings and thereby reduce 

the burden for citizens and businesses; 

  improve  access  to  justice  and  the  protection  of  the  procedural  rights  of  parties  to 

the proceedings; 

  reduce legal uncertainty. 

The status quo is not highly effective at meeting the policy objectives. Although the 
Regulation  would  continue  to  have  a  limited  positive  effect  on  the  efficiency  and 
speed of judicial proceedings, delays based on uncertainties and practical challenges 
would persist. A major impact on the effectiveness of the Regulation going forward 
is the continued reliance on paper based means of communication and transmission 
of documents. In addition, cross-border proceedings are expected to grow up until 
2030  and  thus  the  application  of  the  Regulation  will  become  more  common. 
Therefore,  current  legal  uncertainties  may  become  more  widespread  with  the 
current issues on the access to justice not fully alleviated. 

As depicted in detail in section  Error! Reference  source not found., it has been estimated 
that the number of cases in which the Regulation is applied will increase by around 23% 
until  2030.85  This  expected  increase  is  mainly  due  to  the  following  factors  (which  are 
interconnected):  

  Increased cross-border activity of businesses and citizens; and 
  Increased knowledge of the Regulation by legal professionals.  

At the same time, the challenges identified in relation to the application of the Regulation 
are likely to continue to exist. On this basis, under the status quo problems for citizens 
and  businesses  will  persist,  which  limits  the  achievement  of  the  policy  objectives.  In 
particular, there will still be ambiguities leading to undue delays and costs as well as a 
reliance  on  paper-based  communication  and  service  of  documents.  Although  digital 
forms of communication will increase gradually throughout the EU, the Regulation will 
not facilitate or encourage their uptake in its current form.  

85 From 3 364 447 cases in 2017 up to around 4 383 931 in 2030.  

133 

 
 
 
 
                                                            
Further improving the efficiency and speed of judicial proceedings and thereby reducing 
the burden for citizens and businesses 
Under  the  baseline  scenario,  the  Regulation  would  continue  to  have  a  limited  positive 
effect on the efficiency and speed of judicial proceedings. Delays based on uncertainties 
and practical challenges would persist: 

  Ambiguities in the Regulation with regard to  

o  the meaning of extra-judicial documents;  
o  the approach to costs in the Member States;  
o  the provision of information on the right of refusal;  
o  the assessment of language skills;  
o  the use of fictitious and alternative service methods; 

  Lack of clear guidance on locating an addressee; 
  Low uptake of digital communication and service methods; 
  Restricted access to direct service; and  
  Low quality postal service. 

Due to the increasing number of legal proceedings in which the Regulation is expected to 
be  applied  per  year  until  2030,  these  challenges  are  expected  to  affect  an  increasingly 
large  amount  of  citizens  and  businesses.  Thus,  costs  and  delays  associated  with  the 
application of the Regulation are expected to increase over time. 

Currently,  requests  for  service  under  the  Regulation  can  take  up  to  2  months  when  no 
complications  arise.  When  further  information  is  sought  or  the  request  is  unclear, 
requests  for  service  can  be  delayed  an  additional  4  weeks.  In  the  baseline,  small 
improvements are possible under the status quo based on an increased number of cases in 
which  the  Regulation  is  expected  to  be  applied.  On  this  basis,  it  is  possible  that  legal 
professionals gain more practice in applying the Regulation and thus can become more 
efficient in its application. This is supported by evaluation findings (Section 0), whereby 
stakeholders agreed that the Regulation functions more smoothly between neighbouring 
countries with many requests for service. The current varying practices in interpreting the 
Regulation are hence likely to become more streamlined overtime.  

In addition, it is possible that electronic means for communication between transmitting 
and  receiving  agencies  would  slightly  increase  based  on  an  increased  overall  use  of 
electronic  means  for  communication  in  Member  States’  public  service.  In  addition, 
electronic  service  of  documents  may  slightly  increase  as  Member  States  across  the  EU 
for  public  authority 
adopt  more  eGovernment  solutions 
communications).  Indeed,  as  part  of  the  evaluation,  a  number  of  planned  or  ongoing 
initiatives like these were identified at Member State level. 

(such  as  e-boxes 

However,  it  is  not  clear  to  what  extent  new  initiatives  by  the  Member  States  would  be 
interoperable across Member States in the future. Such further development is likely to 
occur  very  slowly  and  in  a  fragmented  way  (through  e.g.  bilateral  agreements  between 
neighbouring Member States).  

134 

 
Costs  and  benefits  associated  with  the  efficiency  of  judicial  proceedings  are  elaborated 
on in the ‘efficiency’ section below.  

Improving access to  justice  and the protection of the procedural rights  of parties  to  the 
proceedings 
Regarding access to justice and protection of the rights of the parties, the Regulation does 
not currently meet this objective to the full extent. Although the provisions on the right to 
refusal and default judgments contained in the Regulation are positive measures, issues 
still  exist  with  regard  to  their  interpretation  and  application  in  the  Member  States.  In 
addition,  the  Regulation  does  not  address  fictitious  or  alternative  methods  of  service, 
which can also impact on the rights of parties involved in cross-border proceedings. 

Currently,  issues  exist  under  the  Regulation  regarding  the  application  of  the  right  of 
refusal both in terms of the protection offered to parties and the varying interpretations of 
the  right  across  the  Member  States.  Regarding  the  former,  the  Regulation  does  not 
completely protect an addressee living in a Member State without (sufficient) knowledge 
of the language of the place of service. Regarding the latter, the assessment of language 
skills  is  largely  open  to  interpretation  by  the  courts  which  results  is  different  levels  of 
protection  of  procedural  rights  across  the  EU.  Going  forward,  there  is  only  a  slight 
chance that due to the expected increase in the number of cases applying the Regulation, 
courts’  interpretation  regarding  the  language  skills  of  the  addressee  will  gradually 
become more harmonised. Hence the baseline scenario will not significantly alleviate this 
problem. 

The Regulation is currently striking a good balance between the rights of the applicant in 
proceedings with the case and the rights of the defence to a fair trial with regard to the 
issue of default judgments. Nevertheless, it is estimated that default judgments are likely 
to  increase  over  time  in  the  baseline  scenario.  As  EU  citizens  become  more  mobile,  it 
may  become  more  difficult  to  contact  them  through  the  channels  currently  available  in 
the  Regulation  and  thus  defendants  may  not  enter  an  appearance  within  a  sufficient 
amount of time. Thus, the procedural rights of parties may be more at risk in the future. 

Another issue hampering the achievement of this objective under the baseline is the lack 
of  guidance  in  the  Regulation  on  the  use  of  fictitious86  and  substituted  service87  which 
causes  ambiguity  and  fragmentation  concerning  the  rights  of  parties  in  the  Member 
States.  Going  forward,  although  the  application  of  the  Regulation  is  likely  to  increase 
with the rise in the number of cross-border civil and commercial cases, the problems with 
fictitious and substituted service are also expected to exacerbate. In particular, the silence 
of  the  Regulation  on  the  use  of  fictitious  or  alternative  service  methods  is  expected  to 

86 Fictitious service refers to where the applicant does not necessarily aim to inform the party, but just to 
ensure  that  there  is  an  act  considered  as  formal  service  so  that  the  proceedings  may  be  continued 
("publication on the court board",  placing the doc. to be served to the case file). It is almost certain 
that the defendant does not get the information. 

87 Substituted service refers to service of the document indirectly i.e. not on the addressee themselves but 

service at the place of work, a family member or a representative. 

135 

 
                                                            
enhance the varying applications of these methods across the EU, producing an uneven 
approach to procedural rights of parties.  

Finally,  the  absence  of  an  electronic  method  for  serving  documents  impairs  this 
objective. Citizens and businesses have the right to access to justice and in this context, 
preferences  for  communication  should  be  taken  into  account.  As  mentioned  above, 
mobility is increasing in the EU and with that citizens and businesses interact more and 
more  through  electronic  means.  In  the  baseline  scenario,  the  Regulation  may  be 
perceived  as  out-of-date  and  less-efficient  in  comparison  to  the  realities  of  electronic 
communication in 2030.  

Reducing legal uncertainty 
Legal certainty is a general principle of law at EU and international level. The principle 
of  legal  certainty  stipulates  that  laws  need  to  be  precise,  predictable  and  calculable  in 
order to allow subjects to the law to regulate their conduct and foresee the consequences 
of  their  actions.  Legal  certainty  hence  requires  that  "there  be  no  doubt  about  the  law 
applicable at a given time in a given area and, consequently, as to the lawful or unlawful 
nature of certain acts or conduct”88. 

In  the  current  situation,  the  vagueness  of  certain  provisions  and  legal  uncertainty 
concerning  various  legal  concepts  foreseen  in  the  Regulation  is  impending  its  smooth 
application. This is particularly true for the ambiguity of various requirements revolving 
around the right of refusal (Article 8) or of the concept of ‘extra-judicial documents’ as 
well  as  the  lack  of  clarity  in  terms  of  due  diligence  to  be  carried  out  locating  the 
addressee of a document to be served. 

In  addition,  legal  uncertainty  also  arises  due  to  different  interpretations  and  practices 
across the Member States (as, for example, concerning the use of fictitious or alternative 
methods of service or varying practices relating to costs of serving documents) and a lack 
of information of those. This uncertainty is likely to evolve in the status quo due to more 
fragmented approaches being used. 

Issues with legal uncertainty can lead to inefficient judicial proceedings and undue costs 
for  citizens  and  businesses.  In  the  baseline  scenario,  the  achievement  of  this  objective 
would continue to be limited by the lack of clarity identified in relation the application of 
the Regulation. 

Efficiency 

The efficiency of the status quo is limited. Although the assessment of efficiency in 
the evaluation did not indicate that the costs currently outweigh the benefits, going 
forward the current process of serving documents may become more cumbersome 

88 Case C-331/88 R v MAFF, ex parte Fedesa (1990) ECR I- 4023 

136 

 
  
                                                            
or incompatible with more modern processes at the domestic level, leading to more 
inefficiencies. 
Delays and costs are expected to remain at an equal level per case but increase at an 
overall  level  in  line  with  the  overall  increase  of  cases.  Postal  services  and  process 
services are expected to generate additional revenue also because of the increase in 
cases. 

According  to  the  evaluation  results  and  the  problem  assessment,  the  Regulation  is  not 
expected  to  be  able  to  fully  contribute  to  the  overall  efficiency  of  serving  documents 
across  borders.  The  problems  identified  in  relation  to  the  Regulation’s  efficiency  are 
expected  to  remain  important  or  even  increase  until  2030  and  will  affect  an  increasing 
number of citizens and businesses.  

Although all problems discussed in the problem assessment ultimately have an impact on 
the efficiency of the Regulation, the main drivers of inefficiencies are: 

  Reliance on paper based communication between Member State agencies; 
  Non-compliance with the time limits in the Regulation; 
  Limited or no access to direct and electronic means of serving documents. 

These  issues  have  impacts  on  costs  for  Member  State  public  authorities,  citizens  and 
businesses. 

Costs and benefits for public authorities 
The Regulation currently offers a number of benefits for the courts in the Member States 
through  the  standardised  approach  to  serving  documents  across  borders,  judicial 
cooperation  and  legal  certainty  through  the  mutual  recognition  of  service  through  the 
relevant agencies. As explained in the evaluation (Section 5.2) these benefits are felt to a 
different extent in each of the Member States, nevertheless it is clear that the Regulation 
has improved the efficiency of serving documents across borders. In the status quo, it is 
expected  that  these  benefits  will  increase  due  to  an  increased  application  of  the 
Regulation and broadened familiarity with the provisions and application in the Member 
States. However, the costs will also increase. 

The  costs  for  Member  States  are  also  somewhat  varied  depending  on  the  set-up  of 
receiving  and  transmitting  agencies  (i.e.  centralised  or  decentralised),  their  capacity  to 
deal with  requests under  the Regulation and the compatibility with internal procedures. 
Nevertheless, a number of common costs can be identified for each Member State: 

  Administrative costs, based on: 

o  Processing requests under the Regulation; 
o  Communications with transmitting/receiving agencies; 
o  Serving documents through post or judicial officers; 

  Costs for providing information to the e-justice portal.  

The administration of requests under the Regulation tend to differ between the Member 
States  depending  on  the  set-up  of  the  agency,  related  administrative  processes  and  the 
method  of  service  used.  Naturally,  where  complications  or  issues  arise,  the  costs  vary 

137 

 
even  more.  However,  for  processing  of  a  request,  the  estimated  costs  for  a 
receiving/transmitting agency are about EUR 60-70. This cost takes into account the time 
spent by the staff member on processing the request (approx. 2 hours89) and sending it by 
post90.  

The  costs  for  the  request  are  higher  if  the  transmitting  agency  requests  a  particular 
method  of  service  or  if  service  through  a  bailiff  is  used  by  default  by  the  receiving 
agency. Such costs are estimated to be around EUR 85 per request91.  

In addition, the costs of materials such as paper, envelopes, stamps etc. are borne by the 
agencies for administration of the requests.  

Under the status quo, administration costs are expected to increase heavily overtime with 
the higher number of cross-border cases and use of the Regulation. 

Member States are also obliged to provide information to the Commission for publication 
on the e-Justice portal relevant for the functioning of the Regulation. They are regularly 
prompted to check whether the information contained on the portal is up-to-date and are 
encouraged to inform the Commission proactively if any information needs to be edited 
on  the  portal.  The  cost  involved  in  complying  with  these  requests  is  not  deemed  to  be 
significantly burdensome for Member States and is not expected to increase over time in 
the baseline. 

Costs and benefits for citizens and businesses 
The benefits of the Regulation are clear from the evaluation. Although not fully meeting 
its  objectives,  the  Regulation  has  provided  a  mechanism  by  which  documents  can  be 
served  in  a  consistent  way  across  borders  while  offering  some  level  of  certainty  and 
protection of procedural rights.  

However, all types of legal proceedings – in one form or another – put a burden on the 
involved parties, such as: 

  Time taken to conclude the case;  
  Court fees; 
  Costs for legal advice; 
  Costs for service methods (i.e. bailiff fees, postage fees); 

.  

These are, however, specific to each legal proceeding and differ vastly between different 
types  of  cases,  across  Member  States  and  over  time.  Therefore,  it  is  not  feasible  to 
develop aggregate estimates in relation to the above aspects.92 

89 Based on data provided in the online survey. 
90  Based  on  priority  mail  prices  in  the  Member  States,  collated  by  single  Market  Scoreboard,  European 
http://ec.europa.eu/internal_market/scoreboard/_docs/2017/postal-

Commission, 
available: 
services/2017-scoreboard-postal-services_en.pdf  
91 See efficiency section of the evaluation – Section 5.2.2 

138 

 
                                                            
In the baseline scenario however, up until 2030, it is expected that the costs related to the 
time taken to conclude the case, costs for legal and court fees and stress related to serving 
documents will increase. As mentioned previously, mobility in the EU will increase, thus 
making  it  possibly  more  difficult  to  locate  addresses  and  reach  them  via  traditional 
methods like post. In addition, as the digital single market becomes more developed over 
time, citizens and businesses will expect quicker and less costly practices to cross-border 
communication. It is likely then that although the process will not change dramatically in 
terms of efficiency, it may be perceived as less efficient in 2030 given the context. 

For  businesses  involved  in  the  service  of  documents  (e.g.  process  servers,  bailiffs),  the 
revenue  generated  by  service  requested  under  the  Regulation  is  expected  to  increase 
somewhat  with  the  increased  number  of  cross-border  proceedings.  A  similar  impact  is 
expected for legal professionals dealing with cross-border civil and commercial matters. 

Coherence  

In  the  baseline  scenario,  the  overall  internal  and  external  coherence  of  the 
Regulation is expected to be ensured to a certain extent with both national and EU 
measures.  Digitisation  is  a  crucial  trend  that  will  challenge  the  coherence  of  the 
Regulation with other EU instruments and policies.  

The Regulation is largely coherent internally, and also externally with other EU policies 
having similar objectives, as well as national law.  

Under  the  baseline,  the  Regulation  is  expected  to  remain  coherent  internally  to  a  great 
extent. Nevertheless, it should be noted that the small internal inconsistencies identified 
by the evaluation (e.g. regarding the information and requirements regarding the right to 
refusal) would persist under the status quo.  

In  case  no  action  is  taken,  the  Regulation  will  still  be  aligned  with  other  EU  legal 
instruments  mentioned  under  Section  5.4,  but  only  to  a  certain  extent.  Certain  overlaps 
may  still  exist,  such  as the  overlap concerning  the  tasks  of  the  Central Bodies  to  serve 
documents under the Maintenance Regulation93. 

Digitisation  would,  however,  challenge  the  external  coherence  of  the  Regulation  with 
other instruments. Digitisation is actually a key driver of the Digital Single Market94, and 
the  Commission  has  developed  several  strategies  and  action  plans  in  order  to  promote 
this trend and achieve its full potential. These include the EU eGovernment Action Plan 

92 The evaluation, however, contains illustrative examples for these aspects. 
93 Council Regulation (EC) No 4/2009, ibid. 
94 European Commission, Communication on Digitising European Industry: Reaping the full benefits of a 
final, 

Digital 
http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=15267. 

COM(2016)180 

Market, 

Single 

139 

 
 
                                                                                                                                                                                 
2016-202095 and the e-Justice Strategy96. In the same line, the EU Member States and the 
EFTA  countries  signed  the  Tallinn  Declaration97  under  the  auspices  of  the  Estonian 
Presidency of the Council. This declaration reaffirms the political commitment to achieve 
the vision outlined in the eGovernment Action Plan.   

In more practical terms, the Commission together with the Member States is working on 
digital  (pilot)  projects  such  as  e-CODEX  in  order  to  improve  the  efficiency  of  judicial 
procedures  with  the  use  of  ICT.  This  project  is  already  in  place  for  two  instruments: 
European  Payment  Order98  and  European  Small  Claims99.  It  is  expected  that  the  e-
CODEX pilot would also be used in the future for other instruments, such as Regulation 
(EC)  1206/2001  on  taking  of  evidence  for  example.  In  the  baseline,  the  current 
Regulation  would  not  be  coherent  with  this  approach,  as  it  would  continue  to  lack 
provisions on the electronic service of documents or the use of e-CODEX. 

As for the data  protection, the GDPR100 will applied as  of May 2018. Nevertheless, no 
negative impacts are envisaged in the baseline as the current Regulation would still only 
apply when the address of the recipient is known.  

Impacts on fundamental rights  

The  baseline  scenario  still  ensures  access  to  justice  and  procedural  rights. 
Nevertheless,  some  difficulties  and  confusions  would  still  remain  under  the  status 
quo, hampering the rights of the parties. In addition, the protection of personal data 
is not considered to be affected by the current Regulation. 

As  described  in  the  section  on  effectiveness  above,  the  evaluation  revealed  that  legal 
practitioners,  citizens  and  businesses  currently  face  legal  uncertainties  and  delays  in 
cross-border  proceedings  where  the  Regulation  is  applied.  As  a  result,  the  current 
Regulation  will  have  an  impact  on  the  principle  of  non-discrimination  in  cross-border 
proceedings.  At  the  same  time,  it  is  not  expected  to  exert  an  impact  on  the  future 
protection of personal data.  

First and foremost, non-discrimination and the protection of procedural rights are of vital 
interest  to  any  person  involved  in  cross-border  judicial  proceedings.  This  being  said, 
some social groups might be more vulnerable (e.g. economically disadvantaged persons) 
than others to the problems identified for procedures under the Regulation. 

95 European Commission, Communication on an EU e-Government Action Plan 2016-2020. Accelerating 
the  digital  transformation  of  government,  COM(2016)179  final,  http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52016DC0179&from=EN.  

96 Strategy on European e-Justice 2014-2018, 21 December 2013 (2013/C 376/06). 
97  Tallinn  Declaration  on  eGovernment  at  the  ministerial  meeting  during  Estonian  Presidency  of  the 

Council of the EU on 6 October 2017,  

98 Regulation (EC) No 1896/2006, ibid., and Regulation (EU) 2015/2421, ibid. 
99 Regulation (EC) No 861/2007, ibid., Regulation (EU) 2015/2421, ibid. 
100 Regulation (EU) 2016/679, ibid. 

140 

 
 
                                                            
In practice, procedures under the Regulation for the cross-border service of documents do 
not  always  provide  fair  access  to  justice  for  the  parties  involved.  For  instance,  the 
procedure revolving around the right of refusal – being a fundamental procedural right of 
the addressee of a document to be served – remains unclear in large parts. 

Under  the  baseline  scenario,  the  abovementioned  confusion  due  to  legal  uncertainty 
negatively  affects  the  ability  to  choose  an  effective  method  of  service.  For  example, 
diverging  acceptance  of  methods  (especially  concerning  the  use  of  fictitious  and 
‘alternative’ service) in the different Member States causes ambiguity and fragmentation 
as well as an uneven approach to the procedural rights of the parties involved in cross-
border  proceedings.  At  the  same  time,  access  to  justice  may  not  be  guaranteed  to  the 
fullest  extent  under  the  Regulation  due  to  the  lack  of  a  legal  provision  allowing  the 
choice of service by electronic means. In practice, these aspects may cause stress, costs 
and delays for citizens, businesses, and public administrations.  

Under  the  baseline  scenario,  the  protection  of  personal  data  is  not  considered  to  be 
affected  by  the  current  Regulation.  External  factors  influencing  data  protection  and 
privacy are the General Data Protection Regulation (GDPR) and the growing threats to 
cybersecurity (also  affecting  public authorities). After  entering into force  in  May  2018, 
the  GDPR  is  expected  to  increase  awareness  on  the  issue,  prompt  actions  to  ensure 
security  and  integrity  of  databases  and  swift  reactions  to  breaches  of  privacy  in  the 
judiciary.  However,  data  protection  in  the  judiciary  will  continue  to  be  largely 
determined  by  national  decisions  and 
the 
agencies/authorities involved in the process of cross-border service under the Regulation. 
At  the  same  time,  the  incidence  of  attempted  attacks  on  public  IT  infrastructure  is 
expected to increase until 2030. This will also affect the judiciary in the Member States, 
depending  on  the  proliferation  of  electronic  communication,  court  IT  systems  and  the 
interconnectedness with other IT systems or databases.  

integrity  of  postal  services  or 

the 

Overall,  the  issues  identified  above  are  expected  to  remain  and  the  likelihood  of  their 
occurrence  to  increase  in  line  with  the  projected  number  of  cross-border  proceedings 
(applying the Regulation) until 2030. 

Environmental impacts 

In the baseline scenario, the environmental impacts of the Regulation are expected 
to increase due to the increasing number of cross-border proceedings, the service of 
documents via the service methods foreseen in its provisions, and continued paper-
based communications between the designated authorities.   

Under the baseline scenario, the main environmental impacts of the Regulation concern 
the  use  of  (non-)renewable  resources  due  to  paper-based  communication  and  the 
transport  of  documents  to  be  served  on  the  one  hand  and  persons  (i.e.  the  receiving 
agencies)  serving  the  documents  on  the  other.  The  environmental  impacts  of  both 
elements are expected to increase under the baseline scenario in line with the projected 

141 

 
 
increase  of  cross-border  proceedings  and  ensuing  instances  in  which  the  Regulation  is 
applied. 

As explained under Section 5.1.1, the receiving and transmitting agencies strongly rely on 
paper-based communication. Apart from the negative impacts in terms of costs for paper, 
toner  or  ink  and  postage  on  efficiency,  paper-based  communications  also  have 
implications for the environment. Presently, forms under the Regulation are often printed 
on  paper  whose  production  requires  renewable  resources  (such  as  wood),  consumes 
water and involves chemicals (e.g. brightening agents). Likewise, the production of toner 
requires (non-renewable) raw materials, e.g. plastic particles and other chemical products 
produced  using  mineral  oil.  Both  paper  and  toner  need  to  be  packaged  and  shipped  to 
end-users, leading to emissions from transport and handling. Both the production and use 
of these materials produce waste which may only be partially recycled (again requiring 
energy). 

According to interviewed stakeholders, another important source of waste are (printing) 
errors due to confusions or lack of knowledge on how to correctly fill in the documents. 
There  are  no  reliable  estimates  on  how  often  these  occur.  Nevertheless,  it  does  seem 
likely that this problem will remain or only slightly decrease under the baseline scenario. 
While individuals might learn from mistakes, no policy change will also not address the 
overall causes for confusion or technical mistakes. 

Finally, the service of documents via postal services under the present Regulation, which:  

  Require further material for processing (e.g. envelopes, wrapping); 
  Consume additional resources for transport (e.g. fuel in transport); and  
  Produce  greenhouse  gas  emissions  (e.g.  in  transport  via  trucks  and  delivery 

vehicles).  

In order to assess the development of environmental impacts under the baseline scenario, 
estimating the “carbon footprint” helps to illustrate the development described above. 

Estimate: Carbon footprint under the baseline scenario  
The “carbon footprint” estimate is a concept used in consumption-based accounting. For 
a  given  service  or  product,  the  estimate  includes  all  CO2  emitted  (e.g.  in  grams  or 
kilograms) to produce the final product or deliver the service (including emissions from 
intermediate inputs and including emissions abroad). 101  

101 For instance, the carbon footprint of the EU-28 measures how much CO2 was emitted due to EU-28's 
demand for products. For an explanation of the concept and exemplary summary statistics for the EU-
28, 
footprints, 
http://ec.europa.eu/eurostat/statistics-explained/index.php/Greenhouse_gas_emission_statistics_-
_carbon_footprints  

(2018):  Greenhouse  gas 

see  Eurostat 

emission 

statistics 

carbon 

- 

142 

 
                                                            
According  to  estimates  of  the  International  Post  Cooperation,  a  standard  letter  had  a 
carbon  footprint  of  37.2g  of  CO2  in  2015.102  Assuming  that  a  typical  communication 
between  the  receiving  and  transmitting  agencies  under  the  Regulation  using  postal 
services  involves  at  least  three  iterations,  this  would  result  in  111.6g  of  CO2  for  one 
cross-border proceeding.  
Combining  this  estimate  with  the  estimated  case  load  (presented  above  along  the 
economic model), the CO2 emissions from postage alone could have amounted to 207t in 
2017. In 2030, CO2 emissions from postage under the Regulation could reach a value of 
269t (an increase of 30%). 
However,  if  errors  occur  and  a  document  is  rejected  and/or  rectified  to  be  sent  again, 
communication  may  involve  more  iterations.  This  could,  in  turn,  increase  the  carbon 
footprint of communication under the baseline scenario considerably.  
Of course, these numbers only provide a very rough estimate, not accounting for recent 
environmental-friendly  developments  in  postal  delivery  (e.g.  projects  for  emission-
reduction, climate-neutral postage options, or the uptake in eMobility).  

102  International  Post  Corporation  (04.11.2016):  Postal  sector  continues  to  lead  in  carbon  emissions 
reduction  efforts,  Source:  https://www.ipc.be/en/news-portal/sustainability/2017/03/03/13/53/postal-
sector-continues-to-lead-in-carbon-emissions-reduction-efforts  

143 

 
 
 
 
                                                            
ANNEX 7: ASSESSMENT OF THE IMPACTS OF THE POLICY PACKAGE 

Effectiveness 

The assessment of effectiveness is based on the impact of the policy package on each of 
the specific objectives i.e. to: 

  further improve the efficiency and speed of judicial proceedings and thereby reduce 

the burden for citizens and businesses; 

  improve  access  to  justice  and  the  protection  of  the  procedural  rights  of  parties  to 

the proceedings; 

  reduce legal uncertainty. 

Under  the  policy  package,  the  effectiveness  of  the  Regulation  would  be  improved 
compared to the status quo. Mainly, the introduction of e-CODEX as a mandatory 
communication  tool  between  the  agencies  and  the  facilitation  of  electronic  and 
direct  service  will  contribute  to  the  efficiency  and  speed  of  proceedings,  lowering 
the burden of citizens and businesses. The contribution of the package to access to 
justice  and  legal  certainty  are  also  high  with  the  inclusion  of  measures  to  clarify 
ambiguities and locate an addressee. 

Further improving the efficiency and speed of judicial proceedings and thereby reducing 
the burden for citizens and businesses 
The  policy  package  will  reduce  undue  delays  for  citizens  and  businesses  involved  in 
cross-border  proceedings,  chiefly  with  the  introduction  of  e-CODEX103  as  a  tool  for 
communication between the authorities – but also through measures which will: 

  clarify ambiguities in relation to the application of the Regulation; 
  assist in locating an addressee and clarifying the address; 
  facilitate the uptake of electronic means (of directly) serving documents; 
  strengthening the quality of postal service; and 
  facilitate access to direct service in the Member States. 

Use of e-CODEX 
As explained in the problem assessment, undue delays and costs are associated with the 
lengthy  and  paper-based  communication  processes  between  transmitting  and  receiving 
agencies. The baseline scenario calculations estimate that the processing of one request 
for  service  can  take  up  to  2  months  when  no  complications  arise.  When  further 
information  is  sought  or  the  request  is  unclear,  requests  for  service  can  be  delayed  an 
additional 4 weeks. 

103 e-CODEX is a tool that supports the electronic communication between citizens and courts and between 

Member State administrations in civil cross-border proceedings. 

144 

 
 
 
 
 
                                                            
With  the  use  of  e-CODEX,  agencies  will  have  access  to  direct  communication  and 
transmission of documents, thereby reducing the overall time for processing a request by 
about 3 – 9 days104. In addition, the system supports other measures in the policy package 
such as those that clarify ambiguities in the Regulation. For example, even if additional 
communications  are  necessary  to  clarify  the  request  (despite  measures  in  the  policy 
package to  clarify  ambiguities), the  process  will  still  be  quicker than in  the  baseline  as 
communication is accelerated though e-CODEX. In addition, as a consequence of more 
efficient  communication  between  the  agencies  and  reliable  judicial  assistance,  cross-
border  proceedings  will  be  accelerated,  and  carried  out  with  greater  legal  certainty, 
leading to less grounds for challenges and problems105 at the later stage of enforcement.  

Overall,  the  use  of  e-CODEX  for  communications  between  agencies  in  the 
Regulation  is  expected  to  have  a  high  positive  impact  on  improving  the  efficiency 
and speed of judicial proceedings. 

Measures to clarify ambiguities relating to the application of the Regulation 

The  measures  to  clarify  ambiguities  in  the  Regulation  are  either  legislative  or  non-
legislative  measures.  Legislative  measures  include  codifying  a  definition  for  extra-
judicial  documents,  indicators  to  help  the  assessment  of  language  skills,  introducing 
uniform principles (as minimum standard) for the use of fictitious and alternative service 
methods  against  an  addressee  with  a  residence  or  seat  in  another  Member  State  and 
clarifying the uniform standard character of conditions for postal service (Article 14). As 
a  non-legislative  measure,  the  e-Justice  portal  will  also  include  fields  containing 
information on the approach to costs in the Member States. 

As  explained  in  the  problem  assessment,  ambiguities  in  the  Regulation  often  lead  to 
undue costs and delays for citizens and businesses involved in cross-border proceedings. 
This is because requests that are sent due to different interpretations or applications of the 
Regulation can lead to confusion for both parties (and time spent trying to figure out the 
approach),  requests  being  returned  to  applicants  and  additional  litigation  or  disputes  to 
clarify the meaning of provisions. 

Overall,  the  measures  to  clarify  the  ambiguities  are  expected  to  have  a  medium 
positive  impact  on  the  reduction  of  burdens  for  citizens  businesses  (and  Member 
States) as documents can be served more efficiently across borders. 

104  Draft  Commission  Staff  Working  Document.  Impact  Assessment.  Cross-border  e-Justice  in  Europe. 
Accompanying  the  document:  Regulation  of  the  European  Parliament  and  of  the  Council  on  the 
computerised cross-border communication in judicial proceedings (eCODEX) (unpublished – provided 
to the study team by the EC). 

105 E.g. because deficient service is invoked as a ground of refusal. 

145 

 
 
 
                                                            
Assistance provided by the Member States in locating an addressee 

The  policy  package  introduces  a  few  new  measures  with  regard  to  the  problems 
associated with the situation where the physical address of the addressee is not known or 
proves to be incorrect or obsolete: 

  Member States have to ensure that they provide assistance to persons interested in 
legal  proceedings  from  other  Member  States  in  finding  information  about  the 
physical whereabouts of their adversaries. In this flexible systems, Member States 
shall  choose  at  least  one  of  the  following  tools  by  which  they  provide  this 
assistance: 

  Their  courts  or  authorities  shall  provide  judicial  assistance  upon  the  request  of 
courts or transmitting agencies from other Member States to determine the current 
address of a person in their territory , or 

  Their national domicile registers shall accept applications from persons interested 
in  legal  proceedings  in  other  Member  States  forwarded  to  these  registers 
electronically, via the European e-Justice Portal, or  

  They  have  to  provide  detailed  information  (with  appropriate  hyperlinks)  on  the 
tools available for right seeking persons from other Member State for purposes of 
clarifying the physical address of a person in their territory;  

  Obliging  courts  seised  with  legal  proceedings  in  the  Member  State  of  origin  to 
send, in the context of their duty under Article 19(1) and (2) of the Regulation, alert 
messages  through  all  means  of  communication  which  are  known  and  reasonably 
likely to be accessible exclusively to the addressee. 

In  the  first  measure,  the  burden  from  undue  costs  and  delays  involved  in  cross-border 
proceedings is expected to decrease to some extent. Although it is impossible to assess 
the  overall  magnitude  of  this  problem,  in  lack  of  available  statistics,  since  the  EU 
Regulation currently does not apply to situations where the address of the person to be 
served is not known, we may deduct indirectly from the high rate of default judgments106, 
that  number  of  instances  where  the foreign  defendants are  actually  not  informed  of  the 
legal  proceedings  instituted  against  them  abroad  is  significant.  We  may  assume  that 
frequency of the issue is expected to decrease. Currently, claimants in legal proceedings 
with  no  information  about  the  address  of  their  adversaries  abroad  (e.g.  proceedings 
against private individuals based on non-contractual claims) are left without any help in 
locating  their  counterparts.  With  the  alternative  set  of  options  outlined  above,  these 
claimants will receive effective assistance in those Member States which will opt for the 
alternatives under i. or ii., whereas they will receive a useful guidance from where they 
can move on in getting to the information needed in those Member States which will opt 
for  the  alternative  iii.  With  the  increase  of  the  successful  address  enquiries,  we  may 
reduce  the  instances  of  failed  service  of  documents,  and  thereby  will  contribute  to  the 
decrease of the number of default judgments which were rendered without the defendant 
having been actually informed. This latter element would also reduce the delays in cross-

106 See p. [40] of the Evaluation Report  

146 

 
                                                            
border litigations which are caused by the remedies and reliefs applied by the defendants 
who did not appeared.      

The  second  measure  is  activated  once  the  document  has  been  returned  to  the  receiving 
agency  because  the  service  is  unsuccessful.  In  the  status  quo,  the  document  would  be 
returned  to  the  transmitting  agency  with  a  certificate  of  non-service  from  the  receiving 
agency. This leads to additional time spent on the communication back to the originating 
Member  State  and  the  service  to  be  attempted  again.  Although  the  introduction  of  e-
CODEX  would  already  simplify  this  process,  making  the  communication  direct  and 
electronic, the issue could be further remedied by the receiving agency undertaking some 
additional actions to reach out to the addressee. Although this is a somewhat unchartered 
area for the moment, some courts within and outside the EU have effectively used email 
and social media as alternative forms of service.  

Case examples using social media as a service method 
In the UK, the case of Blaney v Persons Unknown the High Court authorised a claimant 
to serve on an anonymous Twitter user by sending a direct message containing a link to 
the  injunction  against  him.  This  is  a  situation  where  the  exact  whereabouts  of  the 
defendant where not known and the claimant was unable to locate the defendant in order 
to serve him through traditional means.  
In  the  case  of GYH  v  Persons  Unknown107,  the  High  Court  granted  an  interim  non-
disclosure  order  to  an  addressee  via  Facebook.  After  ensuring  that  all  practicable  steps 
have been taken to identify the defendant, this remained the ultimate way to reach him. 

Although the preferred option does not oblige agencies to attempt service of documents 
through social media, the above case examples point out the practical benefit of such an 
approach and demonstrate the shift of some judicial systems towards a more widespread 
use and acknowledgement of modern communication methods. The proposed measure in 
the  preferred  policy  option  only  obliges  the  agencies  in  the  Member  States  to  look  for 
other  possible  ways  of  alerting  the  addressee  that  service  of  a  document  has  been 
attempted. In good faith, it is presumed that the addressee would present him/herself to 
the court for receipt of the document. For optimal impact, this measure should be a first 
step  before  considering  alternative  methods  of  service  which  may  not  actually  be 
effective  at  providing  notice  to  a  person  anyway.  Thus,  as  a  potentially  more  effective 
option to alternative service methods, the use of other channels to alert the addressee as 
to  the  existence  of  the  document,  undue  costs  and  delays  for  citizens  and  businesses 
would be reduced. 

Overall, these measures are expected to have a medium positive impact on the issue 
of locating an addressee or effectively reaching out to them. These measures would 
facilitate  access  to  justice  of  the  parties,  as  the  receiving  authorities  would  be 
obliged to actively clarify the address, facilitating the efficient and speedy service of 
documents.  

107  GYH  v  Persons Unknown (Responsible for  the  Publication of Webpages)  [2017]  EWHC 3360.  Royal 
Courts of Justice (UK) – 19.12.2017; http://www.bailii.org/ew/cases/EWHC/QB/2017/3360.html  

147 

 
 
                                                            
Facilitate the uptake of electronic means of serving documents 

The  policy  package  introduces  two  new  measures  to  facilitate  the  uptake  of  electronic 
service of documents: 

  Introduce  cross-border  electronic  service  as  an  accepted  method  of  service  under 
the  Regulation,  provided  that  this  complies  with  some  uniformly  defined 
conditions: 

a) the document is transmitted electronically to an end-user who is a client of a 
qualified  Electronic  Registered  Delivery  Service  (ERDS),  according  to  the 
standards of eIDAS Regulation, or 

b) the document is sent to another electronic mailbox or user account, if there is 
an  express  consent  by  the  recipient  in  the  individual  case  to  use  this  account 
for purposes of serving on him/her.; 

  Introducing  a  “digital-by-default”  principle  for  communications  and  transmission 
of documents between transmitting and receiving agencies under the Regulation. 

These  two  measures  effectively  contribute  to  reducing  the  burden  of  undue  costs  and 
delays  for  citizens.  The  inclusion  of  ERDS  as  a  valid  method  of  service  under  the 
Regulation  will  as  a  minimum  facilitate  its  use  and  recognition  in  cross-border 
proceedings. Although its expected take-up cannot be predicted, there is no uncertainty 
as  to  its  recognition  as  a  method  of  service  in  cross-border  proceedings.  Similarly,  the 
legal  condition  of  an  express  consent  of  the  recipient,  given  in  and  for  the  individual 
legal proceedings, ensures that an electronic service of the document is valid even in the 
absence of the high technical standards of the ERDS, but still has full regard to the rights 
of the defence. In addition, the use of electronic service will be implicitly encouraged by 
the second measure, to the extent that such service is available in the receiving Member 
State.  Currently,  more  than  half  of  the  Member  States  allow  for  electronic  service  of 
summons  domestically108.  The  table  below  provides  an  overview  of  the  status  of 
electronic service in the Member States. 

108  Council  of  Europe’s  European  Commission  for  the  Efficiency  of  Justice  (CEPEJ)  Studies  no.  24, 
European  judicial  systems  Efficiency  and  quality  of  justice,  Thematic  report:  Use  of  information 
technology 
available: 
https://www.coe.int/t/dghl/cooperation/cepej/evaluation/2016/publication/CEPEJ%20Study%2024%2
0-%20IT%20report%20EN%20web.pdf  

European 

courts, 

2016, 

in 

148 

 
 
 
                                                            
Table 16: Member States allowing electronic service domestically109 

Member  States  where  e-service 
permitted 

is 

Member  States  where  e-service  is  not 
permitted 

AT, BG, CZ, DK, FI, EE, DE, HU, IE, IT, 
LT,  LV,  MT,  PL,  PT,  SI,  ES,  SE,  UK  – 
Scotland. 
Source:  Council  of  Europe’s  European  Commission  for  the  Efficiency  of  Justice 
(CEPEJ) 

BE,  HR,  CY,  FR,  EL,  LU,  NL,  RO,  SK, 
UK  –  England  &  Wales,  UK  –  Northern 
Ireland. 

Since  Member  States  will  not  be  obliged  to  consider  using  e-service  methods  for  the 
delivery of the document to the addressee (the issue of the route of the document from 
the  receiving  agency  to  the  addressee  will  be  further  on  left  entirely  to  the  law  of  the 
receiving Member State), the extent to which this will occur in practice is impossible to 
estimate  at  this  stage.  We  may,  nevertheless,  reasonably  expect  that  receiving  agencies 
will  serve  the  documents  which  are  transmitted  to  them  in  electronic  form  through 
electronic channels; insofar this is legally possible under their law.  

It is also likely that more Member States will adopt electronic service methods over time 
which will help increase the speed of serving  documents and thus reduce  undue delays 
and costs for citizens and businesses (and authorities). 

Overall,  these  measures  are  expected  to  have  a  limited  positive  impact  on  the 
increased  uptake  of  e-service  methods.  Because  of  the  limited  ambition  of  the 
proposal  and because certain legislative proposals have to be made with regard to 
exceptions  to  the  general  principle,  its  uptake  will  remain  moderate  at  the 
beginning. 

Strengthening quality of postal service 

Although the key measure of the policy package is to encourage the use of digital tools in 
the  transmission  of  documents  between  Member  State  agencies  and  direct  service 
through ERDS, service through post cannot be entirely disregarded. As demonstrated in 
the evaluation and problem assessment, service by post can be improved to some extent. 
The  measure  adopted  for  strengthening  the  quality  of  postal  service  involves  the 
introduction of a specific uniform return slip (acknowledgment of receipt) through which 
documents  under  the  Regulation  has  to  be  served  by  postal  operatives.  Accompanied 
with  some  specific  procedural steps postal service operators should follow in  course of 
the delivery of the documents, this measure is expected to have an impact on the number 
of instances where service is deficient due to incomplete acknowledgements of receipt or 
ambiguity  as  to  who  actually  received  the  documents.  In  this  regard,  strengthening  the 
quality of service by post will also expected to reduce undue costs and delays for citizens 
caused when service is regarded as deficient.  

109 Ibid, annex 1.  

149 

 
                                                            
Overall,  these  measures  are  expected  to  have  a  medium  positive  impact  on  the 
quality of service by post under the Regulation. From experiences of Member States 
where the postal service of judicial documents is carried out on the basis of a special 
regime  (different  from  the  rules  based  on  the  framework  of  the  Universal  Postal 
Union), we can expect an enhanced diligence from the postal service operators when 
delivering such documents.  

Facilitating access to direct service 

The policy package introduces two new measures to facilitate the access to direct service 
of documents: 

  Extending the scope of application of Article 15 so that also transmitting agencies 

(bodies, legal persons and bailiffs) of the MS of origin may apply for it; 

  Obliging  all  Member  States  to  ensure  that  foreign  persons  interested  in  legal 
proceedings  may  directly  turn  to  competent  persons  or  officials  in  their  territory 
with a request to serve a document. 

The  two  measure  above  essentially  open  up  the  scope  of  application  of  direct  service 
which  is  less  prone  to  undue  delays  and  costs  than  other  service  methods.  As 
demonstrated in the evaluation110, direct service, where no complications arise can be 2 
times  quicker  than  service  by  post.  Allowing  access  to  these  services,  even  in  the 
territory of Member States where currently this is not a possibility, will allow the choice 
for parties in a proceeding and also contributes to fair competition across the EU. 

Overall, allowing direct service to be both accessible by transmitting agencies and in 
the  territory  of  all  Member  States  allows  for  access  to  more  direct  and  speedy 
transmission of documents compared to the baseline. 

Improving access to  justice  and the protection  of the procedural rights  of parties  to  the 
proceedings 
In the baseline, the Regulation does not fully achieve the objective of increasing access to 
justice and, thus, the protection of the rights of the parties. Especially with regard to the 
remaining  issues concerning  application and interpretation of the right of refusal or the 
lack  of  provisions  on  fictitious  or  alternative  methods  of  service,  access  to  justice  for 
parties involved in cross-border proceedings is impeded.  

The  amendment  of  provisions  on  the  requirement  regarding  the  information  on  the 
right of refusal as well as clearer information on the legal consequences of exercising 
this  right  in  Annex  II  of  the  Regulation  would  increase  access  to  justice  through  clear 
rules  and  allowing  the  addressee  to  be  properly  informed  and  exercise  his  procedural 
right.  Adding  assessment  criteria on  the  required  language  skills  in  a  recital  of  the 
Regulation  would  further  protect  an  addressee  living  in  a  Member  State  from  getting 
involved  in  proceedings  without  (sufficient)  knowledge  of  language  and,  thus,  increase 
their access to justice. In addition, the implementation of a uniform legal principle in the 

110 See p. [] of the Evaluation Report 

150 

 
                                                            
Regulation to the use of fictitious and ‘alternative’ methods of domestic laws instead of 
the Regulation, when an addressee with residence or seat in another Member State has to 
be served, would eliminate the current ambiguity and fragmentation concerning the 
rights of parties in the Member States and the uneven approach to their procedural rights.  

Better access to justice would also be achieved by the policy package measures assisting 
the localization and clarification of addresses in cross-border cases. In addition, the 
legal obligation of the courts seized with the proceedings to send alert messages through 
all  means  of  communication  to  the  foreign  addressee  if  service  fails  or  his  physical 
address  is  unknown  would  facilitate  the  service  of  documents  and  lead  to  a  better 
protection of the procedural rights of the parties.  

Furthermore, the option of making electronic service a valid direct method of serving 
documents  would  highly  increase  access  to  justice  of  the  parties  as  it  implements  the 
interaction  through  electronic  means.  It  thus  facilitates  and  accelerates  cross-border 
communication, under due consideration of the parties’ preferences for communication.  

However,  also  soft  measures  such  as  providing  information  on  the  e-Justice  portal  can 
improve access to justice for businesses and citizens, who in this case would be provided 
with  the  relevant  knowledge  on  cross-border  service  and  thus  be  enabled  to  launch 
proceedings. 

Overall, the assessment clearly illustrates that implementing the policy package can 
contribute positively to the achievement of an increased access to justice. 

Reducing legal uncertainty 
Introducing new legal provisions and soft law measures within the context of the Service 
Regulation will have a positive impact on legal certainty.  

With  the  amendment  of  provisions  in  the  Regulation  on  the  requirement  to  always 
provide the information on the right of refusal as well as the amendment of its Annex II 
for clearer information on the legal consequences of the exercise of this right, the clarity 
and  predictability  of  the  procedure  revolving  around  the  right  of  refusal  could  be 
expected  to  increase.  The  latter  option  in  combination  with  the  implementation  of 
indicators in a recital of the Regulation helping to assess the addressee’s language skills 
when  exercising  their  right  would  further  provide  clarity  about  the  requirements 
regarding the translation of documents to be served.  

Also contributing to reducing legal uncertainty is the legal obligation of the courts seized 
with the proceedings to send alert messages through all means of communication to the 
addressee  if  service  fails  or  his  physical  address  is  unknown.  This  regulatory  option, 
combined  with  others,  would  provide  more  clarity  in  terms  of  due  diligence  to  be 
carried  out  before  issuing  a  default  judgment  according  to  Article  19  of  the 
Regulation.  In  general,  it  can  be  concluded  that  through  detailed  and  unambiguous 
provisions, legal clarity, predictability and reliability would be ensured. 

151 

 
Legal  clarifications  are  also  provided  through  interpretations  of  the  Court  of  Justice  of 
the  European  Union  (CJEU).  Codifying  the  CJEU  case  law111  such  as  by specifying in 
the  Regulation  a  clearer  definition  on  ‘extra-judicial  documents’  would  even  increase 
legal certainty in terms of a clear reliability on which documents are within scope of the 
Regulation. 

Introducing  legal  provisions  in  the  Regulation  as  minimum  standards  clarifying  the 
preference  of  the  Regulation  to  the  use  of  fictitious  and  ‘alternative’  (substituting) 
domestic  service  methods,  if  the  addressee  is  in  another  Member  State,  which  would 
imply a coherent interpretation of the scope of application of the Regulation in practice in 
all Member States, would very likely improve legal certainty.  

Similarly,  defining  at  EU  level  the  eligible  alternative  (substituting)  ways  of  the 
service of the documents by post under the Regulation, once the document cannot be 
handed over to the addressee on person, would contribute to the legal certainty, since this 
would  ensure  that  the  validity  of  the  delivery  of  the  document  under  Article  14  is 
assessed according to the same standards in all Member States. In the case, there will be 
a  greater  clarity  about  the  types  of  methods  of  service  accepted  and  consistency  of 
practice to rely on in all Member States. 

It is inherent to the principle of legal certainty that its assessment especially focuses on 
those  options  of  the  policy  package  that  propose  legal  changes  and,  thus,  often  itself 
already aim in particular at reducing uncertainties. Soft measure options, however – such 
as the provision of information on the e-Justice portal – may also increase legal certainty 
by  improving  the  awareness  and  understanding  of  the  functioning  of  the  Regulation 
among citizens and legal practitioners. 

Some  of  the  options  included  in  the  policy  package  do  not  affect  legal  certainty  at  all. 
However, there is no option that would have a negative effect, which is why the policy 
package can be considered as having a highly positive impact on legal certainty. 

Efficiency 

The  assessment  criterion  efficiency  relates  to  the  relationship  between  costs  and 
benefits – neither the absolute costs nor benefits. This means that efficiency concerns the 
extent to which the objectives of the Regulation are achieved at a reasonable cost. 

The  policy  package  is  expected  to  generate  certain  costs  for  Member  States  but 
significant benefits for citizens and businesses involved in cross-border proceedings. 
The main cost driver for Member States is associated with the implementation of e-
CODEX as a mandatory tool for transmitting and receiving agencies. Nevertheless, 
on balance the costs do not outweigh the benefits. 

111 CJEU 25.06.2009 – C-14/08 - Roda Golf & Beach Resort SL; CJEU 11.11.2015 – C-223/14 – Tecom 

Mican SL 

152 

 
 
                                                            
For the assessment, it is crucial to look into the costs and benefits for different  types of 
stakeholders in both a qualitative and quantitative way. 

The impacts on the following types of stakeholders are discussed within this section: 

  Member States’ public authorities, incl. impacts on national judicial systems; 
  Legal professionals (in particular judges and lawyers); 
  Businesses as service providers, e.g. in relation to postal services or IT consulting; 

and  

  Citizens and businesses, as parties to legal proceedings. 

An assessment of costs and benefits is provided below. 

Costs and benefits for Member States’ public authorities (incl.  
central bodies, courts) 
This  section  provides  assessment  of  cost  and  benefits  for  Member  States’  public 
authorities. 

Costs for public authorities 

Under the policy package, Member States’ public authorities are expected to incur costs 
compared to the baseline scenario in relation to: 

  The provision of additional information for the e-Justice portal, awareness raising 

and training activities; 

  Development, implementation, and maintenance of: 

a.  e-CODEX as the default channel for electronic communication and document 

exchanges between transmitting and receiving agencies;  

b.  Costs  for  acquiring  special  acknowledgments  of  receipt  for  service  of  the 

documents by post; 

  Administrative burden in relation to: 

a.  Conducting additional efforts to locate an addressee or clarify the address. 

These are mostly costs that Member States’ public authorities are not expected to incur 
under the baseline scenario. Although public authorities are also expected to incur costs 
with  regard  to  administrative  burden  in  the  baseline  scenario  (due  to  paper-based 
communication, ambiguities etc.), the magnitude of the overall cost burden is expected to 
be higher under the policy package, mainly due to new measures and the introduction of 
e-CODEX. The costs are explained below. 

  The  provision  of  additional  information  for  the  e-Justice  portal,  awareness 

raising and training activities 

The policy package contains a number of new fields of information to  be contained on 
the  e-Justice  portal.  The  main  addition  to  be  provided  on  the  portal  is  information  on 
national approaches to costs: Member States will need to clarify whether agencies seek 
costs  for  the  service  of  documents  by  post  or  direct  service  means.  The  following 
additional fields are suggested under the website heading “Article 11 – costs of service”: 

153 

 
  The  use  of  service  by  a  judicial  officer  or  to  a  person  competent  by  receiving 

agencies amount to a cost of X; 

  Inclusion of instructions of payment of fees per receiving agency including: 

o  Whether payment is in advance or upon service; 
o  Bank account number; 
o  Communication on payment; 
o  Provision of receipts or equivalent. 

The costs for the provision and maintenance of these additional fields are not deemed to 
be  very  high  as  information  is  already  being  provided  to  the  Commission  for  these 
purposes.  

In  addition,  the  policy  package  contains  a  number  of  clarifications  and  new  legislative 
measures  that  will  require  some  consultation  by  Member  State  authorities  before 
interacting  with  the  Regulation.  In  particular,  agencies  and  central  bodies  will  need  to 
become  acquainted  with  their  obligations  in  assisting  to  identify  the  address  of  the 
recipient,  using  e-CODEX  for  communication  with  other  agencies/bodies.  In  addition, 
they will have to ensure the documents being served under the Regulation comply with 
the  codified  definition  of  extra-judicial  documents,  alternative  and  fictitious  service 
methods  of  domestic  laws  are  preferred  compared  to  the  use  of  the  Regulation  only 
within the principles set and that information on the right to refusal is always provided in 
all EU languages. 

These  costs  are,  however,  not  specific  to  the  specific  policy  package  but  could  be 
incurred under any configuration of options compared to the baseline scenario. The costs 
are  also  not  seen  as  actual  cost  increase  for  authorities  but  rather  “business-as-usual” 
costs since it is required for their function. 

As suggested under the policy package, the changes to the service of documents should 
be  accompanied  by  some  awareness  raising  (and  possibly  training  materials).The  costs 
for  awareness  raising  activities  are  dependent  on  the  exact  scope,  means  and  target 
groups  of  the  activities.  The  costs  would  be  shared  between  the  Commission  and  the 
Member States, e.g. through co-financing, and spread across the next couple of years as 
awareness raising is expected to be a continuous effort.  

  One-off and recurring costs for connecting to e-CODEX  

Costs related to the development, implementation, and maintenance of e-CODEX as the 
default channel for electronic communication and document exchanges would be shared 
by  the  Commission  and  the  Member  States112,  e.g.  through  co-financing,  and  spread 
across the next couple of years as awareness raising is expected to be a continuous effort.  

112 For instance, costs could be split 50%/50%, or according to the responsibilities over the phases of the 
workflow  (connecting  access  points  to  national  gateway:  Member  States;  interactions  between  the 
national gateways: EU). 

154 

 
                                                            
It  is  expected  that  e-CODEX  would  necessitate  both  one-off  capital  expenditures 
(CAPEX), e.g. for the development and acquisition of respective technology, as well as 
recurring operational expenditures (OPEX) for its implementation and maintenance. The 
annual OPEX is  expected to  decrease  incrementally over time due to  public authorities 
gaining experience and expertise regarding e-Delivery. This means that public authorities 
are expected to become more efficient over time. 

The  e-CODEX  draft  Impact  Assessment113  indicates  that  acquisition  costs  for  the  e-
CODEX hardware  are marginal  at one-off costs of approx. EUR 15 000 (CAPEX) and 
approx. EUR 2 000 (OPEX) annually for hardware maintenance. This cost concerns the 
deployment  of  the  national  connector  and  gateway  which  are  the  components  of  the  e-
CODEX enabling the interactions between the relevant national IT systems of the various 
Member States.  

Of course, Member States have to ensure that all their national transmitting and receiving 
agencies (and central bodies) at local level will be connected to their national gateway, so 
that all of these local agencies serve as e-CODEX access points in the national system. In 
this regard, certain costs are to be expected associated with the modification of existing 
national  systems  to  enable  their  linkage  and  interoperability  with  a  national  e-CODEX 
access point. Furthermore, those agencies, which do not currently have any national IT 
infrastructure  allowing  for  the  sending  and  receiving  of  cross-border  requests,  would 
have to establish such. The estimated costs in this regard are difficult to estimate, given 
the  diverse  national  context,  but  the  average  cost  in  the  case  of  a  central,  web-based 
solution  is  estimated  to  be  in  the  20.000  –  50.000  EUR  range.  We  do  not  calculate 
hardware  acquisition  costs  in  the  context  of  end-user  hardware  and  software  costs,  , 
because we assume that all agencies and bodies designated under the Regulation (courts, 
bailiffs, governmental authorities) have internet connection and, at least, one PC point.   

In addition to the estimate above, the e-CODEX Impact Assessment mentions that costs 
related to installation, integration (into the national systems), and testing of the eCODEX 
infrastructure could add up to around 76 person days (relevant costs are mainly driven by 
the human resource cost of personnel needed).  

It  is  to  be  noted  that  costs  falling  to  a  Member  State  under  the  proposed  policy  option 
may    be  more  limited,  since  those  Member  States  (and  there  are  several  of  them)  who 
have  already  deployed  the  necessary  infrastructure  in  the  context  of  the  previous  e-
CODEX  pilot  projects  may  choose  to  reuse  this  infrastructure  (national  connector  and 
gateway) for purposes of the communication system to be established under the Service 
Regulation.  

113  Draft  Commission  Staff  Working  Document.  Impact  Assessment.  Cross-border  e-Justice  in  Europe. 
Accompanying  the  document:  Regulation  of  the  European  Parliament  and  of  the  Council  on  the 
computerised cross-border communication in judicial proceedings (eCODEX) (unpublished – provided 
to the study team by the EC). 

155 

 
                                                            
For  the  sake  of  completeness,  it  should  be  noted  that  the  e-CODEX  draft  Impact 
Assessment  also  gives  estimates  on  the  costs  needed  for  the  implementation  and 
maintenance of the entire e-CODEX community at EU level, the financing of which will 
be considered under other initiatives and from other resources, consequently these costs 
are not to be regarded in our assessment.  

  Costs for using a specific return slip for postal service 

Under the policy package, transmitting agencies transmitting agencies will be obliged to 
enclose to their applications for service by post under Article 14 of the Regulation a new 
type  of  acknowledgment  of  receipt,  and  possibly  apply  special  labels  to  the  documents 
sent for service through this method. The labels, could cost approximately EUR 0.70 per 
each label114. At the EU level, assuming  that  on average,  documents are served in  each 
case,  the  overall  costs  could  amount  to  EUR  1  million  per  year  across  the  EU115.  The 
costs for individual Member States would naturally be different depending on the number 
of requests they send under the Regulation. 

  Administrative  costs  to  conduct  additional  efforts  to  locate  an  addressee  or 

clarify the address 

The policy package obliges Member States to choose from a set of different options, by 
which  they  are  ready  to  help  persons  from  other  Member  States  interested  in  legal 
proceedings to determine the address of their counterparts in their territory. If the option 
chosen is the one on the provision of judicial assistance upon requests from the courts of 
other  Member  States,  or  the  one  on  the  acceptance  of  direct  applications  to  national 
domicile registers via the e-Justice Portal, this will entail additional administrative costs 
for  the  judicial  authorities  or  publicly  financed  registers.  (Costs  generated  by  the 
compliance with the third option on giving more detailed and structured information may 
be disregarded in this context, due to their marginal amount).  

With  regard  to  the  first  two  options,  it  may  be  assumed  with  certainty  that  only  those 
Member States will opt for either of them, for which these tools are anyway established 
in their legal system, and could consequently comply with the duties deriving from these 
options  without  the  need  of  adaptation.  With  regard  to  the  first  option,  relating  to  the 
provision of judicial assistance, it is to be noted that the commitment by States to execute 
requests for address enquiries in civil and commercial proceedings is a recurring element 
of  mutual  (bilateral)  judicial  assistance  agreements  of  public  international  law.  Such 
provisions  have  a  history  also  in  the  agreements  concluded  between  the  Member 
States116. With regard to the second option, relating to the direct applications to domicile 
registers via the e-Justice Portal, Member States which have in places publicly accessible 

114 Based on the costs of stickers from Vistaprint: 

https://www.vistaprint.com/?GP=03%2f23%2f2018+13%3a15%3a21&amp;GPS=4931816384&amp;
GNF=1. Other providers may offer different prices. 

115 I.e. (the average number of cases using postal service per year (2 120 367) * 4 documents to be served)* 

price for one sticker (EUR 0.70). 

116 See MLA-s between the MS previously belonging to the “communist block”, or the Nordic Convention.   

156 

 
                                                            
domicile registers have to ensure only that they extend this right to access to applications 
from  other  Member  States  and  that  they  accept  these  request  either  via  e-mails  (the 
request  submitted  through  the  relevant  web-service  of  the  e-Justice  Portal  would  be 
forwarded  to  the  electronic  account  of  the  national  register  indicated  by  the  Member 
State, and as of that moment of transmission the application will be treated in accordance 
with the relevant national rules in force there). Even if in this case, the domicile register 
of the Member State may expect the increase in the volume of applications, the additional 
workforce needed to address those extra applications could easily be compensated by the 
introduction of a reasonable fee corresponding the service (nothing in the EU Regulation 
would prevent a Member State to charge a fee for such a service).   

On  average  we  have  assumed  that  to  conduct  one  additional  action  for  clarifying  an 
address  would  consume,  at  a  minimum,  about  15  minutes  of  time  for  the  competent 
judicial authority or public register. This action could be e.g. entering the address into a 
(publicly not accessible) database, such as tax registers, to which the requested judicial 
authority has direct access to or forwarding a search request corresponding to the original 
request of the foreign court to the authority owing an appropriate database. Where more 
advanced means are available for the clarification of an address, the costs will be higher. 
For example, if the requested judicial authority has to make a formal request to the owner 
of the information at national level for confirmation of the address. The time for such a 
request would depend on the specific register accessed in the Member State concerned. 

In  addition,  the  policy  package  also  includes  a  measure  that  would  oblige  receiving 
agencies  to  send  alert  messages  to  the  addressee  through  all  means  of  communication 
which  are  known  and  reasonably  likely  to  be  accessible  exclusively  to  the  addressee, 
including e-mail addresses and social media accounts through private communications, in 
the case of a first unsuccessful service. Again, this is likely to consume at a minimum 10 
–  20  minutes  of  time  to  locate  a  suitable  channel  and  send  a  message  (e.g.  on  social 
media). 

Benefits for public authorities  

Under  the  policy  package,  due  to  implementation  of  a  “digital-by-default”  principle, 
Member States’ public authorities are expected to benefit from reduced costs compared 
to the baseline scenario in relation to: 

  Postal services; 
  Paper, envelopes, and printer cartridges; 
  Shelfs, archiving material (e.g. folders, clips), and space (i.e. office rent); and 
  Administrative tasks, e.g. for paper based communication. 

157 

 
Thus,  public  authorities  also  benefit  from  time  savings  due  to  more  efficient  legal 
proceedings.  This  leads  to  a  situation  in  which  more  legal  proceedings  can  be  handled 
within the same time, given constant staffing.117  

Moreover, public authorities are expected to benefit from increased legal certainty when 
and how to apply the Regulation, as well as from increased mutual trust between Member 
States.  This  is  expected  to  have  a  positive  impact  on  Member  States’  national  judicial 
systems. 

With the implementation of e-CODEX, public authorities are expected to incur less costs 
with  regard  to  postal  services  in  the  future.  The  eCODEX  Impact  Assessment,  for 
instance,  argues  that  the  replacement  of  postal  services  with  digital  communication 
generates potential savings, between EUR 8 and EUR 21 per legal proceeding.  

The  estimates  developed  as  part  of  this  study  show  that  it  can  be  expected  that  the 
Regulation would be applied in around 3.7 million cases per year on average until 2030, 
this could amount to potential savings of approx. EUR 30 to 78 million per year across 
the entire EU. 

In addition, public authorities are expected to save costs in relation to paper, envelopes, 
and printer cartridges. Based on the following assumptions, potential costs savings can 
be estimated to be approx. EUR 1.6 million across the EU per year.118 Moreover, public 
authorities  are  also  expected  to  incur  less  cost  regarding  shelves,  archiving  material, 
and archiving space. A German service provider119, for instance, charges the archiving 
of a running meter of folders (i.e. approx. 20 folders) with 25 Euro per meter as one-off 
cost,  plus  EUR  1.25  as  monthly  fee.  Assuming  that  the  postal  communication  (i.e.  4 
documents on average) concerning each of the approx. 3.7 million legal proceedings per 
year is stored in a separate folder in two Member States for at least five years, this could 
amount up to EUR 60 million per year across all EU Member States of potential savings 
through the implementation of e-CODEX.120 Since this estimate is based on the charges 
used  by  a  German  service  provider,  the  actual  cost  savings  are  very  likely  to  be  lower 
across the EU. 

Public authorities are also expected to benefit from decreasing administrative burden and 
thus labour costs regarding in particular communication, both in monetary (i.e. less staff 
costs) and temporal (i.e. less delays) terms. It can be assumed that each communication 
by post takes between 1 and 3 working days from the day the document is submitted until 

117 Efficiency gains in legal proceedings could, however, also lead to budget and staff cuts in practice. This 
would then imply that the number of legal proceedings that can be handled within a given time would 
remain constant while the necessary staff would decrease.  

118 The formula for this is: (((3.7 million legal proceedings * 4 documents) / 500 papers) * 2 Euro) + (((3.7 
million  legal  proceedings  *  4  documents)  /  500  envelopes)  *  15  Euro)  +  (((3.7  million  legal 
proceedings * 4 documents) / 1,400 prints) * 100 Euro) = 1 573 681. 

119 See: http://www.aktenfarm.de/index.php?id=15  
120 The formula for this is: (3.7 million legal proceedings * 2 Member States * 4 documents / 20 folders per 
meter * 25 Euro) + (3.7 million legal proceedings * 2 Member States * 4 documents / 20 folders per 
meter * 12 months * 1.25 Euro). 

158 

 
                                                            
it is delivered by post. This means, if authorities communicate four times with each other 
on  average  by  post  within  a  given  legal  proceeding,  communication  related  delays  can 
amount to 4 to 12 days (i.e. 8 days on average). Thus, if all 3.7 million legal proceedings 
are  delayed  by  8  days  on  average,  the  implementation  of  e-CODEX  could  potentially 
save up to 29.9 million working days per year across the EU from the overall length of 
all legal procedures. 

The time and efficiency gained through this could be used to either handle: 

  More legal proceedings within the given time by the same staff; 
  The same number of legal proceedings within the given time by less staff; and 
  The same number of legal proceedings with the given staff in less time. 

These  types  of  benefits  are  directly  linked  to  other  benefits  for  legal  professionals, 
businesses and citizens. 

Finally regarding increased legal certainty and enhanced judicial cooperation, the policy 
package  introduces  a  higher  level  of  speed  and  effectiveness  of  cross-border  service  of 
documents and has an overall positive impact on the judicial cooperation in the EU. In 
the  current  situation,  the  main  failure  of  judicial  cooperation  with  respect  to  the 
Regulation is the general insufficiency of mutual assistance on locating an addressee or 
clarifying  an  address  due  to  the  lack  of  information  on  the  channels  (if  any)  that  are 
available  within  each  Member  State.  The  inclusion  of  a  specific  provision  in  the 
Regulation  obliging  Member  States  to  provide  in  their  territory  at  least  one  tool  which 
effectively facilitates the clarification of the address for right seekers from other Member 
States  in  civil  proceedings,  would  highly  improve  judicial  cooperation  between  the 
authorities in that respect and, thus, contribute to the speed and effectiveness of service 
under the Regulation. 

Furthermore,  also  obligations  such  as  of  the  transmitting  agencies  to  apply  specific 
standardized international acknowledgment of receipts or to label envelopes for alert to 
the  official  nature  of  documents  to  be  served  or  of  the  Member  States  to  allow  direct 
service from other Member States, would improve judicial cooperation in the EU by an 
increased convergence in these methods of service. They would contribute to a smooth, 
secure  and  more  efficient  process  of  service  by  post  (Article  14)  and  of  direct  service 
(Article  15)  between  the  Member  States  under  the  Regulation.  The  same  counts  for 
electronic  service  through  the  option  expressly  allowing  and  promoting  this  type  of 
service under the Regulation. 

Other options foreseen in the policy package, such as the mandatory use of e-CODEX for 
e-communication  and  secure  transmission  of  documents  between  the  designated 
authorities or the better provision of information on the e-Justice portal by the Member 
States,  should  have  an  additional  positive  impact  on  judicial  cooperation.  These 
instruments will improve the communication between the Member States in an easy and 
secure  way  and,  especially  through  e-Justice,  provide  knowledge  about  the  relevant 

159 

 
methods and costs in order to ensure fast and effective procedure in cross-border service 
of documents. 

Costs and benefits for legal professionals  
This  section  provides  assessment  of  cost  and  benefits  for  legal  professionals  in  the 
Member States. 

Costs for legal professionals 

Legal  professionals  are  expected  to  incur  costs  with  regard  to  understanding  the  new 
legislation and practices. 

For lawyers, especially those working independent of larger law firms, corporations, or 
legal  networks,  having  to  analyse  and  digest  a  new  set  of  legislative  rules  can  be  time 
consuming (depending on the complexity of legislation), and thus factor in negatively on 
the revenue they are able to generate within a given time. An individual lawyer could, for 
instance, lose one hour of billable hours to check the legislation. 

These costs are however not specific to this policy package but could be incurred under 
any  configuration  of  options  compared  to  the  baseline  scenario.  The  costs  are  also  not 
seen  as  actual  losses  to  lawyers  but  rather  as  investments  they  would  have  to  make  in 
order to generate new business or as business-as-usual costs. 

Benefits for legal professionals 

On the other hand, legal professionals also benefit from the implementation of the policy 
package.  In  line  with  the  argumentation  and  estimates  outlined  above  concerning  the 
implementation of e-CODEX and Electronic Registered Delivery Service (ERDS), legal 
proceedings are expected to become more efficient and less time consuming. Lawyers, 
for  instance,  benefit  from  this  development  as  it  could  be  possible  for  them  to  handle 
more cases within the same time while simultaneously being able to decrease client fees 
in order to gain a competitive advantage vis-à-vis their peers (they would e.g. not have to 
forward  fees  for  postal  services,  paper,  envelopes,  print  outs  etc.  to  their  clients). 
Although this could lead to lower revenue on a case by case basis, it could be argued that 
lawyers’  overall  revenue  could  increase  through  competition  –  at  least  for  the  most 
efficient lawyers. 

Moreover, lawyers are expected to benefit from increased legal certainty when and how 
to apply the Regulation, as well as mutual trust between Member States.  

Costs and benefits for businesses as service providers  
The  implementation  of  the  policy  package  is  expected  to  have  positive  and  negative 
economic impacts compared to the baseline scenario on service providing businesses in 
different industries.  

Negative economic impacts are expected for the following types of businesses: 

  Postal service providers; 

160 

 
  Bailiffs/private process servers; 
  Paper and office supply providers; and 
  Providers of archiving shelfs.  

Through  the  implementation  of  e-CODEX,  as  well  as  other  distance  communication 
means  (ERDS)  the  revenue  of  the  abovementioned  types  of  businesses  is  expected  to 
marginally decrease as firms’ core businesses is not service provision related to judicial 
cooperation but is much wider than that. 

With regard to postal service providers, the impacts are less concerning. As many postal 
service providers are increasingly incorporating secure electronic delivery solutions into 
their service offering, the reduction of registered post is likely to be balanced by gains on 
these services. 

For bailiffs and private process servers, the impacts are likely to differ between Member 
States  based  on  the  competencies  allocated  to  these  types  of  businesses  nationally.  For 
example, in Member States where bailiffs are the only competent persons for the service 
of  documents,  they  are  expected  to  adapt  to  the  legislation  by  adopting  more  digital 
service solutions. However, in Member States where legal persons offering direct service 
methods are working only as an alternative channel for service, negative impacts may be 
stronger. 

In  contrast,  a  small  part  of  businesses’  revenue  would  be  shifted  from  the 
abovementioned to other types of businesses. The types of businesses that would benefit 
from the implementation of the policy package compared to the baseline scenario are: 

  Providers of IT consulting services; 
  Electronic registered delivery service (ERDS) providers; 
  Internet and telecommunication service providers; 
  Cloud storage service providers; and 
  Digital archiving service providers. 

The revenue of these types of businesses is expected to increase marginally as firms’ core 
businesses is not service provision related to judicial cooperation but is much wider than 
that. 

As per the analysis contained in the e-CODEX Impact Assessment, IT consulting service 
providers could gain around EUR 1 million per year for the implementation of e-CODEX 
per public authority. 

There  is  another  element  in  the  policy  package  which  will  clearly  generate  additional 
costs for postal service providers: the proposal that they should be obliged to use a new, 
specific  international  acknowledgment  of  receipt,  which  is  designed  for  the  service  of 
judicial and extrajudicial documents (directly) by post under the Regulation. The aim of 
such  a  return  slip  would  be  1)  to  ensure  that  information  on  the  circumstances  of  the 
(attempt)  of  the  delivery  of  the  document  to  the  addressee  is  reported  back  to  the 
transmitting  agencies  in  a  more  structured  and  detailed  manner  and  2)  to  immediately 

161 

 
alert,  by  its  distinctive  layout,  the  attention  of  the  postal  service  providers  to  the 
importance  of  the  consignment  and,  thereby,  to  ensure  special  care  in  course  of  the 
delivery.  

Obviously,  such  a  measure  would  generate  additional  costs  for  the  postal  service 
operators who are requested to carry out the delivery of the document under Article 14. 
While  majority  of  these  costs  would  in  principle  seem  to  be  of  one-off  nature,  mainly 
concerning the adaptation (installation of relevant procedures, training of personnel etc.), 
it is clear that these might be very varied among Member States due to the different use 
of letters in general and of such letters in particular as well as to the different financial 
position  of  operators  and  their  different  cost  structure.  However,  it  would  appear  that 
with  time  the  additional  costs  generated  by  the  use  this  special  acknowledgment  of 
receipt would fade out, on the basis of the assumption that those documents have to be 
delivered  by  the  postal  service  providers  anyway  to  the  addressee,  and  the  only 
difference  to  normal  mail  delivery  service  provided  by  these  operators  would  be  the 
different  legal  basis  of  their  duty.  Although,  these  additional  costs  of  adaptation  to  the 
new  obligations  should  not  be  overlooked,  it  is  also  important  to  note  that  in  the  vast 
majority of the Member States, postal service providers have to comply already now with 
specific  rules  of  their  national  civil  procedural  law  (supplementing  the  provisions  for 
letter post of the Universal Postal Union Convention), when they are requested to deliver 
judicial documents in legal proceedings. According to the information contained in the e-
Justice  Portal,  this  is  the  case,  among  others,  in  Austria,  Bulgaria,  Croatia,  Czech 
Republic, Germany, Hungary, Italy, Poland, Romania, Slovenia, Slovakia. In the number 
of  Member  States,  the  postal  service  providers  are  obliged  not  just  to  follow  specific 
to  use  special 
procedures  when  delivering,  but 
acknowledgment of receipts (e.g Hungary) or special envelopes (e.g. Romania, Slovenia, 
Italy). Obviously, the adaptation of postal service providers in these Member States will 
be  less  cumbersome,  since  here  they  just  have  to  change  the  already  existing  national 
regime to a European one.  

they  also  have  for  example 

Costs and benefits for citizens and businesses as parties to legal proceedings 
Citizens  and  businesses  as  parties  to  legal  proceedings  are  not  expected  to  incur  major 
costs  through  the  implementation  of  the  policy  package  compared  to  the  baseline 
scenario.  

The  policy  package  is,  however,  expected  to  bring  benefits  compared  to  the  baseline 
scenario such as: 

  Time savings due to more efficient procedures; and 
  Decreased legal fees paid to lawyers. 

If public authorities communicate four times with each other on average by post within a 
given legal proceeding, communication related delays can amount to 4 to 12 days (i.e. 8 
days on average). The implementation of e-CODEX could save this time for citizens and 
businesses.  

162 

 
This is of particular importance for businesses in the context of cross-border trade as the 
timely completion of a legal proceeding without undue delays can e.g. have implications 
in cases around financial claims. If legal proceedings are delayed, businesses may not be 
paid or supplied on time which could lead to detriment for clients. 

Moreover,  citizens  and  businesses  are  expected  to  benefit  from  decreased  legal  fees. 
Through  the  implementation  of  e-CODEX  and  increased  uptake  electronic  methods  of 
service,  legal  proceedings  are  expected  to  become  more  efficient.  As  most  legal 
professionals charge by the amount of time spent dealing with a case, the legal fees are 
likely  to  decrease  also.  Individual  decreases  of  fees  are,  however,  expected  to  be 
marginal on a case by case basis but could, however, sum up to a considerable amount 
across all legal proceedings in the EU and over time. 

Finally,  the  implementation  of  the  policy  package  is  expected  to  lead  to  less  stressful 
legal  proceedings  compared  to  the  baseline  scenario.  This  is  considered  to  be  an 
important non-monetary benefit for citizens. 

Overall, the implementation of the policy package is considered to be more efficient 
than the baseline scenario: 

  The  implementation  of  e-CODEX  under  the  policy  package  is  associated  with 
comparatively  moderate  initial  investments  (i.e.  capital  investments,  CAPEX)  for 
public  authorities  that  could  be  co-financed  by  the  European  Commission. 
Moreover, recurring operational expenditures (OPEX) are expected to be incurred 
by public authorities for the maintenance of the necessary hard- and software. 

  The  investment  into  technical  infrastructure  and  processes  is  expected  to  make 
legal  proceedings  more  efficient  which  is  expected  to  decrease  necessary  labour 
costs. This could mean that more legal proceedings could be handled by the same 
staff within the given time. In addition, the necessary investments are balanced by 
decreased  costs  for  postal  service  providers,  paper  and  office  supplies, as  well  as 
archiving  costs  that  would  have  to  be  invested  in  the  future  under  the  baseline 
scenario.  

  The  implementation  of  the  policy  package  is  expected  to  be  a  benefit  for  legal 
professionals, in particular lawyers. Although they would incur costs in relation to 
understanding  the  legislation  and  checking  the  extent  to  which  and  how  the 
legislation  would  apply  to  a  specific  legal  case,  it  is  outweighed  by  the  legal 
certainty and clarity compared to the baseline scenario. 

  Neither  negative  nor  positive  effects  are  expected  in  relation  to  the  economy 
overall.  It  is,  however,  expected  that  positive  economic  effects  of  the  policy 
package  for  specific  types  of  businesses  are  negative  effects  for  other  types  of 
businesses. For instance, the revenue generated for IT consulting service providers, 
as well as internet and telecom providers through the implementation of the policy 
package  can  also  be  regarded  as  a  loss  for  postal  service  providers  and  office 
supply providers.  

163 

 
 
  Citizens  and  businesses  are  expected  to  benefit  from  the  implementation  of  the 
policy  package.  In  particular  non-monetary  benefits  such  as  increased  access  to 
justice, freedom of choice, and decreased levels of stress within legal proceedings 
are  important  in  this  regard  –  especially  in  relation  to  vulnerable  persons  (see 
section  below:  ‘Impacts  on  diversity,  non-discrimination  and  the  protection  of 
personal data’). 

Coherence 

Under the combined policy package, the coherence of the Service Regulation would 
be improved compared to the status quo. The amendments introduced by the policy 
package would positively contribute to both the internal and external coherence of 
the Regulation.  

The  coherence  of  the  Service  Regulation  to  EU  and  national  law  would  be  improved 
compared to the baseline scenario.  

The Regulation would continue to be largely coherent internally, as well as in relation to 
EU  law,  national  law  and  bilateral  agreements.  In  addition,  the  policy  package  would 
contribute positively to the coherence of the Regulation.  

In  terms  of  internal  coherence,  the  provisions  policy  package  targeting  the  right  to 
refusal would enable to address the internal inconsistencies of the Regulation. On the one 
hand, the policy package would clarify the requirements regarding the information to be 
provided to the recipient concerning his/her right to refusal. On the other hand, the policy 
package  would  provide  the  necessary  indicators  to  assess  the  language  skills  of  the 
addressee as well as a clear explanation on the legal consequences of the refusal for the 
recipient.  The  policy  package  would  enable  the  Regulation  to  be  internally  coherent 
concerning  the  right  of  refusal,  reducing  in  the  confusion  and  the  diverging  practices 
concerning the right to refusal. 

As  far  as  the  external  coherence  is  concerned,  the  policy  package  would  oblige  those 
Member  States  including  the  direct  service  in  their  national  law  to  allow  it  in  cross-
border proceedings with the same conditions that are available domestically. This would 
ensure  the  removal  of  the  barriers  to  the  Internal  Market.  In  this  sense,  the  Regulation 
would be coherent with Article 26 TFEU as Member States that foresee direct service in 
their national  legal frameworks  would also have to  accept such  method in  cross-border 
proceedings.  Hence,  businesses  and  citizens  would  benefit  of  such  measure  in  any 
Member State (if the direct service were available). The coherence of the Regulation and 
the Treaties would be in this way improved. 

The  introduction  of  a  tool  for  electronic  communications  using  e-CODEX  are  in  line 
with  and  support  the  current strategies  of  the  Commission  in  the  context  of  the  Digital 

164 

 
 
 
Agenda and the e-Justice Strategy121. This amendment would also be in line with current 
the  use  of  electronic 
projects  ongoing 
communications in the area of justice.  

in  many  Member  States 

increase 

to 

The  use  of  e-CODEX  would  also  ensure  the  external  coherence  between  the  Service 
Regulation  and  other  legal  instruments  already  using  e-CODEX,  i.e.  the  European 
Payment Order122 or European Small Claims123. With respect to the introduction of the 
tool for electronic communications, we note that it aims at building on existing standards 
and platforms and that it is planned to use e-CODEX for the Evidence Regulation124.  

The  policy  package  would  amend  the  Regulation  in  order  to  introduce  provisions 
enabling the electronic service to end users in qualified Electronic Registered Delivery 
Services  (ERDS)  (according  to  the  standards  of  eIDAS  Regulation),  as  a  valid  direct 
method of serving documents. This provision would increase the coherence between the 
Service Regulation and the Small Claims Regulation125, whose Article 13 (b) provides 
rules on the electronic service of document. In addition, both regulations would clearly 
state that the prior consent of the party is required to serve a document electronically.  

Lastly, the policy package would introduce a “digital-by-default” principle in relation to 
the interactions between the designated authorities. Such principle would be aligned with 
the  future  legal  instruments  also  including  this  approach.  As  explained  in  the 
eGovernment  Action  Plan,  the  Commission  is  planning  to  gradually  introduce  this 
principle when interacting with external stakeholders, using eIDAS services126 (in 2018), 
eInvoicing127  (in  2018)  and  eProcurement128  (in  2019).  The  external  coherence  of  the 
Service Regulation with these instruments would be ensured in this respect. 

Overall, the external coherence of the Service Regulation would be improved under the 
policy  package.  Nevertheless,  small  overlaps  identified  in  the  evaluation  would  persist, 
regarding the overlap of tasks of the Central Bodies under the different legal instruments 
for the service of documents, such as the Maintenance Regulation129. 

121 Strategy on European e-Justice 2014-2018, 21 December 2013 (2013/C 376/06). 
122 Regulation (EC) No 1896/2006, ibid., and Regulation (EU) 2015/2421, ibid. 
123 Regulation (EC) No 861/2007, ibid., Regulation (EU) 2015/2421, ibid. 
124 See the separate volume on the Evidence Regulation produced under this assignment.  
125 Regulation (EC) No 861/2007, ibid., Regulation (EU) 2015/2421, ibid. 
126  Regulation  (EU)  No  010/2014  of  the  European  Parliament  and  of  the  Council  of  23  July  2014  on 
electronic  identification  and  trust  services  for  electronic  transactions  in  the  internal  market  and 
repealing 
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32014R0910&from=EN 

1999/93/EC, 

Directive 

127  Directive  2014/55/EU  of  the  European  Parliament  and  of  the  Council of  16  April  2016  on  electronic 
http://eur-lex.europa.eu/legal-

procurement, 

invoicing 
content/EN/TXT/PDF/?uri=CELEX:32014L0055&from=EN 

public 

in 

128 http://ec.europa.eu/growth/single-market/public-procurement/e-procurement_en 
129 Council Regulation (EC) No 4/2009, ibid. 

165 

 
 
                                                            
Impacts on fundamental rights 

The  policy  package  would  ensure  access  to  justice  and  an  equal  protection  of 
procedural rights, regardless of the Member State in question. Its provisions on the 
electronic service of documents and the electronic communications would be aligned 
with the data protection standards required. 

The  policy  package  would  address  several  issues  which  cause  legal  uncertainty  and 
delays under the baseline scenario. At the same time, the policy package would increase 
access to justice by promoting the use of electronic methods of service of documents and 
a more effective protection of the parties’ procedural rights. However, the effect of the 
policy  package  on  data-protection  will  largely  depend  on  the  implementation  at  the 
Member State level.  

First,  the  policy  package  promotes  electronic  service  of  documents  valid  under  the 
Regulation, thus contributing the fundamental right to an effective judicial remedy. 
This way, diversity of needs and efficient methods of service are acknowledged, as the 
parties  would  be  free  to  consent  on  accepting  correspondence  electronically  in  cross-
border proceedings. This additional method of service together with the proposed ‘digital 
by default’ principle is expected to not  only have  a positive effect on access to justice, 
but  also  contribute  to  faster  proceedings.  Furthermore,  it  reduces  costs  or  failures  of 
service  of  documents  experienced  otherwise,  where  an  inefficient  method  to  effect 
service would have been chosen due to a lack of options under the baseline scenario. 

Likewise,  the  clarification  provided  by  the  policy  package  on  the  definitions  and 
concepts would reduce legal uncertainty and speed up procedures under the Regulation in 
practice.  The  policy  package  would  contribute  to  more  clarity  and  predictability  of  the 
procedure revolving around the right of refusal of addressees and a better protection of 
their procedural rights. The policy package would in addition state the criteria to assess 
the language skills  of the  addressee. Such amendment would further  protect addressees 
ensuring they understand the content of the document they have been served on the one 
hand, and would safeguard the non-abuse of the right of refusal, thus equally protecting 
the plaintiff’s rights on the other hand. 

Second, the policy package would also have positive effects on non-discrimination. The 
policy package would contribute to a more equal access to justice as Member States will 
have to provide effective access for foreign persons to tools available in their territory for 
purposes  of  address  enquiry.  This  would  guarantee  that  the  addressee  actually  receives 
the document. In addition, the policy package would include standardized legal principles 
on the use of fictitious and ‘alternative’ methods of national laws to the detrment of the 
application of the Regulation, eliminating the current ambiguity and fragmentation under 
the  baseline  scenario  concerning  the  rights  of  parties  in  the  Member  States.  Lastly,  the 
policy package would also lay down a uniform time period for the availability to set aside 
a  default  judgment.  These  provisions  would  contribute  to  an  equal  protection  of  the 
procedural rights, regardless of the Member State. 

166 

 
However,  it  is  noteworthy  to  mention  that  some  aspects  of  the  policy  package  could 
entail  some  risks.  The  inclusion  of  electronic  service  might  increase  the  digital  divide. 
Although  this  method  would  not  be  mandatory  in  the  policy  package,  it  might  be  used 
without taking into account the lack of access to ICT of some segments of the population. 

Third, the proposed change towards using electronic communication through the use of  
e-CODEX  for  e-communication  and  secure  transmission  of  documents  and  the  CEF 
eDelivery is expected to exert effects on the protection of personal data. 

Technical implementation and operation would be determined and controlled by Member 
States themselves, even if the infrastructure would be partially developed and financed at 
the EU-level. Since e-CODEX is a decentralised system, there will be no data storage or 
data processing by the entity entrusted with the maintenance of the e-CODEX software 
components, beyond what is necessary to maintain contacts with the entities operating e-
CODEX access points. Considering that those entities that are responsible for setting up 
and  operating  the  different  e-CODEX  networks,  they  will  be  solely  responsible  for  the 
personal  data  transiting  via  the  access  points.  Data  protection  requirements  would 
therefore apply exclusively at national level for the different procedures where e-CODEX 
would  be  implemented.  Depending  on  whether  an  access  point  is  operated  at  EU  or 
national level, either GDPR or Regulation (EC) No 45/2001130 will apply. 

The entity which is entrusted with the operational management of the e-CODEX components at 
EU  level  would,  as  is  already  the  case,  have  to  abide  by  Regulation  (EC)  No  45/2001  when 
processing  personal  data,  and  will  have  to  abide  starting  with  May  2018  the  new  GDPR.  The 
GDPR would increase awareness on the issue, prompt actions to ensure security and integrity of 
databases and swift reactions to breaches of privacy in the judiciary.Lastly, important external 
factors  with  regard  to  the  protection  of  personal  data  that  would  affect  the  proposed 
policy package would be also the persistent threats to cybersecurity in the public sector. 
The  incidence  of  attempted  attacks  on  public  IT  infrastructure  would  be  expected  to 
increase  with  their  proliferation  until  2030.  These  would  be  expected  to  also  affect  the 
judiciary  in  the  Member  States,  and  their  impact  could  be  potentially  be  aggravated 
because  of  the  growing  interconnectedness  of  IT  systems  (nationally  and  at  the  EU-
level).  

Environmental impacts 

In  the  policy  package  is  expected  to  decrease  to  a  great  extent  the  environmental 
impacts  of  the  Regulation  as  it  would  introduce  electronic  provisions,  such  as  the 
electronic  service  of  documents  and  the  use  of  electronic  means  to  replace  the 
paper-based communications between the designates authorities. 

130   Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the  Council  of  18  December 
2000  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  by  the 
Community institutions and bodies and on the free movement of such data, OJ L 8, 12.1.2001, p. 
1–22.  

167 

 
 
                                                            
Compared  to  the  baseline,  the  policy  package  would  be  expected  to  have  a  number  of 
potential  positive  and  very  few  negative  impacts  on  the  environment.  This  impact  is 
driven by three elements in particular, namely: 

  The obligation for transmitting agencies to use specific forms of acknowledgment 

of receipt or to label envelopes containing documents to be served; 

  The introduction of electronic service of documents;  
  The  plan  to  replace  paper-based  communication  by  electronic  means  using  CEF 

eDelivery (eCODEX). 

The  policy  package  would  oblige  transmitting  agency  to  use  a  specific  standardized 
acknowledgment  of  receipt  for  postal  service  under  Article  14  of  the  Regulation. 
However,  the  forms  containing  the  new  “return  slips”  would  need  to  printed  and 
distributed to the relevant agencies, having a negative impact on the environment. 

As part of the policy package, the electronic service of documents would be included in 
the  Regulation  as  a  possible  method  to  serve  documents.  This  method  would  enable  to 
reduce the impacts on the environment as: 

  The document would not  need  to  be printed for its cross-border transmission  and 
(in case national law in the receiving Member States allows for electronic service 
to the addressee) for its service ; 

  The document would not be send via postal services; 
  No  physical  displacements  of  the  relevant  agency  would  be  needed  to  serve  the 

document. 

The  policy  package  would  thus  reduce  the  displacements  of  the  receiving  agencies  to 
serve the document, and affecting to some extent the pollution and/or carbon emissions. 
This being said, this policy package would also require technology to be put into place in 
order to enable the electronic service of documents. As a result, the final impact of the 
policy package depends to a large extent on the IT solutions and equipment required for 
its implementation. 

intended 

replacement  of  paper-based 

The 
electronic 
communication  via  CEF  eDelivery  is  also  expected  to  have  a  positive  environmental 
impact.  As  a  paperless  system,  CEF  eDelivery  would  reduce  the  use  of  resources  (e.g. 
water  and  wood  used  for  paper  production),  environmental  impacts  of  their  production 
(e.g. from the use of chemicals in paper production) and transporting paper to the buyer. 
In addition, the use of toner and ink is expected to be reduced.131  

communication  with 

According to interviewed stakeholders, one important source of waste are printing errors 
or  duplicate  prints  due  to  confusions  about  which  forms  have  to  be  used.  Electronic 
communication through the CEF eDelivery platform could address this cause of waste by 
implementing checks and guidance on how to fill in forms directly on the user interface. 

131 While this impact may not affect production and the supply chain for both goods presently, reductions 
in demand are likely to have an impact on production and transport these products in the long run. 

168 

 
                                                            
This way, even if a paperless administration within a competent court is not yet feasible 
(or desirable), waste of paper and toner could be reduced. 

Finally, electronic communication is expected to reduce the emissions from transport in 
postal services. Overall, it is reasonable to assume that modernisation of the judiciary in 
the  EU  Member  States  will  increase  the  amount  of  hardware  and  server  infrastructure 
used  on  a  daily  basis  until  2030  –  independently  of  any  amendments  to  the  Service 
Regulation. Thus, overall energy consumption of IT infrastructure is expected to increase 
regardless  of  the  policy  package.  Additional  electronic  communication  is  expected  to 
have an impact on energy consumption (due to increased network traffic). Compared to 
paper-based communication, however, the carbon footprint is expected smaller under the 
proposed changes in the policy packages (illustrated in the text box below).  

Estimate: Carbon footprint reduction under the policy package 
Again,  the  “carbon  footprint”132  concept  is  used  to  provide  an  illustrative  examples  for 
the estimated environmental impact.133 
As explained for the assessment of the baseline, a standard letter had a carbon footprint 
of 37.2 g of CO2 in 2015.134 Based on a widely cited estimate by Tim Berners-Lee from 
2010, a regular email produces 4g of CO2 whereas an email with a long attachment may 
have  a  carbon  footprint  between  19g  to  50g  (including  instances  where  emails  are 
forwarded).  We  assume  again,  that  a  typical  communication  under  the  Regulation 
between the receiving and transmitting agencies involves at least three iterations.  
Based on the estimated development of the case load under the Regulation (presented in 
the economic model above), the CO2 emissions from postage alone could have amounted 
to 207t in 2017. Using email, the carbon footprint would have amounted to 93t of CO2 if 
competent  the  relevant  authorities  would  have  served  the  documents  electronically.  In 
2030, CO2 emissions from postage under the Regulation could reach a value of 269t (an 
increase  of  30%).  Replacing  paper-based  methods  of  service  of  documents  with  the 
electronic  service  would  result  in  emissions  of  121t  of  CO2.  Based  on  this  simplified 
calculation, emission under electronic communication would be reduced by 148t in 2030 
(compared to the baseline scenario). 
Of course, these numbers only provide a very rough estimate and recent improvements in 
server  infrastructure  and  increased  share  of  renewable  energies  sources  used  to  power 
servers  (but  also  postal  delivery,  e.g.  using  e-Fuels)  may  have  changed  the  situation  to 
the  better.  However,  the  emission  of  CO2  is  expected  to  decrease  slightly  under  the 
policy package.135  

132  For  a  given  service  or  product,  the  estimate  includes  all  CO2  emitted  (e.g.  in  grams  or  kilograms)  to 
produce  the  final  product  or  deliver  the  service  (including  emissions  from  intermediate  inputs  and 
including emissions abroad).  

133 For an explanation of the concept and exemplary summary statistics for the EU28, see Eurostat (2018): 
Greenhouse  gas  emission  statistics  -  carbon  footprints,  http://ec.europa.eu/eurostat/statistics-
explained/index.php/Greenhouse_gas_emission_statistics_-_carbon_footprints  

134  International  Post  Corporation  (04.11.2016):  Postal  sector  continues  to  lead  in  carbon  emissions 
https://www.ipc.be/en/news-

reduction 
portal/sustainability/2017/03/03/13/53/postal-sector-continues-to-lead-in-carbon-emissions-
reduction-efforts  

Source: 

efforts, 

135 This assessment depends on two assumptions. First, is we assume that the size of documents transmitted 
will  be  comparably  small  in  most  instances  (amounting  to  several  kilobytes  for  text  and  forms  to 
several  megabytes  per  image  or  other  documents).  Second,  we  assume  that  new  technological 

169 

 
                                                            
 
developments will not dramatically decrease emissions from producing office supplies (paper, toner, 
etc.) or transport of freight (letters and parcels) until 2030.  

170 

 
                                                                                                                                                                                 
ANNEX 8: EVALUATION REPORT 

171 

 
 
   EUROPEAN COMMISSION  Brussels, XXX  […](2018) XXX draft  COMMISSION STAFF WORKING DOCUMENT EVALUATION Accompanying the document Proposal for a   REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  amending 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)   
 
 
Table of contents 

1. 

INTRODUCTION 

2.  BACKGROUND TO THE INTERVENTION 

2.1. 

2.2. 

Objectives and Intervention Logic of the Regulation 

Functioning of the Regulation 

2.2.1. 
2.2.2. 
2.2.3. 
2.2.4. 

Designation of specific bodies 
Transmission: means, acceptance, receipt and refusal of requests and documents 
Costs of transmission 
Protection of the defendant 

2.3. 

Baseline and points of comparison 

3. 

IMPLEMENTATION / STATE OF PLAY 

3.1. 

Description of the current situation 

4.  METHOD 

4.1. 

Short description of methodology 

4.1.1. 
4.1.2. 
4.1.3. 

The economic study 
The On-line Public Consultation 
Preceding evaluative exercises 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

4 

5 

5 

7 
9 
9 
10 
10 

11 

12 

12 

13 

13 
13 
14 
15 

16 

5.1. 

5.1.1. 

5.1.1.3. 

Effectiveness 

Achievement of the operational objectives 

5.1.1.1.  Overall efficiency of service of documents under the Regulation 
5.1.1.2. 
Preparation of the request and choosing the method of service 

Identifying the types of documents to be served 
Identifying the address of the person to be served 
Assessing whether translation is necessary 
Choosing the method of service 

16 
19 
20 
21 
22 
22 
23 
25 
26 
Service by transmitting and receiving agencies 
27 
Step 1: Locating the relevant agencies and sending the request 
Step 2: Transmission of documents between transmitting and receiving agencies (and subsequent 
28 
communications) 
30 
Step 3: Service of the document by the receiving agency 
31 
Step 4: Returning the certificate of completion or non-completion of service 
31 
33 
34 

5.1.1.4. 
5.1.1.5.  Direct Service 

Achievement of the specific objectives 

Service by postal services 

5.1.2. 

2 

 
 
5.1.2.1. 
5.1.2.2. 
in cross-border proceedings 

The right to refusal of documents 
Default judgments based on a failure to respond 
Issues affecting the rights of parties that are omitted from the Regulation 

35 
Improving the efficiency and speed of cross-border proceedings 
Improving access to justice and the protection of the procedural rights of parties involved 
35 
36 
38 
39 
5.1.2.3.  Minimising the burden for citizens and businesses involved in cross-border proceedings40 
41 
41 
41 

Ensure the smooth functioning of the area of freedom, security and justice 
Ensuring the smooth functioning of the Internal Market 

Achievement of the general objectives 

5.1.3.1. 
5.1.3.2. 

5.1.3. 

42 
43 
44 
45 
45 
46 

50 

54 
54 
55 
55 
56 
62 
63 

64 

65 

65 

66 

67 

68 

69 

5.2. 

Efficiency 

5.2.1. 
5.2.2. 

Compliance costs for Member States 
Costs for citizens and businesses 

5.2.2.1. 
5.2.2.2. 
5.2.2.3. 

Translation Costs 
Costs of method of service 
Time for serving a document across borders 

5.3. 

Relevance 

5.4. 

Coherence 

5.4.1. 
5.4.2. 

Internal coherence 
External coherence 
5.4.2.1.  General Treaty objectives 
5.4.2.2. 
5.4.2.3.  National law 
5.4.2.4. 

Relevant EU instruments in the field of judicial cooperation 

The Hague Convention and other bilateral or multilateral agreements 

5.5. 

EU added value 

6.  CONCLUSIONS 

6.1. 

Effectiveness 

6.2. 

Efficiency 

6.3. 

Relevance 

6.4. 

Coherence 

6.5. 

EU added value 

3 

 
1. 

INTRODUCTION 

The objective of this evaluation is to carry out an ex-post evaluation of 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)136 and its practical application.  

Regulation (EC) No 1393/2007 aims to provide for expeditious channels and clear rules for 
transmitting  documents  from  one  Member  State  to  another,  thereby  establishing  a 
fundamental  component  of  judicial  cooperation.  The  Regulation  includes  certain  minimum 
standards with regard to the protection of the rights of defence (e.g. Articles 8 and 19), and 
sets  uniform  legal  conditions  for  serving  a  document  by  post  directly  across  borders. 
Although  the  Regulation  appears  to  address  technical  procedural  matters,  its  impact  on  the 
everyday  lives  of  EU  citizens  is  substantial.  In  cases  in  which  at  least  one  party  resides  in 
another  Member  State  than  the  one  where  the  proceedings  takes  place,  courts  apply  the 
Regulation, in most cases even several times in course of the proceedings (since often further 
documents  have  to  be  served  formally,  in  addition  to  the  document  instituting  the 
proceedings, such as the decisions closing the proceedings). However, the application of the 
Regulation is not restricted to proceedings before the civil tribunals, because its scope covers 
also  "extra-judicial"  documents,  the  service  of  which  may  arise  in  various  out-of-court 
proceedings (e.g. in succession cases before a notary public, or in family law cases before a 
public authority), or even in the absence of any underlying judicial proceedings137. The proper 
functioning of the Regulation in these concrete cases is indispensable for ensuring access to 
justice and a fair trial for the parties to the proceedings as evidenced by the fact that the lack 
of proper service of the document initiating proceedings is by far the most often used ground 
for refusing the recognition and enforcement of judgments138.  

The Commission assessed the practical operation of the Regulation on service of documents 
in  2013139.  It  concluded  that  the  Regulation  has  been  applied  satisfactorily  by  the  Member 
States’  authorities  in  general  but  that  the  increasing  judicial  integration  of  Member  States, 
where  the  abolition  of  exequatur  (intermediate  procedure)  has  become  a  general  rule,  has 
brought  to  light  the  limits  of  its  current  rules.  The  report  has  encouraged  a  broad  public 
debate on the role of the Regulation in the Union's civil justice area and how in particular the 
service  of  documents  may  be  further  improved.  The  legislation  on  judicial  cooperation  has 
undergone detailed assessments over the past few years on its implementation in studies, in 
reports  by  the  Commission  and  discussions  in  the  European  Judicial  Network  (see  detailed 
list  under  chapter  4  on  the  methodology).  To  be  able  to  provide  relevant  and  up-to  date 

136 OJ L 324, 10.12.2007, p. 79–120  
137 CJEU Plumex reference  
138 An evaluation study of national procedural laws and practices in terms of their impact on the free circulation 
of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU 
consumer  law  (carried  out  by  a  consortium  led  by  MPI  Luxembourg),  final  report,  June  2017,  available  at 
https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-
01aa75ed71a1/language-en, pp.60-61. Hereinafter referred to as the "2017 MPI Study". 

139  

Commission Report COM(2013) 858 final of 4.12.2013. 

4 

 
                                                            
conclusions  on  all  key  evaluation  criteria,  in  2017  the  Commission  contracted  a  Study  to 
support the preparation of the evaluation and impact assessment for the modernization of the 
judicial cooperation in civil and commercial matters.140 

In  line  with  the  Better  Regulation  guidelines,  the  evaluation  will  examine  the  5  key 
mandatory  evaluation  criteria  of  effectiveness,  efficiency,  relevance,  coherence  and  EU 
added value, in order to examine issues which have already been identified in the Inception 
Impact  Assessment141.  The  evaluation's  findings  will  feed  into  an  impact  assessment  of  the 
policy  options  which  could  address  the  problems  identified.  Regarding  the  temporal  scope, 
the evaluation covers the entire period of application of Regulation (EC) 1393/2007, which 
goes back to 13 November 2008, which is the date on which the new Regulation on service of 
documents replaced the old one (Regulation (EC) 1348/2000). As concerns the geographical 
scope, all EU Member States are covered.   

2.  BACKGROUND TO THE INTERVENTION 

2.1.  Objectives and Intervention Logic of the Regulation 

Parties involved in legal proceedings will have to send and receive various documents to and 
from the other party. The correct and reliable service of documents from one Member State 
to  another  is  essential  in  judicial  cross-border  proceedings.  An  unsuccessfully  executed 
service  of  documents  can  prevent  cross-border  judicial  proceedings  from  being  lawfully 
processed and resolved and can later on hinder the recognition of judgments.  

Therefore, the core objective of the Regulation is to improve and expedite the transmission of 
judicial and extrajudicial documents between the Member States of the EU. 

The Regulation applies in all civil and commercial matters where a judicial or extrajudicial 
document  has  to  be  transmitted  for  service  between  Member  States.  The  Regulation  is 
directly applicable in all Member States, including Denmark142. 

In  order  to  create  a  clear  point  of  reference  for  the  evaluation  and  impact  assessment,  it  is 
necessary to carry out an analysis of the policy objectives and to establish the baseline against 
which  the  achievement  of  these  objectives  can  be  evaluated.143  Below  we  present  the 
Intervention  Logic  for  the  Regulation,  which  includes  information  on  the  needs,  objectives 
(including  general  and  specific  objectives),  inputs/activities  implemented  to  achieve  the 
objectives, expected results of the current rules and expected impacts relating to the current 
rules.  

140  JUST/2017/JCOO/FW/CIVI/0087 (2017/07) by Deloitte – hereinafter referred to as the "economic study". 
141  2017/JUST/013  
142  Denmark  does  not  take  part  in  the  adoption  and  application  of  EU  actions  taken  under  Article  81  of  the 
TFEU. Irrespective of this, the Regulation on service of documents is applicable in the territory of Denmark, 
based  on  a parallel agreement  concluded with  the  European  Community in  2005 (see 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, 17.11.2005, p. 55). 

143 Cf. pp. 57-58 of the Better Regulation Guidelines. 

5 

 
                                                            
Figure 1: Regulation –Intervention Logic 

Source: Deloitte 

6 

 
 
2.2.  Functioning of the Regulation 

This  section  provides  an  overview  of  the  main  provisions  of  the  Regulation  and  how  it  is 
meant to function in practice. Based on the basic steps involved in the service of documents 
under the Regulation, the figure below sets out the workflow. 

7 

 
 
Figure 4: Workflow of the Regulation 

Source: Deloitte elaboration 

8 

 
 
2.2.1.  Designation of specific bodies 

The  Regulation  requires  the  Member  States  to  designate  agencies  competent  for  the  (a) 
transmission and (b) receipt of documents. As a general rule, and in line with the objective of 
the  Regulation  to  speed  up  cross-border  service  of  documents,  Member  States  allocate  the 
tasks of the "transmitting" or "receiving" agencies in a decentralized manner to local officers, 
authorities or other competent persons. Nevertheless, as an exception, the Regulation allows 
that a Member State only designates one transmitting and one receiving agency; in this case, 
the designation needs to be renewed every five years.144  

Furthermore, the Member States have to designate a central body, which supplies information 
to the transmitting agencies and seeks solution in disputes connected with the transmission of 
documents (Art. 3). 

2.2.2.  Transmission:  means,  acceptance,  receipt  and  refusal  of  requests  and 

documents 

The main channel of transmission of the documents to another Member State for purposes of 
service is the traditional way of judicial assistance. In this case, the document will be sent by 
the  transmitting  agency  (located  in  the  original  Member  State)  to  the  receiving  agency 
(located  in  the  Member  State  where  the  document  is  to  be  served).  To  ensure  a  rapid 
transmission of documents, Art. 4 stipulates that all appropriate means are permitted as long 
as  certain  requirements  for  legibility  and  reliability  are  met,  but  finally  it  depends  on  the 
communication of the Member States, which are the means of communication through which 
they are ready to accept the documents (Art. 2(4)(c)). The document must be accompanied by 
a standard form contained in the Annex of the Regulation, filled out in one of the languages 
the  receiving  country  has  decided  upon  in  advance.  Possible  costs  for  translation  are  to  be 
covered by the applicant (Art. 5).  

To ensure speedy handling, the receiving agency is obliged to send an acknowledgement of 
receipt to the transmitting agency within seven days, again using a standard form (Art. 6). It 
must further seek contact with the transmitting agency as soon as possible if the documents 
received are incomplete or important information is missing. In an event of improper service, 
the  documents  must  be  returned  immediately  upon  receipt.  This  includes  cases  that  are  not 
covered by the Regulation or if the formalities are not complied with. 

It  is  up  to  the  receiving  agency  to  serve  the  document  itself  or  have  it  served.  Art.  7 
establishes that the document in question must be served according to the law of the receiving 
Member State or in the specific method requested by the transmitting agency, unless such a 
method is not compatible with the law of that Member State. If the receiving agency has not 

144 Art. 2(3). 

9 

 
 
                                                            
been able to effect the service within one month, it must inform the transmitting agency via a 
standard form145.  

According to Art. 8, the recipient may refuse to accept the document if it is not written in or 
translated  into  either  a  language  he/she  understands  or  the  official  language  of  the  Member 
State where it is served. The addressee must be informed of these rights when the document is 
served,  based  on  Annex  II  of  the  Regulation.146  The  refusal  must  be  communicated 
immediately  when  the  document  is  served  or  by  returning  the  document  to  the  competent 
authority within a week. 

After (the attempt of) serving the document on the addressee, the receiving agency returns to 
the  transmitting  agency  a  certificate  of  service  or  non-service  of  the  document147  indicating 
the steps undertaken and the result of the delivery (Art.10). 

In  addition  to  the  procedure  described  above,  the  Regulation  provides  rules  on  alternative 
procedures for the serving of documents.  

Member  States  may  transmit  documents  using  consular  or  diplomatic  channels  or  agents 
(Arts.  12  and  13).  In  addition,  they  may  serve  documents  using    registered  post  with 
acknowledgement of receipt  or  equivalent  (Art. 14)  or  by direct means of service (Art. 15). 
Direct service means that a plaintiff, or the plaintiff's lawyer, can send the documents directly 
to a judicial officer in another Member State without having to contact a transmitting agency. 
However,  this  is  only  possible  if  the  law  of  the  Member  States  in  question  permits  this 
approach. 

2.2.3.  Costs of transmission 

According  to  Art.  11,  the  costs  linked  to  service  of  documents  may  not  be  charged  or 
reimbursed  between  the  Member  States  concerned.  Exempted  from  this  rule  are  cases  in 
which the service was carried out by a judicial officer or by another competent person who is 
responsible for the service under the law of the receiving country. If the service is carried out 
by such a person, a fee may be charged for the intervention, in the form of a single fixed fee 
communicated to the Commission in advance by the Member State addressed. This lump sum 
must be proportionate and non-discriminatory.  

2.2.4.  Protection of the defendant 

Article 8 of the Regulation aims to guarantee the procedural rights of the addressee, who is 
allowed to refuse to accept 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.  The  provision 

145 This standard form can be found in Annex I of the Regulation. 
146 A refusal is illegitimate if only the document’s annex is not translated in the appropriate language and if these 

annexes are not relevant for the understanding of the subject’s matter. 

147 For the certificate of completion, the prescribed form in Annex I is to be used. 

10 

 
 
                                                            
determines  certain  elements  of  how  the  defendant  should  be  informed  about  this  right  and 
addresses some procedural aspects of how this right should be exercised.  

Article  19  of  the  Regulation  contains  provisions  on  the  consequences  of  a  defendant  not 
entering  an  appearance.  The  provision  limits  the  possibility  for  the  court  to  give  judgment 
against  a  defendant  who  has  not  appeared  and  who  was  to  be  served  abroad.  Paragraph  4 
enables the judge to free the defendant from the effects of the expiry of the time for appeal 
against  a  default  judgment.  This  provision  thus  provides  a  safeguard  to  make  sure  that  the 
defendant’s  procedural  rights  have  been  taken  into  account.  It  is  complemented  by  the 
possibility  to  refuse  recognition  of  a  judgment  on  the  ground  that  the  defendant  was  not 
served  with  the  document  which  instituted  the  proceedings  or  an  equivalent  document 
correctly, as stipulated in the Brussels Ia Regulation (Art. 45(1)(b)).  

2.3.  Baseline and points of comparison  

Before the Regulation and its predecessor (Regulation (EC) 1348/2000) entered into force, the 
cross-border service of judicial and extrajudicial documents in civil and commercial matters 
was  regulated  by  a  various  set  of  international  conventions  or  bilateral  mutual  agreements 
between  the  Member  States.  There  were  two  major  global  conventions  elaborated  in  the 
Hague Conference on Private International Law, at least one of which each Member State was 
a  party  to,  but  these  global  conventions  allowed  for  the  use  of  bilateral  agreements  or 
arrangements if these further facilitated the cross-border service of documents. Consequently, 
there was a hugely fragmented legal landscape as to the applicable legal basis. 

The legal sources in place before the Regulation (EC) 1348/2000 provided for a cumbersome 
and  slow  transmission  and  service  of  the  documents.  Mainly  based  on  the  traditional 
diplomatic  or  consular  channels,  or  as  the  1965  Hague  Convention  on  the  intervention  of 
Central Authorities, they included several intermediary steps until the document reached the 
local authority (court or judicial officer) in the State addressed, who was responsible for the 
actual  service  of  the  document  to  the  addressee.  The  average  timeline  for  serving  a  single 
document was between 6 and 9 months, which was visibly reduced with the introduction of 
the EU Regulation (2 months on average).  

Another feature of the baseline scenario was the high costs of the cross-border service, since 
the  previous  legal  sources  of  the  international  law  always  required  the  translation  of  the 
documents to be served in the official language of the Member State addressed for a formal 
delivery of the document. The EU Regulation constituted a paradigm shift in this regard, since 
here  the  translation  of  the  document  is  not  an  inevitable  precondition  of  the  service  of  the 
document, but an element for the protection of the rights of the defence, which becomes only 
necessary, if the original language of the documents is not understandable to the addressee.  

11 

 
 
 
3. 

IMPLEMENTATION / STATE OF PLAY 

3.1.  Description of the current situation  

The main findings of the quantification exercise carried out by the economic contractor are as 
follows: 

  Basic assumption concerning the application of the Regulation: 

o  Based on the feedback received during the interviews carried out as part of this 
study,  it  is  expected  that  the  Regulation  was  applied  in  95%  to  100%  of  all 
cross-border legal proceedings in civil and commercial matters between 2000 
and  2017.  It  is  thus  used  across  the  board  save  in  a  marginal  number  of 
exceptional cases. 

  Number of legal proceedings in which the Regulation was  applied: 

o  In  year  2000,  it  can  be  estimated  that  there  were  up  to  2.8  million  legal 
proceedings across all EU Member States in which the Regulation was applied; 
o  Until 2017, this number is estimated to have increased to up to 3.2 million per 

annum (i.e. +16%)148; 

  As concerns the type of cases in which the Regulation was applied, in the timeframe 

2000-2017: 

o  Approx. half of the cases in which the Regulation was applied related to legal 
proceedings concerning contractual obligations in the B2B / B2C context (e.g. 
payments  and  claims,  product  liability,  conformity  with  contract,  contract 
terms); 

o  Cross-border  compensation  for  damages  relate  to  about  16%  of  the  legal 
proceedings,  successions  and  wills  (13%)  and  property  transactions  (11%) 
come after; 

o  Legal  proceedings  concerning  divorces, 

legal  separations  as  well  as  

administrative cases account for approx. 4% of the overall case load 

o  About  2%  of  all  legal  proceedings  in  which  the  Regulation  was  applied 
concerned insolvencies of businesses or were cases of parental responsibility. 

The  estimates  above  show  that,  overall,  the  number  of  legal  proceedings  in  which  the 
Regulation  was  applied  increased  from  2.8  million  in  2000  to  around  3.2  million  in  2017 
(+16%).  

148 These figures are based on the data delivers by Deloitte in the economic study, decreased with the amount of 

administrative cases, to which the Regulation does not apply.  

12 

 
 
 
 
                                                            
4.  METHOD 

4.1. 

Short description of methodology 

4.1.1.  The economic study 

This  evaluation  is  based  on  a  study  to  support  the  preparation  of  an  evaluation  and  impact 
assessment for the modernisation of the judicial cooperation in civil and commercial matters 
prepared  by  Deloitte.149  This  study  in  particular  takes  into  account  the  answers  to  a  broad 
scale on-line public consultation conducted by the Commission which received 131 replies.150   

For this economic study, the following other data collection tools were used: 

  Desk research 
  Strategic interviews  
  Online surveys 
  Fieldwork in 10 Member States 

  Telephone interviews in 5 Member States 
  Face-to-face interviews in 5 Member States. 

Strategic  interviews  were  conducted  with  staff  at  several  European  Commission’s  DGs,  as 
well as EU-level organisations and fora representing judicial professionals.  

The  online  surveys  carried  out  by  the  contractor  were  distributed  among  the  following 
stakeholder groups: 

  Central bodies: E.g. ministries at the federal (where relevant) and state levels;  
  Requested courts and other public bodies under the Regulation; 
  Personnel  directly  involved  in  the  cases:  Judges,  prosecutors,  clerks,  diplomatic  or 
their  professional 

legal  counsels/aids,  bailiffs  (and 

lawyers, 

consular  agents, 
organisations). 

In total, 33 answers were received to the surveys, spread over these stakeholder groups and 13 
Member States. More than one third of the responses, however, came from Germany whereas 
no other Member State exceeded three individual responses (apart from Portugal with five). 
Responses were received from stakeholders in the following Member States: Cyprus, Estonia, 
Finland,  France,  Germany,  Greece,  Hungary,  Ireland,  Italy,  the  Netherlands,  Portugal, 
Romania,  and  Sweden.  Feedback  was  obtained  from  Central  Bodies,  competent  courts,  and 
legal professionals in rather equal proportions. 

149 JUST/2017/JCOO/FW/CIVI/0087 (2017/07). 
150 

https://ec.europa.eu/info/consultations/public-consultation-modernisation-judicial-cooperation-civil-and-

commercial-matters-eu_en  

13 

 
 
                                                            
Fieldwork  was  carried  out  in  the  following  ten  Member  States:  Belgium,  Estonia,  France, 
Germany,  Greece,  Hungary,  Ireland,  Italy,  Romania  and  Sweden.151  In  these  countries, 
interviews  with  central  bodies,  judicial  staff  (including  bailiffs),  lawyers  and  ICT  entities 
were conducted. In total, 65 interviews were carried out. 

Stakeholder consultations focused on the collection of new data. Data collected in course of 
preceding activities on the assessment of the practical application of the Regulation were also 
used.  Based  on  the  limited  timeframe  and  in  order  not  to  overburden  the  stakeholders 
involved, individual stakeholders were only interviewed once: i.e. they were asked to provide 
information  relating  to  both  the  evaluation  and  the  impact  assessment  at  the  same  time.  An 
ongoing  gap  analysis  was  carried  out  towards  our  Analytical  Framework  and  impact 
assessment  methodology,  so  as  to  ensure  that  mitigation  action  could  be  taken  in  time  and 
where needed. 

The preparation of the evaluation involved:  

  Gathering evidence on the implementation of the Regulation;  
  Assessing the performance of the entire Regulation.  

As concerns the first point, in line with the Better Regulation Guidelines152, the starting point 
was to examine the status quo, including how the intervention has been implemented, which 
serves as a background to the evaluation. In this context, implementing legislation adopted by 
the Member States, Member States’ notifications on how the Regulation is applied (including 
e.g. the designation of relevant bodies) as well as which technological tools are permitted and 
used by the Member States in relation to the Regulation were considered.  

For  the  purpose  of  the  assessment  of  the  performance  of  the  Regulation  and  in  order  to 
provide  a  comprehensive  picture  of  the  situation,  the  evaluation  took  a  broad  view.  This 
included  among  others  looking  at  the  changes  the  Regulation  has  brought  about,  whether 
these  changes  were  those  intended,  and  whether  in  relation  to  related  initiatives,  the 
Regulation met its objectives and if these are still relevant.  

4.1.2.  The On-line Public Consultation 

This  Evaluation report also  includes the findings of a broad open public consultation which 
was  carried  out  between  8  December  2017  and  6  March  2018.  There  were  131  replies 
altogether,  answers  were  received  from  all  EU  Member  States,  but  also  from  Switzerland, 

151 The Member States were selected based on the following criteria: Legal traditions in the Member States; no. 
of estimated incoming civil and commercial cases; no of judgements concerning the Regulation in the Unalex 
database; differences in relation to the national organisational and procedural set-ups, e.g. in relation to which 
types  of  stakeholders  are  able  to  serve  documents  under  national  law;  Take-up  of  ICT  /  availability  of 
electronic  means  in  courts  according  to  the  2017  EU  Justice  Scoreboard;  Geographical  balance;  and 
Economic representativeness in terms of the EU’s overall GDP, number of businesses (especially SMEs), and 
population. 
152 See p. 59.  

14 

 
 
                                                            
Norway and Iceland. The results show that almost three quarters of all respondents have been 
involved  in  cross-border  judicial  proceedings  on  a  professional  level.  This  illustrates  the 
importance of judicial cooperation in civil and commercial matters and the need for efficient 
tools such as the Regulations on the Service of Documents and the Taking of Evidence. It is 
to be noted, that 51 of the 131 replies came from various Polish courts. 

4.1.3.  Preceding evaluative exercises 

The Regulation has undergone the following assessments over the past few years in studies, in 
reports  by  the  Commission  and  discussions  in  the  European  Judicial  Network  in  civil  and 
commercial matters (EJN): 

2012: 

  Study on the application of Council Regulation (EC) No 1393/2007 on the service of 
judicial and extrajudicial documents in civil and commercial matters (launched by the 
Commission,  carried  out  by  Mainstrat  and  the  University  of  the  Basque  Country)  – 
final report adopted in June 2012; 

2013:  

  Report of the Commission 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) 858 final; 

  20 November 2013: meeting of the EJN dedicated to the evaluation of the application 

of the Regulation on taking of evidence;  

2014: 

  15-16 May 2014: meeting of the EJN dedicated to the evaluation of the application of 

the Regulation on service of documents;  

  2 October 2014: continuation of the discussion on the application of the Regulation on 

service of document in the EJN; 

2016:  

  Study  containing  a  comparative  legal  analysis  of  laws  and  practices  of  the  Member 
States  on  service  of  document  (launched  by  the  Commission,  carried  out  by  a 
consortium  composed  of  University  Firenze,  University  Uppsala  and  DMI)  – 
published in November 2016153; 

  14-15  November  2016:  dedicated  meeting  of  the  EJN  addressing  practical  problems 

and possible improvements of the two EU Regulations; 

2017: 

  An evaluation study of national procedural laws and practices in terms of their impact 
on  the  free circulation of  judgments  and  on  the  equivalence  and  effectiveness  of  the 
procedural  protection  of  consumers  under  EU  consumer  law  (launched  by  the 

153 Available at http://ec.europa.eu/justice/civil/files/studies/service_docs_en.pdf. 

15 

 
 
                                                            
Commission,  carried  out  by  a  consortium  led  by  MPI  Luxembourg)  –  final  report 
delivered in June 2017154. 

  30 November – 1 December 2017: dedicated meeting of the EJN addressing practical 

problems and possible improvements of the two EU Regulations. 

This list of evaluative activities can be complemented by the research and work carried out by 
the  other  institutions  of  the  EU,  as  well  as  by  external  actors.  An  own-initiative  report  was 
adopted by the European Parliament on 4 July 2017 on common minimum standards of civil 
procedure  in  the  EU  which  contains  provisions  related  to  the  acceptance  of  modern 
communication technology both for service of documents and for taking of evidence. On the 
other hand, the Council Working Party on E-Law set up an expert group assessing issues of 
electronic service under the existing legal framework. It is also worth mentioning the ongoing 
ELI  (European  Law  Institute)  and  Unidroit  (International  Institute  for  the  Unification  of 
Private Law)  project  "From Transnational  Principles to  European  Rules of Civil Procedure" 
which involves specific work on service of documents and taking of evidence. 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

This section presents the answers to the evaluation questions, i.e. effectiveness, efficiency, relevance, 
coherence and EU added value of the Regulation 

5.1.  Effectiveness 

implementation  of  the  Regulation  has  resulted 

Overall,  the 
in  some  clear 
improvements concerning the efficacy of cross-border service of documents. This said, 
according  to  the  evidence  gathered,  the  practical  application  of  the  Regulation  still 
results  in  some  delays  and  confusion  for  the  parties  involved  and  it  has  not  fully 
achieved its general, specific and operational objectives. 

The assessment of effectiveness looks at the extent to which the Regulation has succeeded in 
meeting its objectives. It is important to first understand the hierarchy of objectives set out in 
the  Regulation  (as  outlined  in  the  Intervention  Logic  in  Section  Error!  Reference  source  not 
found.) and the ways in which these are measured in the ensuing analysis: 

  Operational  objectives  are  defined  in  terms  of  the  actions  of  an  intervention  and  are 
measured through the output of the Regulation. In this regard, indicators measuring the 
quantity/quality  of  what  has  been  produced  by  the  Regulation  are  assessed  (e.g.  the 
efficiency of service across borders, use of rapid means for service and security levels 
of service methods). 

154  Available  at  https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-

01aa75ed71a1/language-en .  

16 

 
 
 
 
                                                            
  Specific  objectives  are  defined  in  terms  of  the  concrete  achievements  of  the 
intervention  within  the  specific  policy  domain  and  are  measured  in  terms  of  outcome 
indicators. In this regard, indicators measuring the outcome of the Regulation in terms 
of the impact on cross-border civil and commercial proceedings are assessed. 

  General objectives are Treaty-based goals which the policy aims to contribute to and 
looks at “the bigger picture”. To assess the achievement of these goals impact indicators 
are  used  (e.g.  extent  to  which  the  Regulation  contributes  to  the  Internal  Market 
objectives, trust across EU in judicial systems and fundamental rights in the EU). 

The table below summarises the main findings concerning the effectiveness of the Regulation 
in  achieving  each  of  the  three  types  of  objectives.  An  explanation  of  the  main  reasons  why 
they  have  been  achieved  or  not  (including  unexpected  or  unintended  effects)  is  also 
provided.155  The  detailed  findings  from  the  data  collection  activities  are  presented  in  the 
ensuing sections. 

Table 17: Summary of the assessment of effectiveness by objective 

Level 

Objective 

Overall Assessment 

To  ensure  trust  in  the 
judicial  systems  of  the 
Member  States  and  the 
EU  

The  Regulation  has  had  a  notably  positive 
impact on ensuring the smooth functioning of the 
area of freedom, security and justice.  

General 

Specific 

To  ensure 
functioning 
Internal Market 

the  smooth 
the 

of 

To  further  improve  the 
efficiency  and  speed  of 
judicial procedures 

To 
to 
improve  access 
justice  and  protection  of 
the  procedural  rights  of 
parties 
to  cross-border 
proceedings 

in 

the  Regulation  has  contributed 

Regarding  ensuring  the  smooth  functioning  of 
the  Internal  Market,  the  restriction  of  access  to 
direct  service  (Article  15  of  the  Regulation)  in 
some  of  the  Member  States  was  found  to  be 
contrary to internal market principles. 
to 
Overall, 
improving  the  efficiency  and  speed  of  cross-
border  proceedings.  Despite  delays 
the 
process  of  serving  documents,  stakeholders 
generally  agree  that  the  situation  has  improved 
with the use of the Regulation. Nevertheless, the 
Regulation did not exploit the potential provided 
and 
the 
by 
digitalization.  
The  Regulation  has  contributed  to  improving 
access  to  justice  and  protection  of  procedural 
rights  of  the  parties  involved  in  cross-border 
proceedings,  but  not  yet  to  the  full  extent. 
Although  the  provisions  on  the  right  to  refusal 
the 
and  default 
Regulation are welcomed by stakeholders, issues 

judgments  contained 

technological 

development 

in 

155 BRG – 2015 – 57  

17 

 
 
                                                            
Level 

Objective 

Overall Assessment 

To  reduce  the  burden  for 
citizens  and  businesses 
involved  in  cross-border 
proceedings 

Ensuring  efficient  and 
speedy 
transmission  of 
judicial and extra-judicial 
documents across borders 

that 

Ensuring 
all 
appropriate  means  are 
used  to  warrant  a  direct 
and rapid  transmission  of 
documents 

Operatio-
nal 

Safeguarding  the  security 
of transmitted documents 

Ensuring  that  documents 
are 
an 
served 
appropriate language 

in 

possible, 

particular 

in  cross-border  proceedings, 

still  exist  with  regard  to  their  interpretation  and 
application  in  the  Member  States.  In  addition, 
the  Regulation  does  not  address  its  relationship 
to the use of fictitious or alternative methods of 
service of documents, provided by national laws, 
if the addressee has a residence or seat in another 
Member State. This shortcoming can also impact 
of  the  rights  of  parties  involved  in  cross-border 
proceedings. 
Although  the  Regulation  has  contributed  to 
reducing  the  costs  for  citizens  and  businesses 
involved 
their 
burdens  have  not  been  minimised  as  much  as 
through 
in 
appears 
technological innovations. 
The  Regulation  has  in  general  improved  the 
efficiency  of  transmission  of  judicial  and  extra 
judicial  documents  across  borders  but  there  is 
still  room  for  improvement.  In  particular  the 
potential  in  the  use  of  electronic  means  of 
communication remains unexploited.   
The  Regulation  has  not  adequately  ensured  that 
all appropriate means are used to warrant a direct 
and 
In 
particular  the  restricted  application  of  direct 
service  (Article  15)  among  the  Member  States 
and  the  varying  costs  associated  with  the  same 
service  acts  as  a  barrier  to  achievement  of  this 
objective. 
Consulted stakeholders did not express concerns 
over  the  security  of  transmitted  documents  nor 
did  they  provide  examples  of  cases  where  the 
security of documents was put at risk. 
To  a  large  extent,  the  Regulation  has  met  this 
objective. Most courts consulted in the fieldwork 
interviews  by  the  economic  contractor  agreed 
that  refusals  on  the  basis  of  the  inappropriate 
language of the document to be served (Article 8 
of  the  Regulation)  do  not  arise  very  frequently, 
this  only  occurs  approximately  in  10%  of  the 
cases.  Nevertheless,  in  those  cases,  where  the 
addressee  has  to  rely  on  this  right  and  invokes 
the refusal of acceptance, various problems arise 
the 
due 
interpretation  and 
this 
provision.. 

to 
implementation  of 

transmission  of  documents. 

the  ambiguities 

in  relation 

rapid 

to 

18 

 
 
 
Level 

Objective 

Overall Assessment 

Promoting 
the  use  of 
direct  methods  of  service 
of  documents  (Art.  14 
and 15 of the Regulation)  

Direct  service  (Article  15)  is  regarded  as  an 
efficient method of service under the Regulation 
but  its  enhanced  use  is  being  hindered  by  its 
restricted  application  since  less  than  half  the 
Member  States  are  applying  this  provision  and 
some apply it in a restrictive manner. Secondly, 
the  disparity  in  fees  charged  for  this  type  of 
service across the Member States implies that the 
method is not equally accessible to the applicants 
States.  
from 
As  to  the  method  of  service  by  post  (Art.  14), 
this seems to be one of the most preferred means 
of  service  of  documents  under  the  Regulation, 
mainly  due  to  its  low  cost  and  speediness. 
Irrespective  of  this,  problems  of  quality  in  the 
delivery  of  the  documents,  especially  regarding 
the  use  of  the  postal  return  slips,  affect  the 
efficiency of this method in a negative sense..  

Member 

all 

Source: Deloitte 

The  remainder  of  this  chapter  presents  the  detailed  findings  of  the  evaluation  of  the 
effectiveness  of  the  Regulation  in  several  steps.  First,  the  achievement  of  the  operational 
objectives is assessed through the functioning of the workflow of the Regulation (i.e. through 
the practical steps involved in the service of documents across borders). The assessment of the 
achievement of the specific objectives and general objectives follows. 

5.1.1.  Achievement of the operational objectives 

The operational objectives set out in the Intervention Logic are: 

  Ensuring  efficient  and  speedy  transmission  of  judicial  and  extra-judicial  documents 

across borders; 

  Ensuring  that  all  appropriate  means  are  used  to  warrant  a  direct  and  rapid 

transmission of documents; 

  Safeguarding the security of transmitted documents; 
  Ensuring that documents are served in an appropriate language; 
  Promoting the use of direct methods of service of documents (Art. 14 and 15 of the 

Regulation). 

The operational objectives of the Regulation have been achieved to a large extent but 
some improvements would still need to be made in order to fully meet the objectives. 
In  particular,  the  objectives  of  "ensuring  that  all  appropriate  means  are  used  to 
warrant  a  direct  and  rapid  transmission  of  documents"  and  "promoting  the  use  of 
direct methods of service of documents" have not yet been achieved to the full extent.  

19 

 
 
To demonstrate the extent to which the objectives have been met an overview of the overall 
efficiency of serving documents under the Regulation is first provided. This is followed by an 
analysis  of  the  functioning  of  the  Regulation  in  terms  of  the  basic  steps  involved  in  the 
Regulation workflow156. 

5.1.1.1.Overall efficiency of service of documents under the Regulation 

There  is  much  evidence  that  the  Regulation  has  allowed  for  an  efficient  transmission  of 
judicial and extra judicial documents across borders. This is mainly due to the new structure 
of the transmission channels, such as the direct communication between the transmitting and 
receiving  agencies,  and  the  enhanced  availability  of  the  direct  methods  of  service  of 
documents. Many stakeholders noted that transmission has improved with the introduction of 
the Regulation and continues to  increase in  efficiency every year. As noted by a number of 
interviewees,  awareness  of  the  Regulation  and  knowledge  of  how  it  works  is  increasing 
within the legal  community.  The  figure  below shows  that 70%  of  respondents to  the  online 
public consultation (either “strongly” or “tend to”) agreed that the service of documents under 
the Regulation has been carried out efficiently.  

Figure  2:  Efficiency  of  serving  documents  across  borders  (public  consultation  results,  80 
respondents)157 

Source: European Commission’s Open Public Consultation  

However,  this  positive  result  of  the  public  consultation  should  be  viewed  somewhat  more 
critically  in  light  of  the  in-depth  interviews  with  stakeholders  carried  out  by  the  economic 
contractor in the fieldwork Member States. These indicate that although the procedures set out 
in  the  Regulation  are  appreciated  and  have  improved  transmission  of  documents,  the 
procedure is still taking a long time and delays can be encountered at any stage of the process. 
In fact, less than half of the respondents to the public consultation found that the time taken to 
serve a document was adequate (Figure 5).  

156 See section 2.2 
157 47 respondents to the public consultation did not answer this question. 

20 

 
 
 
 
                                                            
Figure 5: Time used for serving documents across borders (public consultation results, 115 
respondents)158 

Source: European Commission’s Open Public Consultation  

The  data  collected  in  the  Member  States  also  highlights  the  extent  of  delays  for  service  of 
documents  across  borders.  Based  on  input  from  national  interviewees,  the  economic 
contractor estimated that it takes on average about 3.3 months to serve a document in another 
Member  State  through  the  methods  under  the  Regulation.  This  estimate  is  well  above  the 
time-frame  of  one  month  set  out  in  the  Regulation  for  service  through  transmitting  and 
receiving agencies. The reasons for such delays are associated with the internal procedures of 
Member  States  which  can  be  quite  different,  leading  to  insufficient  communication  among 
agencies and non-compliance with the timeframe for serving documents set in the Regulation. 
In addition, interviewees in the Member States indicated that the application of the Regulation 
can  differ  significantly  depending  on  the  Member  State  involved.  Even  within  the  same 
Member  State,  differences  can  be  encountered  due  to  varying  levels  of  knowledge  and 
experience of the Regulation between regional authorities.   

The  different  methods  of  service  have  been  analysed  below  indicating  the  main  issues 
affecting the efficient and speedy transmission of documents between the Member States. 

5.1.1.2. Preparation of the request and choosing the method of service 

Before the service is carried out there are some initial steps that the applicant must conduct. 
Generally, there are four steps that are involved in the preparation of the request:  

1.  Identifying the types of documents to be served; 
2.  Identifying the address of the person to be served; 
3.  Assessing whether translation is necessary; and 
4.  Choosing the method of service. 

158 12 respondents to the public consultation did not answer this question. 

21 

 
 
 
                                                            
Identifying the types of documents to be served 
Article 1(1) stipulates that the Regulation applies to both judicial and extrajudicial documents. 
Whereas judicial documents are those having a close connection to court proceedings, there is 
some  uncertainty  as  to  what  constitutes  an  “extrajudicial”  document159  and  which 
extrajudicial documents fall within the scope of the Regulation.  

The CJEU tends to favour a broad understanding of extrajudicial documents. It has decided 
that  the  Regulation  extends  to  the  service  of  such  documents  even  where  there  is  no 
underlying  legal  proceedings  in  the  context  of  which  the  formal  service  of  the  document 
would  become  necessary.  In  addition,  the  Court  also  extended  the  scope  of  this  concept  to 
purely  private documents (i.e. document which do not  emanate from a public authorities)  if 
their service is needed for the assertion or safeguarding of rights.160  

The broad interpretation of the Court contributed to the ambiguity of this concept, since in a 
lot  of  the  legal  systems  there  is  a  clear  distinction  between  the  mail  delivery  for  private 
reasons and the legal concept of service of documents, whereby the latter is only conceivable 
in the context of legal proceedings. This ambiguity is certainly acknowledged by the national 
interviewees in the economic study, still it was not found as a problem which would directly 
affect  the  daily  application  of  the  Regulation  (receiving  agencies  informed  the  economic 
contractor that in most cases they just comply with the incoming requests for service without 
strictly  reviewing  the  nature  of  the  documents  to  be  served).  The  ambiguity  around  this 
concept  of  "extrajudicial  documents"  in  the  Regulation,  the  fragmented  interpretation  of  its 
content  relying  on  the  diverging  views  of  the  national  procedural  laws,  is  against  the  stated 
intention of the EU legislator to have this notion as an autonomous concept of EU law161.    

Identifying the address of the person to be served 
It is clearly stated in the Regulation that it does not apply where the address of the person to 
be served is not known (Art. 1 (2)). However, as also highlighted in the Commission’s 2016 
comparative legal analysis of the relevant laws and practices of the Member States regarding 
the  service  of  documents162,  in  practice  this  provision  causes  significant  problems  for 
transmitting and receiving agencies.  

Firstly, it is difficult to establish when an address is known or unknown. For example in some 
Member States it is sufficient to address a document to the last known address of the person to 
be served (e.g. in France). However in others, the sender may first have to verify the address 
before  transmitting  the  document.  In  some  cases,  documents  are  transmitted  to  national 

159 More than half of the respondents to the online survey of Deloitte indicated that the meaning of “extrajudicial 

documents” under the Regulation was not clear. 

160 CJEU 25.06.2009 - C-14/08 - Roda Golf & Beach Resort SL, unalex EU-179 
161 See CJEU judgment in Case C-14/08, Roda Golf & Beach Resort, paragraphs 49 and 50. Already anticipating 
this interpretation the EU legislator deleted from the current version of the Regulation (which was adopted in 
2007) the obligation to draw up a "glossary" with the list of documents which Member States considered as 
falling under the "scope" of the Regulation.   

162 http://ec.europa.eu/justice/civil/files/report_service_documents_en.pdf pg. 7. 

22 

 
 
                                                            
central bodies or receiving agencies with the expectation that they would assist in locating the 
addressee.  In  fact,  Member  States  have  different  understandings  on  who  is  responsible  for 
locating the addressee. In about half of the Member States, this responsibility lies exclusively 
with the party that wants a document to be served163, while in the others, although the party 
may still be required to specify an address for the addressee, the court seized, the court officer 
or  the  bailiff  have  a  duty  to  take  certain  measures  in  order  to  trace  the  whereabouts  of  the 
addressee164. Despite the Member States’ official positions on who is responsible for locating 
the  addressee,  the  contractor  was  informed  that  in  practice  some  Member  States  would 
willingly  take  some  action  to  assist  the  requesting  authority  on  clarifying  an  address. 
Conversely,  some  Member  States  are  very  strict  with  small  mistakes  in  addresses  and 
immediately  send  the  request  back  to  the  transmitting  agency.  Other  central  bodies  and 
agencies  in  the  Member  States  do  not  even  have  the  competence  nationally  to  investigate 
private  addresses.  Furthermore,  interviewees  note  the  lack  of  clear  information  on  the 
channels  (if  any)  that  are  available  within  each  Member  State  for  assistance  on  locating  an 
addressee. This diversity in approaches in the Member State stands in clear contrast with the 
demand of the stakeholders expressed in the online public consultation for a broader toolset 
provided for finding the whereabouts of addressees who are residing in the territory of other 
Member States165.  

Assessing whether translation is necessary 
According to Art. 8 (1) the document to be served should be written in, or accompanied by a 
translation into either of the following languages: 

  A language which the addressee understands; or 
  The official language of the Member State addressed or, if there are several official 
languages in that Member State, the official language or one of the official languages 
of the place where service is to be effected. 

At  this  stage  of  the  process,  i.e.  before  requesting  service  of  the  document,  the  lawyer  or 
authority  involved  has  to  establish  whether  translation  of  the  documents  is  necessary.  Most 
lawyers  and  transmitting  agencies  consulted  by  the  economic  contractor  in  the  fieldwork 
Member  States  stated  that  they  would  provide  a  translation  of  documents  to  avoid 
unnecessary  delays  caused  by  an  eventual  refusal  by  the  addressee  to  accept  the  document. 
This  preventive  action  is  sometimes  even  further  supported  by  first  asking,  whenever 
possible,  the  lawyer  of  the  addressee  which  language  their  client  understands.  This  finding 
corresponds  to  the  information  of  the  2017  MPI  Study,  according  to  which  transmitting 
agencies in some Member States require or encourage claimants to provide a “precautionary” 
translation  of  the  relevant  documents  before  accepting  them  to  be  sent  to  the  requested 

163 http://ec.europa.eu/justice/civil/files/studies/service_docs_en.pdf, pg. 122.  
164 Ibid. 
165  51  %  of  those  who  responded  strongly  agreed,  while  35  %  tended  to  agree,  with  the  proposal  that  the 
Regulation  should  ensure  greater  transparency  in  terms  of  finding  the  whereabouts  of  addressees  who  are 
residing in the territory of other Member States.   

23 

 
 
                                                            
Member State – e.g., Denmark, Germany, Romania or Spain166. Such practices are contrary to 
the  objective  of  the  Regulation  to  reduce  costs  and  time  of  cross-border  service  through 
minimizing the instances where translations are actually required.  

Key  issues  at  this  stage  of  the  process  are  deciding  to  which  extent  the  documents  are 
translated and the quality of such translation. As reported in 25 out of 114 cases analysed on 
the  Unalex  database,  the  main  obstacle  in  relation  to  Article  8  of  the  Regulation  is  the 
ambiguity of both the required (parts of) documents to be translated167 as well as the quality 
of  the  translation  to  be  provided168.  This  finding  is  supported  also  by  interviews  in  the 
Member  States.  However,  some  interviewed  lawyers  also  mentioned  that  the  quality  of 
translations  is  recognised  as  a  potential  problem  for  the  proceedings  and  thus  preventive 
action is taken by providing a sworn or certified translation to avoid issues with quality. 

Case law: Questions over the appropriate language 
There have been court cases concerning the lack of clarity with regard to the application of 
Article  8  of  the  Regulation,  for  example,  on  whether  in  the  case  of  service  on  a  legal 
person,  the  relevant  standard  of  language  skills  must  be  drawn  only  from  the  specific 
recipient’s linguistic knowledge or rather in accordance with the language competences in 
the  company169,  or  whether  an  agreement  on  the  use  of  a  certain  language  for 
correspondence  and  the  performance  of  contract  justifies  the  presumption  of  the 
addressee’s familiarity with the agreed language.170 
It  is,  in  the  end,  for  the  national  court  to  determine  with  regard  to  objective  criteria, 
whether the defendant commands sufficient language skills and whether the content of the 
document is sufficient to guarantee the defendant his rights or whether further translation 
of  (parts  of)  documents  is  required.171  Nevertheless,  the  criteria  for  determining  whether 
the language of the documents is appropriate is not clear in the Regulation.   

Overall, to a large extent the Regulation has succeeded in ensuring that documents are served 
in  a  language  that  is  either  understood  by  the  addressee  or  in  an  official  language  of  the 
Member  State  of  residence  of  the  addressee.  Most  courts  consulted  in  the  fieldwork 
interviews  by  the economic  contractor  agreed that  refusals  on  the  basis of  the  inappropriate 
language of the document to be served do not arise very frequently (Contractor estimated that 
it occurs in about 10% of cases)172.  

166 2017 MPI Study, p. 55. 
167 e.g. BGH (DE) 21.12.2006 - VII ZR 164/05, unalex DE-1787  
168 e.g. OLG Düsseldorf (DE) 15.07.2005 - II-3 UF 285/04, unalex DE-1736 
169 e.g. LG München I (DE) 30.11.2009 - 7 O 861/09, unalex DE-3198 ; LG Düsseldorf (DE) 10.03.2016 - 14c O 

58/15, unalex DE-3408. 

170 e.g. LG Bonn (DE) 30.11.2010 - 10 O 502/09, unalex DE-3197 ; BGH (DE) 21.12.2006 - VII ZR 164/05, 

unalex DE-1787. 

171  LG  Düsseldorf  (DE)  12.01.2010  -  4b  O  286/08,  unalex  DE-3199;  CJEU  08.05.2008  -  C-14/07  - 
Ingenieurbüro  Michael  Weiss  und  Partner  GbR  ./.  Industrie-  und  Handelskammer  Berlin,  unalex  EU-157; 
CJEU  08.05.2008  -  C-14/07  -  Ingenieurbüro  Michael  Weiss  und  Partner  GbR  ./.  Industrie-  und 
Handelskammer Berlin, unalex EU-157; similar conclusion by CJEU in the Order of the Court of 28 April 
2016 taken in Case C-384/14, Alta Realitat S.L., ECLI:EU:C:2016:316.  
172 See sections 3.3. and 4.2. of the 2018 Deloitte Study on service of documents.  

24 

 
 
                                                            
Choosing the method of service 
There are five ways in which documents can be served under the Regulation: 

  Through transmitting and receiving agencies (Art. 4); 
  By  post  through  registered  letter  with  acknowledgement  of  receipt  or  equivalent 

(Art. 14); 

  Through “Direct Service” i.e. by judicial officers, officials or other competent persons 

of the Member State addressed, where permitted  (Art. 15); 

  Through transmission by diplomatic or consular channels (Art. 12). 
  By diplomatic or consular agents (Art. 13) 

The Regulation allows for restrictions in application in two of these methods of service. The 
table below presents how these two methods are accepted in the Member States:  

Figure 6: Overview of methods of service in the Member States 

Member State 
permitting the 
method 

Service 
by 
consular  or 
diplomatic 
agents      
(Art 13) 
X 
Austria 
(x) 
Belgium 
(x) 
Bulgaria  
(x) 
Croatia  
Cyprus 
X 
Czech Republic  X 
X 
Denmark 
(x)* 
Estonia  
X 
Finland 
(x) 
France 
(x) 
Germany 
(x) 
Greece 
(x) 
Hungary 
X 
Ireland  
(x) 
Italy  
(x) 
Latvia  
(x) 
Lithuania  
(x) 
Luxembourg  
(x) 
Malta  
X 
Netherlands 

25 

Direct 
Service 
(Art 15) 

x 

x 

x 

x 
x 
(x)** 
x 
X 

X 

X 
X 
X 

 
 
 
 
 
 
 
 
 
 
 
Member State 
permitting the 
method 

by 
Service 
consular  or 
diplomatic 
agents      
(Art 13) 
(x) 
Poland  
(x) 
Portugal  
(x) 
Romania 
(x) 
Slovakia  
(x) 
Slovenia 
n/a 
Spain 
Sweden  
X 
United Kingdom  X 
Total 

27 / (18) 

Direct 
Service 
(Art 15) 

n/a 
(x) 
(x) 
14 / (3) 

Source: e-Justice portal,  

*The  parentheses  with  regard  to  the  service  by  diplomatic  officers  or  consular  agents 
indicates  the  restriction  of  the  Member  States  concerned  to  allowing  the  use  of  this  service 
method only on persons who are nationals of the sender State of the diplomatic officer.  

**  The  parentheses  with  regard  to  the  direct  service  mean  restrictions  by  the  law  of  the 
Member  States  concerned  in  relation  to  the  applicability  of  this  type  of  service  in  their 
territory.   

Although  no  major  issues  were  noted  with  regard  to  choosing  the  method  of  service  of  a 
document  under  the  Regulation,  a  number  of  factors  come  into  play  when  deciding  the 
method. The benefits and costs of each method are well  recognised by stakeholders and are 
often balanced with the relative facts or needs of the case at hand. For example stakeholders 
mentioned  that  direct  service  would  not  be  considered  by  some  transmitting  agencies  if  the 
proceedings  are  non-litigious.  Other  factors  include  the  urgency  of  the  case  and  the 
willingness of clients to bear costs of more expeditious methods. Stakeholders of two Member 
States also highlighted the common practice of using two methods of service in parallel (e.g. 
postal  and  direct  service)  to  ensure  the  effective  service  of  the  document.  It  is  also 
commonplace  that  service  through  registered  post  is  first  attempted  and,  if  unsuccessful, 
direct service is applied. 

The functioning of these different methods of service are assessed in the ensuing paragraphs. 
The  use  of  service  through  diplomatic  or  consular  channels  was  found  to  be  extremely  low 
and this it is not assessed in detail below.  

5.1.1.3.Service by transmitting and receiving agencies 

Service  of  documents by  transmitting  and  receiving  agencies  is  generally  considered 
sufficient  but  not  overly  efficient.  The  predominant  reliance  on  paper-based  and 

26 

 
 
 
 
 
 
 
formalised methods of communication between agencies can add additional delays to 
the  process  and  hinder  the  objective  of  providing  speedy  and  efficient  service  of 
documents. In addition, despite this method being the regulated in most detail within 
the  Regulation,  different  procedures  in  the  Member  States  affect  its  common 
application. 

Figure 7: Standard process of service through transmitting and receiving agencies 

Source: Deloitte elaboration based on the Regulation 

The  service  of  documents  through  transmitting  and  receiving  agencies  (Art.  4  to  11)  is  an 
important method in practice: the frequency of its use equals to that of the use of the direct 
methods  accepted  in  the  Regulation  (in  the  online  public  consultation  53  %  of  those  who 
expressed  an  opinion  preferred  serving  through  the  designated  agencies;  whereas  47% 
preferred the use of the direct methods). 

There are some issues that limit the potential of the Regulation to fully reach its objective of 
efficient transmission. The analysis carried out by the economic contractor shows that delays 
are a significant issue with regard to service of documents through transmitting and receiving 
agencies. Results from the interviews indicate that the documents are not served within one 
month of the request being received by the receiving agency and this is further supported with 
findings  from  the  online  survey.  The  main  issues  in  terms  of  the  main  steps  in  serving  a 
document through transmitting and receiving agencies are the following: 

Step 1: Locating the relevant agencies and sending the request 
Before actually setting in motion the process of serving documents through the transmitting 
and  receiving  agencies,  the  claimant  has  to  first  locate  the  relevant  authority  in  his/her 
Member  State  and,  similarly,  the transmitting  agency  has  to  locate  the relevant transmitting 
agent in the Member State addressed.  

Although the majority of respondents to the online public consultation (75%) agreed that it is 
easy  to  identify  the  agency  or  the  competent  authority  in  another  Member  State,  some 
difficulties were highlighted in the interviews. For example, the Central Body in one Member 
State pointed out that almost all incoming requests are directed to them despite the regional 

27 

 
 
 
courts  being  identified  on  the  e-Justice  portal  as  the  relevant  receiving  agencies.  Other 
receiving  agencies  mentioned  that  they  sometimes  receive  requests  that  are  outside  their 
jurisdiction. Thus, from the transmitting point of view, it may be easy to find an agency in the 
Member  State  to  receive  the  documents  but  this  may  not  necessarily  be  the  agency  with 
jurisdiction to handle the request. Interviewees noted that this is because information on the e-
Justice portal, although it is available for almost all Member States, is not always up to date. 
The transfer of the request and the documents from the wrong agency to the correct one can 
cause a delay of several days.  

Some lawyers and courts were also critical of the involvement of transmitting agencies in the 
Member State of origin, stating that it adds another unnecessary intermediary into the process, 
thus leading to additional delays. A number of lawyers in one Member State questioned the 
added value of involving a transmitting agency in the Member State of origin if  all relevant 
contact details of receiving agencies are available online.  

Another  issue  identified  during  this  step  is  the  contrasting  approaches  regarding  costs  for 
service.  In  some  Member  States,  the  costs  for  service  through  a  judicial  officer  or  bailiff  is 
sought  upfront,  but  only  after  the  request  has  been  transmitted  to  the  receiving  agency. 
Because information is not always clearly provided (e.g. on the e-Justice portal) on this, it can 
lead to delays in proceeding with the request as the information has to first be communicated 
to the transmitting agency and then payment has to be processed. If the transmitting agency is 
aware of this condition upfront, it can send payment with the request which would allow for 
much speedier service.  

Step 2: Transmission of documents between transmitting and receiving agencies (and 
subsequent communications) 
The  procedure  of  service  through  transmitting  and  receiving  agencies  is  functioning 
satisfactorily  in  principle  but  one  main  barrier  to  efficient  and  speedy  transmission  of 
documents is the strong reliance of Member States' authorities on paper communication. This 
is  also  exacerbated  by  the  use  of  various  different  standard  forms  for  the  communication 
between the agencies.  

The  table  below  provides  an  overview  of  the  means  of  receipt  of  documents  by  receiving 
agencies in the Member States. 

Table  18:  Overview  of  accepted  means  of  receipt  of  documents  and  of  communication  by 
receiving agencies 

28 

 
 
Member State 

Postal service   Fax 

Email 

Telephone  Other 

x 
Austria 
x 
Belgium 
x 
Bulgaria  
x 
Croatia  
x 
Cyprus 
x 
Czech Republic 
x 
Denmark 
x 
Estonia  
x 
Finland 
x 
France 
x 
Germany 
x 
Greece 
x 
Hungary 
x 
Ireland  
x 
Italy  
x 
Latvia  
x 
Lithuania  
x 
Luxembourg  
x 
Malta  
x 
Netherlands 
x 
Poland  
x 
Portugal  
x 
Romania 
x 
Slovakia  
n/a 
Slovenia 
n/a 
Spain 
Sweden  
x 
United Kingdom  x 
26 
Total 
Source: e-Justice portal173 

X 
x 

x 
x 
x 
x 
x 

x 

x 
(x) 

x 
x 
(x) 
(x) 

x 

x 
x 
17 / (3) 

X 

X 
X 
X 

X 

(x) 

X 

X 
(x) 
(x) 

x 

(x) 

(x) 

x 

(x) 

x 

x 

x 

x 

(x) 

(x) 

(x) 

10 / (3) 

5 / (3) 

7 (3) 

In  fieldwork  interviews  the  economic  contractor  found  that  almost  all  communication 
between transmitting and receiving agencies is conducted through regular post. Even in cases 
where no particular issues arise, the use of regular post means that a certain amount of time is 
spent on communication even before any attempts to serve the document. Where issues arise 
or clarifications are needed with regard to the request (e.g. clarification of address or method 
of service) communicating this through post can significantly delay the process. The results of 

173 https://e-Justice.europa.eu/content_serving_documents-373-be-en.do?member=1  

29 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                            
the online survey indicate that email is never or rarely used, even in Member States where this 
was  communicated  as  an  accepted  means  of  communication.  Two  main  reasons  can  be 
identified for the low uptake of email communication between the agencies: 

  Transmitting and receiving agencies in the Member States explained that the method of 
working with paper documents on the one hand is most practical for them since it is in 
line with their regular working practice. On the other hand, it is recognised that it may 
not be the most efficient way of working. Practically speaking, although a request may 
have been received by the mail department, it may take some days for the relevant staff 
to process it and to send an acknowledgement of receipt to the transmitting agency. The 
majority  of  respondents  to  the  survey  indicated  that  they  either  occasionally  or  (very) 
frequently have difficulty in sending the acknowledgement of receipt within the 7 days 
required under the Regulation. This is also supported by the national interviews carried 
out  by  the  contractor,  on  the  basis  of  which  the  contractor  estimated  that  in 
approximately  30%  of  cases,  an  acknowledgement  of  receipt  is  not  received  by  the 
transmitting agency. 

  Security  concerns  were  identified  as  another  reason  for  the  low  uptake  of  electronic 
means  of  communication.  However,  there  are  some  contradictions  with  this  finding. 
Stakeholders  noted  that  security  of  documents  may  also  be  at  risk  with  postal  service 
because there is the possibility that documents get lost (when agencies use regular post 
for  transmission  between  themselves)  or  it  is  delivered  to  the  wrong  addressee.  Some 
interviewees also  highlighted  the potential  security risks that accompany simple email 
as a means of transmitting documents. This is likely because public bodies are not sure 
of the IT security measures of their counterparts in other Member States and the hosting 
provider of their email systems.  

Step 3: Service of the document by the receiving agency   
An important modification in the rules on serving documents in the EU introduced with the 
current Regulation is the 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.174 

In general, although most stakeholders consulted during the study agreed that the Regulation 
has improved the efficiency of serving documents across borders, reservations were expressed 
regarding the burden and length of the process for service through transmitting and receiving 
agencies. It was highlighted by some stakeholders that this type of service is not reliable in 
cases  where  timing  is  crucial  (e.g.  in  insolvency175  or  enforcement  cases).  The  time  limits 

174 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. 

175 The Regulation (EU) 2015/848 on insolvency proceedings anticipated this circumstance by expressly stating 
in recital (64): "It is essential that creditors which have their habitual residence, domicile or registered office 

30 

 
 
                                                            
 
contained in the Regulation are mostly not adhered to by the agencies and are thus regarded as 
unrealistic  by  interviewees.  This  result  corresponds  to  the  outcome  of  the  online-public 
consultation, in which almost 42% of those who expressed an opinion were of the view that 
there were delays compared to the time limits set by the Regulation. 

A main argument in favor of using receiving agencies for the purposes of cross-border service 
of documents was the guarantee that an acknowledgement of receipt will be received. Indeed, 
lawyers in Member States that are not obliged to serve documents through court officials (e.g. 
bailiffs)  cited  the  assurances  that  come  with  service  through  transmitting  and  receiving 
agencies as one of the main benefits. Despite service by registered post being available in all 
Member  States,  lawyers  appreciate  the  guarantee  of  service  if  it  is  completed  by  an  agency 
and that it will not be questioned in the court of origin.  

In  addition,  although  not  a  regular  or  a  consistent  occurrence  in  the  Member  States,  the 
involvement  of  transmitting  and  receiving  agencies  can  assist  in  locating  the  addressee  or 
clarifying the address on the document. For example, one transmitting agency signalled that 
when an address is clearly wrong or has been spelled phonetically, they would directly modify 
the  address  to  ensure  that  it  reaches  the  correct  person  without  recourse  to  the  transmitting 
agency. The fact that receiving agencies have knowledge on the procedures in their Member 
States was also regarded as a key advantage of this method of service.  

Step 4: Returning the certificate of completion or non-completion of service 
The  final  step  in  the  service  of  documents  through  receiving  and  transmitting  agencies  is 
filling out of the annex form regarding the service or non-service of documents. No general 
issues were reported with this step. However, again, delays in the transmission of such form 
was highlighted. 

5.1.1.4. Service by postal services 

Overall, the inclusion of postal services within the Regulation as an alternative means 
to  service  through  transmitting  and  receiving  agencies  is  positive.  Stakeholders 
generally  appreciate  the  low  cost  of  the  service  and  the  fact  that  when  filled  in 
correctly, the acknowledgment of receipt is mutually recognised by courts in the EU. 
Difficulties  arise  however  when  the  quality  of  the  service  is  insufficient  including 
where the acknowledgement of receipt is filled in incorrectly and cannot be used as an 
actual proof of service or non-service. 

Due to the low cost and expeditiousness of service by post, it is the most used form of service 
of documents and is the preferred method of service176 in cross-border cases. Different from 

in  the  Union  be  informed  about  the  opening  of  insolvency  proceedings  relating  to  their  debtor's  assets.  In 
order  to  ensure  a  swift  transmission  of  information  to  creditors,  Regulation  (EC)  No  1393/2007  of  the 
European Parliament and of the Council (6) should not apply where this Regulation refers to the obligation to 
inform creditors."  

176  All  respondents  to  the  survey  carried  out  by  the  economic  contractor  indicated  that  registered  post  is  their 

preferred method. See also Report COM/2013/0858 final, p. 13. 

31 

 
 
                                                                                                                                                                                          
the Hague Convention on service abroad, no Member State may prohibit the direct service by 
postal  services.  The  main  advantage  of  this  method  of  service  is  the  reduction  of  costs 
compared  to  other  methods  of  transmission.  Interviewees  also  noted  that  where  the 
acknowledgement of receipt is filled in properly and returned, it provides a satisfactory level 
of  legal  certainty.177  Legally  speaking,  the  fact  that  service  by  registered  post  in  another 
Member State is expressly recognised in the Regulation, provides guarantees to lawyers and 
judicial officers that this service will be recognised in any court in the EU. 

However, there are still some issues communicated by the interviewees of the economic study 
regarding the quality and reliability of postal services for the purposes of cross-border service 
of  documents.  Although  63%  of  respondents  to  the  public  consultation  indicated  that  the 
Regulation  contains  clear  rules  on  service  by  post  in  another  Member  State,  55%  indicated 
that they have experienced problems with service by post.  

The biggest issue seems to be the different levels of quality of postal services in the Member 
States.178 Some interviewees pointed out that post is unreliable since they do not know if the 
postal services will deliver in time or to the right person. The origin of this practical problem 
lies in the fact that the Regulation does not harmonize the conditions relating to the eligible 
substituting recipients (i.e. who are the persons under the address whom the document can be 
handed over if the addressee is not present at the time of the delivery), and does not regulate 
the consequences of an unclaimed delivery (i.e. when the document is left uncollected and is 
returned  to  the  sender  by  the  postal  operator).  Courts  are  aware  that  postal  services  may 
unintentionally provide the document to a family member or other person/staff member at the 
premises  (i.e.  substituted  service)  unaware  of  the  legal  implications  of  such  act.179  In  all 
Member States, the risk with registered post is that the addressee is not at the address at the 
time  the  mail  carrier  comes.  As  a  notice  is  normally  left  at  the  premises  to  inform  the 
addressee that a package is available at the post office for collection, the addresses may not 
take  proper  notice  of  the  note  or  will  not  go  the  post  office  to  collect  it  (because  of  time 
constraints or on purpose to avoid the reception of the document). The length of time which 
the  document  remains  at  the  post  office  for  collection  is  also  different  depending  on  the 
Member State and service provider. 

Another crucial issue regarding service through post is varying approaches to filling out the 
the 
acknowledgement  of  receipt.  Many 
acknowledgment  of  receipts  is  often  not  sufficient  to  prove  that  service  was  effective.  For 
example the date  of receipt  may not  be properly filled in  or  the signature is  illegible or  not 
supplied. In addition, some interviewees highlighted the fact that it is unclear whether digital 
versions of acknowledgment are regarded as “equivalent” to original versions. 

interviews  mentioned 

the  quality  of 

that 

177 Supported also by 63% of respondents to the public consultation who indicated that ‘The Regulation contains 
clear rules on service by post of a judicial or extrajudicial document in another Member State, it provides a 
satisfactory level of legal certainty in this regard’. 

178 This issue has appeared in 19 out of 114 cases analysed on the Unalex database. 
179 For an example see: OLG (DE) 26.07.2005 - 16 U 59/05, unalex DE-1822 

32 

 
 
                                                            
In  addition,  interviewees  noted  that  the  approach  to  the  treatment  of  official  documents  by 
postal  services  in  the  Member  States  is  different.  In  some  Member  States  for  example 
(Hungary, Slovenia, Italy) official documents are clearly identifiable to the postal services and 
are  treated  in  a  different  way  to  regular  registered  post.  It  was  noted  that  once  a  registered 
letter  goes  across  border,  the  postal  services  in  other  Member  States  may  not  recognise  the 
official nature of the document. Even if the official nature of the document is recognised, the 
Member State may not have any specific procedure in place for prioritising the delivery of the 
document.  

5.1.1.5. Direct Service 

Stakeholders  have  indicated  that  direct  service  is  an  efficient  method  of  serving 
documents. This is because the sender is assured that appropriate efforts will be made 
to locate the addressee and information on the right to refusal is provided. However, 
the  fact  that  direct  service  is  only  available  in  12  Member  States  ultimately  hinders 
the  ability  of  applicants  to  transmit  documents  in  this  efficient  and  speedy  way. 
Further, some Member States have very strict rules on the way that direct service can 
be used under Art. 15 of the Regulation, which may differ from the domestic rules in 
their  Member  State.  This  may  cause  confusion  and  additional  burdens  to  senders 
attempting service from other Member States. 

The direct service of documents under the Regulation is officially available in 12 jurisdictions 
(11  +  Scotland).  Some  lawyers  informed  the  contractor  that  if  they  are  unsure  of  the 
procedure in another Member State, they would send  the document for  direct service in  the 
Member State addressed to a lawyer or process server/bailiff in that Member State. This tends 
to happen more in Member States where service is conducted more by lawyers as opposed to 
judicial officers and between neighboring Member States (since their legal cultures are more 
likely or are presumed to be more similar).  

Table 19: Availability of Direct Service in the Member States 

Member States allowing direct service of 
documents 

BE, DK, EL, FR, HU180, IT, CY, LU, MT, NL, FI, 
SCT181 

Member States not allowing direct service of 
documents 

BG, CZ, EE, IE, HR, LV, LT, HU, AT, PL, PT, RO, SI, 
SK, EN&WAL182, NI183 

Limited application (i.e. with 
conditions/exceptions) 

Source: e-Justice Portal l184 

DE, SE 

180  Information  not  yet  updated  on  the  e-Justice  portal:  As  of  1  Jan  2018,  the  Hungarian  Chamber  of  Judicial 

Officers is also a receiving agency. Article 15 is not used for outgoing requests by HU.” 

181 Scotland 
182 England and Wales 
183 Northern Ireland 

33 

 
 
                                                            
No evidence was found of major issues associated with direct service under Article 15. On the 
contrary,  when  used,  direct  service appears  to  be  an  efficient  and effective service whereby 
the sender is sure that appropriate efforts will be made to locate the addressee and information 
on  the  right  to  refusal  is  provided.  The  issues  with  direct  service  are  the  different  levels  of 
availability  across  the  Member  States  and  the  costs  associated  with  it  (see  section  5.1.1.4 
above).  

On  assessing  whether  the  Regulation  has  succeeded  in  meeting  the  objective  of  facilitating 
direct  service,  several  factors  are  relevant.  On  the  one  hand,  positive  efforts  to  meet  this 
objective are acknowledged i.e.: 

1.  The option for Member States to apply the provision is available in the Regulation; 
2.  Mutual recognition of service through this method is ensured where Member States 

are applying it; 

3.  Flat rate fees, fixed in advance by the Member States concerned, and published on 

the e-Justice portal. 

On the other hand, the full realisation of the objective is being hindered by two main barriers. 
The first barrier is the fact that less than half of the Member States are applying this provision. 
Despite  direct  service  being  available  in  more  than  12  Member  States  for  domestic 
proceedings, it is not fully available for applicants from other Member States.  

Secondly, the disparity in fees for direct service across the Member States is another barrier to 
the  increased  uptake  of  the  method.  Although  Member  States  should indicate  fixed  fees  for 
direct service in their Member State, the extent to which these fees are applied in practice is 
questionable. Based on data provided by interviewees costs for direct service may range from 
EUR  35  to  EUR  135.  Thus,  the  direct  service  method  is  one  which  can  cause  significant 
uncertainty  to  the  parties  involved  because  of  its  limited  availability,  certain  conditions 
applied  under  the  Regulation  that  are  not  consistent  with  the  national  law  of  the  receiving 
Member State and the disparity of costs.  

5.1.2.  Achievement of the specific objectives 

The specific objectives as set out in the Intervention Logic are: 

  Improving the efficiency and speed of cross-border proceedings; 
  Improving  access  to  justice  and  protecting  the  procedural  rights  of  parties  to  a 

proceedings; 

  Minimising the burden for citizens and businesses involved in cross-border proceedings. 

It  was  found  that  the  Regulation  has  impacted  positively  on  all  specific  objectives. 
Overall,  while  the  Regulation  has  improved  the  efficiency  and  speed  of  judicial 

184 https://e-Justice.europa.eu/content_serving_documents-373-en.do  

34 

 
 
                                                                                                                                                                                          
proceedings and thereby also contributes to ensuring the right to access to justice and 
the protection of the rights of the parties, there is still room for improvement. 
Regarding minimising the burden for citizens and businesses involved in cross-border 
proceedings,  although  the  Regulation  has  improved  the  situation,  it  does  not  exploit 
all possible opportunities for further minimising burdens under the Regulation. The 
most  notable  defect  in  this  regard  is  the  non-recognition  or  promotion  of  faster  and 
direct means of digital communication. 

5.1.2.1.Improving the efficiency and speed of cross-border proceedings 

Overall,  the  Regulation  has  contributed  to  improving  the  efficiency  and  speed  of 
cross-border  proceedings.  Despite  delays  in  the  process  of  serving  documents, 
stakeholders  generally  agree  that  the  situation  has  improved  with  the  use  of  the 
Regulation. 

According  to  76%  of  respondents  to  the  online  survey,  the  Regulation  has  contributed  to 
improving the efficiency and speed of cross-border proceedings. These findings are supported 
by the majority of interviewees in the Member States. 

The factors contributing to the achievement of this objective include: 

  The  direct  communication  between  the  transmitting  and  receiving  agencies  in  the 
Member States  (no intermediary body included, such  as  the Central  Authorities in the 
workflow of the 1965 Hague Convention) and the decentralization of the "end points" 
of the communication channel; 

  Standardised forms of communication between agencies; 
  The  general  acceptance  of  certain  direct  method  of  service  of  documents  (service  by 

registered post and the "direct service"); 

  Provision of information on service on documents on the e-Justice portal. 

However, as described also under Section 5.1.1, the Regulation still has some limitations in 
terms  of  achieving  the  objective  of  improving  the  efficiency  and  speed  of  cross-border 
proceedings  with  more  rapid  and  direct  means  of  communication  between  agencies.  This  is 
magnified  by  the  lack  of  electronic  communication  and  the  high  administrative  burden 
associated with paper-based communication. 

5.1.2.2. Improving access to justice and the protection of the procedural rights of 

parties involved in cross-border proceedings 

The  Regulation  has  contributed  to  improving  access  to  justice  and  protection  of 
procedural rights  of  the  parties  involved  in  cross-border  proceedings,  but  not  yet  to 
the full extent. Although the provisions on the right to refusal and default judgments 
contained  in  the  Regulation  are  welcomed  by  stakeholders,  issues  still  exist  with 
regard to their interpretation and application in the Member States. In addition, the 
Regulation does not address its relationship to the use at domestic level of fictitious or 
alternative  methods  of  service  on  addressees  with  a  residence  or  seat  in  another 
Member State, which can also impact of the rights of parties involved in cross-border 

35 

 
 
 
proceedings. 

For the analysis of the Regulation’s contribution to protecting the procedural rights of parties 
to a proceeding, it is important to look at the two main provisions of the Regulation related to 
protecting the procedural rights of parties to a proceeding: 

  The right to refusal of documents served (Art. 8); 
  Protection against default judgments (Art. 19). 

Issues affecting the rights of parties that are omitted from the Regulation are also presented 
subsequently. 

The right to refusal of documents 

Under the Regulation, the addressee has the right to refuse documents if they are not written 
in or accompanied by a translation into, either of the following languages: 

  A language which the addressee understands; or 
  One of the official languages of the place of service. 

This right ultimately protects the parties against a case being brought against them which they 
do  not  understand.  As  identified  above  in  Section  5.1.1.2,  the  provision  of  documents  in  a 
language not in compliance with Article 8 is a rare occurrence. Interviewees further stated that 
even  where  a  document  is  not  provided  in  the  appropriate  language,  this  is  easily  remedied 
and it does not ultimately affect the rights of the addressee.  

This  provision  introduced  by  the  original  Regulation  of  2000,  which  based  the  language 
requirement on the subjective language knowledge of the addressee is an improvement over 
the  solution  of  the  1965  Hague  Convention  on  the  service  of  documents  and  made  formal 
service possible even in cases where the documents were not translated in the language of the 
receiving State185  where this is in line with the legitimate procedural interests of the parties to 
the proceedings: as a general rule, translation of the document is not necessary, but the rights 
of the defence of the recipient is adequately protected by the possibility of refusing the service 
of the document. 

The new solution enabled cheaper and speedier service of documents between Member States, 
but  it  generated  an  extra  difficulty  in  the  context  of  the  assessment  of  the  validity  of  the 
refusal.  Whereas  the  assessment  of  the  objective  criterion  of  having  a  translation  into  the 
language of the receiving State is easy; getting convinced on the language knowledge of the 
recipient is more complex, and requires the thorough assessment of several various objective 

185 Pursuant to paragraphs (2) and (3) of Article 5 of the 1965 Hague Convention, a document without translation 
into  the  official  language  of  the  State  addressed  may  be  served  to  an  addressee  only  if  he/she  accepts  it 
voluntarily (= 'informal service').  

36 

 
 
                                                            
factors that hint only indirectly to the existence of the subjective requirement (language skills 
of  the  recipient).  This  situation,  in  lack  of  clear  indicators  or  guidance  in  the  Regulation, 
generates  problems  in  course  of  the  practical  application.186  On  the  other  hand,  there  is  a 
potential for abuse: transmitting agencies have indicated that it is not clear whether a citizen 
who speaks the language of the Member State where the action is being brought  can abuse 
the  system  by  refusing  to  accept  the  document  if  it  is  not  translated  into  the  language  of 
his/her place of residence. 

In addition, information on the right to refusal must be provided to the addressee through the 
standard  form  in  Annex  II  of  the  Regulation.  The  provision  of  information  on  the  right  to 
refusal  appears  in  20  out  of  114  cases  analysed  on  the  Unalex  database.  In  these  cases,  in 
general it was an issue before the court that the information on the right of refusal according 
to Article 8 of the Regulation had been misleading or not given. Examining this issue in more 
detail, it was found that as a general rule, the competent agencies do enclose the annex form 
to the documents to be served. Some instances were reported, however, where the receiving 
agency  did  not  provide  the  form  because  it  deemed  that  the  documents  were  already  in 
compliance  with  the  language  requirements  and  that  the  addressee  did  not  have  the  right  to 
refuse in any case187. It was also found that some Member States go beyond the requirement of 
just providing the annex form to the addressee but also explain the right to refusal personally 
(where process servers/bailiffs are involved188) when serving the documents.  

Overall,  interviews  with  stakeholders  found  that  the  right  to  refusal  based  on  language 
competences  is  an  important  provision.  However,  the  Regulation  lacks  clarity  in  terms  of 
rights of addressees who do not understand the official language of the place of service and to 
the provision of information to addressees on the right to refusal and where it is clear that the 
addressee understands the language of the document. 

186 E.g. in the Case C-14/07, Weiss the CJEU gave certain guidance on how to conclude on the existence of the 
language skills of the addressee under the Regulation. The Court was asked to decide on the relevance in the 
context  of  Article  8  of  the  Regulation  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  per  se  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. The proposal drafted in the ELI-UNIDROIT project "From 
Transnational  Principles  to  European  Rules  of  Civil  Procedure"  also  found  necessary  to  clarify  certain 
indicators helping the assessment of the actual language skill of the defendant.   

187  Such  an  activism  was  denied  by  the  CJEU  to  the  receiving  authorities  under  the  Regulation:  in  C-519/13, 
Alpha Bank Cyprus the Court held that the receiving agency is required, in all circumstances and without it 
having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to 
accept that document, by using systematically for that purpose the standard form set out in Annex II to the 
Regulation.  

188 E.g. in France, Belgium. 

37 

 
 
                                                            
Default judgments based on a failure to respond 

Interviews in the fieldwork Member States found that default judgments are quite common in 
cases  falling  under  the  Regulation.  Interviewees  in  Estonia  and  Belgium  estimated  that  this 
occurs in approximately 70% of cases.  

Despite  default  judgments  being  passed  quite  frequently,  the  economic  study  reports  that 
courts generally apply a rigorous assessment on whether all available means for the service of 
documents  have  been  exploited  (in  line  with  or  even  beyond  conditions  set  out  in  Article 
19(1)-(2)). But, in fact, this does not mean that the interests of the defence are in all instances 
properly  protected,  since  Article  19(2)  of  the  Regulation  allows,  led  by  the  reasons  of 
procedural  economy,  for  a  continuation  of  the  proceedings  even  if  the  court  could  not 
establish that  the  foreign  defendant  was  actually  informed.  The  2017  MPI  Study found  that 
the  court  of  origin  will  often  not  be  able  to  establish  whether  or  not  service  in  another 
Member  State  has  been  effected  on  the  defendant  or  whether  the  defendant  has  at  least 
received the relevant document because a court will often not be in a position to investigate 
the  details  of  the  service  process  in  another  Member  State.189  Furthermore,  the  latter  Study 
concludes  that  the  reservation,  which  has  been  notified  by  more  than  half  of  the  Member 
States,  which  allows  for  the  continuation  of  the  proceedings  after  six  months  have  elapsed, 
does result in fictitious service on the defendant that will not only undermine the defendant’s 
protection but is also contrary to the idea of mutual trust. "The mere fact that a period of six 
months has already expired is no indication whatsoever that service has actually taken place. 
Therefore the legislator accepts obvious violations of the respondents’ right to be heard here. 
This is obviously inconsistent with the principle of mutual trust."190  

Another weakness of the system in the protection of the right of the defence is detected in the 
uneven level and lack of transparency of the available legal remedies after a default judgment 
has been issued. Although the economic contractor noted the view of several interviewees that 
even  when  a  default  judgment  has  passed,  normally  the  appeal  system  works  well  if  a 
defendant appears acknowledging late knowledge of the proceeding.. Article 19(4) provides a 
special,  autonomous  provision  by  which  default  judgments  brought  in  the  absence  of  the 
defendant  may  be  set  aside  on  the  basis  that  the  latter  was  not  properly  informed  about  the 
institution  of  the  foreign  proceedings  brought  against  him/her.  The  problem  with  this 
autonomous extraordinary relief of the EU law is that its accessibility may be limited in time 
by the Member States (a majority of them communicated to the Commission that they will not 
entertain  a  request  for  the  relief  once  one  year  has  passed  from  the  issuance  of  the  default 
judgment).  Another  problem  of  this  autonomous  extraordinary  relief  is  its  relationship  to 
further extraordinary reliefs in national law. In connection with this issue, the CJEU has held 
in  C-70/15,  Lebek,  that  Article  19(4)  excludes  the  application  of  provisions  of  national  law 
which  contain  more  generous  time  limits  for  relief,  once  the  period  for  filing  such 

189 2017 MPI Study, p. 170. 
190 2017 MPI Study, p. 171. 

38 

 
 
                                                            
applications,  as  specified  in  the  communication  of  a  Member  State  to  which  that  provision 
refers, has expired.191  

Issues affecting the rights of parties that are omitted from the Regulation 

A  problem  affecting  the  rights  of  the  defence  follows  from  the  vague  precondition 
determining  the  scope  of  application  of  the  Regulation,  according  to  which  it  should  apply 
only  when  a  document  has  to  be  transmitted  from  one  Member  State  to  another.  This 
precondition enables courts to keep the service of a document in a "domestic" context and to 
use national methods of substituted or fictitious service of documents also in cases where the 
addressee  has  his/her  residence  or  seat  in  another  Member  State.  This  constitutes  a  clear 
disadvantage  for  foreign  addressees,  since  when  the  Regulation  is  not  used,  the  uniform 
standards therein protecting the rights of the defence (such as Art. 8 or Art. 19) do not apply. 
The  frequency  of  this  problem  can  be  demonstrated  by  the fact,  that  in  total,  19  out  of  114 
cases analysed on the Unalex database involve considering service valid in Member State A 
by  the  use  of  fictitious  or  alternative  methods,  irrespective  of  whether  the  defendant  in 
Member State B was informed.  

In general, interviews with stakeholders found that fictitious service is quite common in cross-
border  proceedings  but  again,  the  methods  for  appeal  seem  satisfactory  in  these  cases. 
Nevertheless  the  lack  of  guidance  of  the  Regulation  on  the  use  at  domestic  level  of 
fictitious192  and  substituted  service193  on  addressees  with  a  residence  or  seat  in  another 
Member  State  causes  ambiguity  and  fragmentation  concerning  the  rights  of  parties  in  the 
Member States. 

191  In  the  concrete  case  at  hand,  the  CJEU  has  finally  protected  the  interests  of  the  defendant  against  the 
inappropriate recognition and enforcement of a foreign default judgment, which was taken in a proceeding 
about  which  he  was  not  informed.  The  Polish  defendant  was  informed  about  the  existence  of  a  default 
judgment issued in France against him only, when the recognition of that judgment was sought in Poland, 15 
months after the judgment has been rendered by the French court. Since France communicated under Article 
19(4) of  the  Regulation  that it  will  not entertain  an  application  for  the  extraordinary  relief  if  it  is  not filed 
within one year counted from the issuance of the judgment, the defendant in the case could not anymore rely 
on  the  extraordinary  relief  in  Article  19(4)  of  the  Regulation.  The  claimant,  however,  stated  that  the 
defendant could still have challenged the default judgment on the basis of an extraordinary relief provided by 
the French national law (Article 540 of the French Code of Civil Procedure). The conclusion of the CJEU 
finally  helped  the  defendant  in  this  case:  since  the  extraordinary  relief  in  Article  19(4)  was  not  anymore 
available to the defendant, the additional possibility under national law was excluded by the CJEU, and so 
the  defendant  could  rightly  invoke  the  refusal  ground  in  Article  34(2)  of  Brussels  I,  because  the  national 
relief under Art. 540 CCP could not be considered as a "proceedings to challenge the judgment" 

192 Fictitious service refers to where the applicant does not necessarily aim to inform the party, but just to ensure 
that there is an act considered as formal service so that the proceedings may be continued ("publication on 
the court board",  placing the doc. to be served to the case file). It is almost certain that the defendant does 
not get the information. 

193  Substituted  service  refers  to  service  of  the  document  indirectly  i.e.  not  on  the  addressee  themselves  but 

service at the place of work, a family member or a representative. 

39 

 
 
 
                                                            
5.1.2.3.Minimising the burden for citizens and businesses involved in cross-

border proceedings 

Although  the  Regulation  has  contributed  to  reducing  the  costs  for  citizens  and 
businesses  involved  in  cross-border  proceedings  the  burdens  have  not  been 
minimised. Ambiguities in the Regulation cause additional costs for citizens and rapid 
and  technological  opportunities  that  could  further  reduce  burdens  are  not  fully 
exploited by the Regulation. 

The main sources of burden for businesses and citizens involved in legal proceedings are: 

  Time taken to conclude the case;  
  Court fees; 
  Costs for legal advice; 
  Costs for the translation of requests and/or documents;  
  Stress related to prolonged proceedings (i.e. based on delays of service).  

Based  on  the  above  analysis  on  the  functioning  of  the  different  methods  of  service  of  the 
Regulation,  it  can  be  seen  that  the  burdens  have  generally  been  reduced  by  the  Regulation 
since  delays  for  service  of  documents  have  been  reduced.  However  some  limitations  have 
been observed.  

As concerns the time taken to conclude a case, the Regulation has contributed to facilitating 
efficient  service  of  documents  in  cross-border  cases  to  some  degree  (Section  5.1.2.2). 
Nevertheless,  some  delays  still  exist,  due  to  the  inefficient  and  non-direct  means  of 
communication  between  transmitting  and  receiving  agencies,  delays  through  postal  service, 
mistakes  or  insufficient  filling  out  of  annex  forms  of  acknowledgement  of  receipts  etc.  For 
citizens and businesses, this means that the judicial proceedings they are involved in may take 
longer  than  necessary,  potentially  also  leading  to  additional  costs  (e.g.  more  need  for  legal 
representation).  

As explored more under efficiency below, some ambiguities in the Regulation are a cause for 
legal  uncertainty  and  additional  delays  to  the  service  of  documents.  For  example, 
understanding which language is most appropriate for the documents, the types of alternative 
methods of service available or the channels (if any) available to applicants where the address 
of the intended recipient is unknown or unclear.  

In  addition,  the  Regulation  is  limited  in  its  facilitation  of  more  rapid  means  of  service  of 
documents which could help reduce the burden for citizens. As explained above direct service 
is only available in 12 Member States and is even applied by some Member States with more 
restrictions compared to direct service domestically. Further, technological opportunities are 
not exploited by the Regulation and it contains no clear provision on the service of documents 
through electronic means. 

40 

 
 
5.1.3.  Achievement of the general objectives 

The general objectives as set out in the Intervention Logic are: 

1.  Ensure the smooth functioning of the area of freedom, security and justice, including 

by:  

a.  Strengthening the trust in the in the judicial systems of the Member States and 

the EU; 

b.  Safeguarding fundamental rights in the EU.  

2.  Ensuring the smooth functioning of the internal market.  

The  Regulation  has  impacted  positively  to  some  extent  on  both  general  objectives. 
Overall,  the  Regulation  has  had  a  notably  positive  impact  on  ensuring  the  smooth 
functioning of the area of freedom, security and justice.  
Regarding  ensuring  the  smooth  functioning  of  the  Internal  Market,  the  Regulation 
was found to neither significantly generate negative or positive impacts. 

The results of the assessment on the operational and specific objectives are described below in 
terms of the overall impact on these higher level objectives. 

5.1.3.1. Ensure the smooth functioning of the area of freedom, security and 

justice   

The Regulation has certainly succeeded in ensuring greater trust between the judicial systems 
of  the  Member  States.  This  is  mostly  achieved  through  the  mutual  recognition  of  service 
methods  in  the  Regulation  and  the  legal  certainty  provided  with  service  through  designated 
receiving  agencies.  Although  there  is  still  room  for  improvement  in  terms  of  delays, 
interviewees in the fieldwork Member States noted the increase in fluidity of communication 
and cooperation between judicial authorities. 

In addition, it was found that the Regulation has improved the protection for the procedural 
rights of parties involved in cross-border proceedings through inclusion of provisions on e.g. 
the  right  to  refusal  of  documents  and  defendant  not  entering  an  appearance.  However, 
remaining  ambiguities  in  the  application  of  these  provisions  generate  a  certain  level  of 
uncertainty for stakeholders. 

5.1.3.2. Ensuring the smooth functioning of the Internal Market 

The evidence collected as part of this study and presented in the previous sections shows that, 
while  there  is  still  room  for  improvement,  the  Regulation  does  contribute  to  an  area  of 
freedom, security and justice and a smooth functioning of the internal market.  

It does so by introducing useful methods for the service of documents in cross-border cases. It 
helps to make communication between courts more streamlined and if carried out smoothly, it 
also helps to increase mutual trust between courts, as courts communicate more directly and 
work together. In addition, trust by citizens and businesses in the legal systems of the Member 

41 

 
 
States  may  be  improved  if  they  have  positive  experiences  with  cross-border  service  of 
documents.  

This way, the functioning of cross-border proceedings is improved, which has positive effects 
on  the  area  of  freedom,  security  and  justice,  including  because  access  to  justice  and  the 
protection of the rights of the parties are improved.  

However,  evidence  is  weak  regarding  the  claim  that  the  costs  and  delays  associated  with 
cross-border proceedings have been greatly reduced by the Regulation. Although stakeholders 
agree that some notable improvements have been made in comparison to the situation before 
the Regulation, the main method of service under the Regulation i.e. through the transmitting 
and receiving agencies is found to be bureaucratic and time consuming. The Regulation has 
attempted  to  restrict  delays  in  the  timing  for  service  of  documents  through  timeframes  for 
formal documents to be completed. However, it was found that the timeframes are mostly not 
adhered to and even regarded by some stakeholder as unrealistic in the current system. 

Regarding  potential  negative  impacts  on  the  Internal  Market,  no  evidence  was  found  to 
suggest  that  the  issues  concerning  service  of  documents  in  cross-border  proceedings  would 
inhibit EU businesses or citizens from engaging in cross-border transactions. 

As  mentioned  in  section  0,  the  only  issue  that  could  be  considered  as  contrary  to  Internal 
Market  principles  is  the  restrictions  applied  to  direct  service  in  the  Member  States.  As 
explained  above,  direct  service  is  available  under  the  Regulation  in  only  12  Member  States 
yet  it  is  available  within  the  domestic  procedures  of  more  than  12.  Thus,  the  Regulation  is 
hindering  the  access  of  parties  involved  in  a  cross-border  proceeding  to  services  that  are 
available in the Member States. 

5.2.  Efficiency 

The  assessment  of  efficiency  considers  the  relationship  between  the  resources  exhausted  by 
the  intervention  and  the  achievements  of  the  intervention.  Thus,  this  section  focuses  on  the 
costs  and  benefits  in  terms  of  compliance  with  the  Regulation.  The  following  sub-sections 
analyse the: 1. Compliance costs for Member States; 2. Costs for citizens and businesses; and 
balances them with regard to the effects of the Regulation. 

Overall,  the  effects  of  the  Regulation  have  been  achieved  at  a  reasonable  cost.  The 
costs  for  Member  States  to  comply  with  the  Regulation  consists  of  allocating 
administrative  tasks  to  relevant  bodies  and  providing  information  for  the  e-Justice 
portal. Relatively speaking, this is not a significant burden when compared with the 
positive  effects  of  the  Regulation  i.e.  that  a  common  process  among  competent 
agencies  exists  for  serving  a  document  in  the  EU;  that  there  is  a  common  set  of 
alternative  ways  for  direct  transmission  and  service  of  the  documents  in  another 
Member  State;  and  that  information  is  available  online  for  the  execution  of  service.  
Nevertheless,  there  is  scope  for  simplifying  the  administrative  burden  for  judicial 

42 

 
 
 
authorities in terms of the communication through forms annexed in the Regulation. 
The  Regulation  has  not  imposed  any  unnecessary  or  additional  costs  on  citizens  or 
businesses  involved  in  cross-border  litigation.  The  concrete  cost-factors  for  citizens 
and businesses involved in the service of documents under the Regulation are mainly 
the  translation  costs,  costs  stemming  from  the  delays  the  cross-border  nature  of  the 
delivery  process  brings  with  it,  and  in  some  Member  States  the  costs  for  the 
intervention  of  agents  who  are  responsible  for  serving  judicial  and  extrajudicial 
documents. There is no evidence that the Regulation has increased these costs, rather 
the  opposite:  certain  elements  of  the  Regulation  (reduction  of  the  need  for 
translations,  direct  communication  between  agencies  and  flat  rate  fees  for  the 
intervention  of  a  judicial  officer)  contributed  to  the  mitigation  of  these  costs.  In 
addition,  the  availability  and  recognition  of  service  of  documents  by  post  under  the 
Regulation  is  regarded  as  a  highly  positive  intervention  and  reduces  the  costs 
compared with using direct service (under Article 15).  
However,  the  non-exploitation  of  electronic  means  of  communication  and  service  of 
documents  is  a  major  barrier  to  a  more  efficient  functioning  of  the  Regulation. 
Furthermore, it is unclear for stakeholders whether email or other IT solutions could 
be used for purposes of serving directly an addressee in another Member State, as no 
provision is provided in the Regulation for this.  

5.2.1.  Compliance costs for Member States 

Member States are faced with the following costs under the Regulation: 

  Setting up of a central body, transmitting and receiving agencies; 
  Costs for the service of documents; 
  Provision of information for the e-Justice portal. 

As part of the Regulation, Member States are obliged to designate bodies responsible for the 
receipt  and  transmission  of  documents  and  central  bodies.  An  important  change  to  the 
preceding  model  of  judicial  cooperation  under  the  1965  Hague  Convention  was  that  the 
Regulation,  by  default,  decentralized  the  task  of  the  provision  of  judicial  assistance,  and 
established  a  direct  communication  and  cooperation  obligation  between  these  decentralized 
agencies.  In  this  system,  there  is  not  much  left  for  the  Central  Bodies:  the  economic  study 
found  that  the  time  spent  by  these  central  bodies  on  dealing  with  requests  under  the 
Regulation  is  not  extensive.  As  for  the  transmitting  and  receiving  agencies,  due  to  the  vast 
procedural differences between the Member States, an estimate on the resources exhausted is 
not feasible. However, for example, an agency in a Member State receiving an average of 2 
000 requests for service per year, one full-time equivalent (FTE) staff member is  employed 
for the day-to-day administration.194 The transmitting agency in question however noted that 
the administrative burden of 2 000 requests per year for 1 FTE is already quite strenuous since 
many  requests  involve  follow-up  and  communication  with  the  relevant  authorities.  In 
addition,  the  costs  for  service  by  the  receiving  agency  must  be  borne  by  the  Member  State 

194 Based on the fieldwork interviews carried out by Deloitte and subsequent data provided by the agency. 

43 

 
 
                                                            
unless  they  use  a  particular  method  of  service  or  service  is  effected  by  a  judicial  officer  or 
competent  person  (Article  11  –  this  rule  on  sharing  of  the  costs  generated  by  the  judicial 
assistance between the States involved in the procedure and allowing reimbursement only for 
the intervention of the judicial officer follows the traditional principle of international law).  

In most cases, receiving agencies use registered post for the delivery of the documents to the 
addressees and therefore bear the costs of postage which we estimate at approximately EUR 
10 per consignment, but this depends largely on the size and weight of the package. 

It should be noted also that there are significant differences among Member States regarding 
the costs. In particular, in Member States where judicial officers are not generally involved in 
the  service  of  documents  (e.g.  in  Ireland)  the  burden  for  compliance  with  the  Regulation  is 
felt to be higher. This is because the processing and arrangement of serving documents is not 
seen  as  a  typical  “court”  function  and  additional  resources  have  to  be  mobilised  to  become 
acquainted with this service and to administer the requests.  

The  consultation  with  stakeholders  indicated  that  administrative  formalities  for  transmitting 
and receiving agencies are felt to be heavy and quite bureaucratic. This is because of the rigid 
use  of  the  long  and  complex  standard  forms  in  the  Annex  for  communication  between  the 
agencies and the heavy reliance on paper-based procedures and postal service.  

Member States are also obliged to provide information to the Commission for publication on 
the e-Justice portal relevant for the functioning of the Regulation. Member states are regularly 
prompted  to  check  whether  the  information  contained  on  the  portal  is  up-to-date  and  are 
encouraged  to  inform  the  Commission  proactively  if  any  information  needs  to  be  edited  on 
the  portal.  The  cost  involved  in  complying  with  these  requests  is  not  deemed  to  be 
significantly  burdensome  for  Member  States.  Depending  on  the  changes  in  internal  law 
affecting  the  communications  under  the  Regulation  to  the  e-Justice  Portal,  certain  working 
hours per  year should be  allocated to the responsible national content manager  to upload  or 
update  the  content.  Despite  indications  that  the  portal  is  not  always  up-to-date  of  the 
information on the portal, the majority of stakeholders agree that the information contained on 
the portal is useful (i.e. as supported by 93% of respondents to our survey195). On balance, it is 
found that the cost for providing information on the e-Justice portal is justified by the benefits 
it brings. 

5.2.2.  Costs for citizens and businesses  

The costs for citizens and business can be estimated according to: 

  Translation costs; 
  Costs of method of service (i.e. transmitting agency vs other methods); 
  Time taken to serve a document in cross-border proceedings. 

195 Out of 30 respondents. 

44 

 
 
                                                            
5.2.2.1.Translation Costs 

The  Regulation  does  not  actually  oblige  the  sender  of  documents  to  translate  them  into  the 
languages  prescribed  under  Article  8.  However    as  can  be  seen  in  the  assessment  of 
effectiveness,  in  order  to  avoid  refusals  of  documents  based  on  language,  a  majority  of  the 
lawyers  and  courts  recommend  the  parties  concerned  to  furnish  the  documents  with 
translations into the appropriate language, so that delays caused by an eventual refusal by the 
addressee could be preempted. This practice is unfortunate and goes against the intention of 
the EU legislator which, as stated, was to create a system, where translation of the documents 
is  not  needed,  as  a  default  rule.  This  is  therefore  a  relevant  cost  to  take  into  consideration 
when assessing the efficiency of the Regulation. 

The  costs  for  translation  of  a  document  are  generally  based  on  the  number  of  pages  to  be 
translated,  thus  it  is  not  possible  to  give  a  general  estimate  for  an  average  costs  for  a 
translation of a document to be served. However, the average cost for a translation per page is 
approximately EUR 82 based on the 2018 budget of the Translation Centre for the Bodies of 
the  European  Union  (CdT).196  For  a  10  page  document  (which  could  be  set  as  a  rough 
estimate of the average length of a document to be served), translation could thus be upwards 
of  EUR  800.  In  terms  of  timing  for  the  translation  however,  this  can  have  an  even  greater 
impact  since  translation  could  take  approximately  2  –  4  weeks  for  completion.  This  adds 
delays onto the already quite burdensome process. 

5.2.2.2.Costs of method of service 

The  average  costs  for  service  of  documents  through  each  of  the  available  methods  is 
estimated below: 

Table 20: Average costs per service method 

Method of service 
Transmitting/receiving agency (Article 4) 

Costs 
Free,  unless  the  Member  State  designated 
judicial  officers  as  receiving  authorities  (in 
this latter case the cost is the same as under 
direct service) 

Diplomatic or consular channels (Article 13)  Free 
Registered post (Article 14) 
Direct service (Article 15) 
Source: Deloitte, desk research and fieldwork interviews 

EUR 10 
EUR 85 

With  regard  to  transmitting  and  receiving  agencies,  as  per  Article  11,  no  fee  should  be 
charged  for  the  services  of  the  receiving  agency  in  the  Member  State  addressed  unless  a 
particular  method  of  service  is  requested  or  they  serve  the  documents  through  a  judicial 
officer  or  competent  person.  The  majority  of  receiving  agencies  serve  documents  through 
registered post, but these costs may not be charged on the applicant, due to the system relating 

196 http://cdt.europa.eu/en/documentation-type/budget  

45 

 
 
                                                            
to costs in the Regulation. In some Member States e.g. Belgium and France, where always the 
bailiffs serve the documents, the fees correspond to that of direct service. 

For registered post, the fees can vary significantly across the Member States and are largely 
based  on  the  size  and  weight  of  the  package  transmitted.  Based  on  data  gathered  from 
fieldwork  interviews  however,  the  average  cost  for  sending  via  registered  post  is 
approximately EUR 10.  

Similarly, direct service costs are quite different across the EU and can range from EUR 35 to 
EUR  135  in  some  Member  States  (e.g.  Belgium).  The  Regulation  stipulates  that  Member 
States should lay down a single fixed fee for service of documents through judicial officers or 
other  competent  persons197.  However,  there  is  still  some  uncertainty  regarding  the  costs  for 
direct  service,  e.g.  it  was  not  always  clear  if  a  communication  given  by  a  Member  State 
indicates the net or the gross eligible amount. 

Costs for the service of documents may also be enlarged due to numerous attempts of service 
of the same document. As explained through the hypothetical cases below, complications in 
the process may result in the service being rendered ineffective or refused by the addressee. 
Additional attempts must be made to then effect service and often to make up for the delay of 
the unsuccessful  attempt  of service,  more expeditious methods are used  (e.g. direct service) 
which  are  normally  more  costly.  In  addition,  as  explained  by  some  transmitting  agencies, 
sometimes two methods of service are attempted in parallel to ensure that service can be made 
within the required time. This again increases the costs for citizens and businesses. 

5.2.2.3.Time for serving a document across borders 

The  time  for  serving  a  document  across  borders  can  differ  from  Member  State  to  Member 
State and depends on the speed and quality of the method for service used. Examples of two 
instances of successful service have thus been elaborated below while demonstrating the time 
differences and delays that can be associated with one method over the other.  

Hypothetical  case  1:  Successful  but  delayed  delivery  through  transmitting  and 
receiving agencies (both the transmission between the agencies, and the delivery from 
the receiving agency to the addressee is carried out by post)  
(Article 4) 

A lawyer in Member State A (MS A) wishes to serve a writ of summons for his/her client 
on an addressee resident in Member State B (MS B).  

Day 1 – 21: the documents are being translated in the official language of the Member State 
addressed by a professional translation company 
Day 22: lawyer presents the relevant documents to the transmitting agency, a local court.  
Day 23: The court processes the request and searches for the relevant receiving agency in 
MS  B  but  can  only  find  contact  details  for  the  Central  Body.  The  court  completes  the 

197 “The requirement of a single fixed fee should not preclude the possibility for Member States to set different 

fees for different types of service as long as they respect these principles” (Recital 16). 

46 

 
 
                                                            
request for service form and sends the package to the mail department for sending to MS B.  
Day 24 – 31: The request is being transmitted by regular post to the Central Body in MS B. 
Day 32: The request is received by the mail department of the Central Body. 
Day 36: The request is processed by the administrative staff responsible for requests under 
the  Regulation  and  posted  to  the  relevant  receiving  agency  which  has  jurisdiction  to  deal 
with the request. The staff member completes the ‘Notice of retransmission of request and 
document  to  the  appropriate  receiving  agency’  and  sends  it  via  regular  post  to  the 
transmitting  agency  in  MS  A.  At  the  same  time  the  Central  Body  in  MS  B  forwards  the 
request and the document to the appropriate receiving agency in its State.  
Day 39: The request is received by the mail department of the receiving agency. 
Day 41: The request is processed by the administrative staff responsible for requests under 
the  Regulation.  The  staff  member  completes  the  ‘Notice  of  receipt  by  the  appropriate 
transmitting  agency  having  territorial  jurisdiction  to  the  transmitting  agency’  and sends  it 
by post to the transmitting agency in MS A. The staff member also sends the documents to 
be served by registered post to the addressee. 
Day 42: The mail carrier attempts  to deliver the post but the addressee is not at home. A 
notice  is  left  for  the  addressee  informing  them  that  a  delivery  was  attempted  and  that  it 
would be attempted again the following day.  
Day 43: The second attempt at service was not successful. A notice is left for the addressee 
informing  them  that  a  delivery  was  attempted  and  that  the  letter  would  be  available  for 
collection in the nearest post office for a period of 1 month. 
Day 58: The document is collected by the addressee on the 15th day after the mail carriers 
second visit.   
Day 68: The receiving agency checks the online tracking system and sees that service has 
been  successful.  The  receiving  agency  sends  the  Annex  Form  ‘Certificate  of  Service  or 
Non-Service  of  Documents’  to  the  transmitting  agency  with  a  copy  of  the  documents 
served. 
Day 68 – 78: The confirmation of receipt is being transmitted to MS A, by post.  
Day 78: The confirmation of receipt is received by the transmitting agency.  
Result: 
Successful  service  but  total  time  of  78  days  to  effect  service,  whereby  the  recommended 
time period of one month as of the receipt of the documents by the receiving agency is met, 
but the process altogether took two and a half months.  

As shown above, the service was successful but it involved a lot of communication through 
post  between  the  relevant  authorities.  If  the  service  had  not  been  successful,  i.e.  if  the 
addressee failed to go to the post office to pick up the document, then the transmitting agency 
would have to attempt the cycle all over again either through post or through another method. 
It can also be seen from above that the delay is largely due to the paper-based communication 
and  that  agencies  rely  on  postal  services  for  communication  rather  than  other  more  rapid 
means (e.g. email).  

Hypothetical case 2: Successful service by a bailiff  
(Article 15, direct service) 

A lawyer in Member State A (MS A), entrusted by the national law with the duty to serve 
the document in legal proceedings, wishes to serve a writ of summons for their client on an 

47 

 
 
 
addressee resident in Member State B (MS B – a State which accepts direct service under 
Art. 15).  
Day 1 – 21: the documents are being translated in the official language of the Member State 
addressed by a professional translation company 
Day 22: The lawyer prepares the 'request for service' form, identifies the competent judicial 
officer  in  MS  B  on  the  e-Justice  Portal,  and  sends  the  package  to  the  bailiff  in  MS  B 
through registered post.  
Day 23- 30: the document is on its way to MS B. 
Day  30:  the  document  is  received  by  the  bailiff  and  an  ‘Acknowledgment  of  Receipt’  is 
sent to the MS A transmitting agency. He indicates the bank account number to which he 
expects the payment by the applicant of the flat rate fee for his intervention.  
Day 33: The costs of the service of the judicial officer arrive on the bank account 
Day 34: The document is served personally by the bailiff and service is accepted. 
Day  35:  A  certificate  of  service  is  sent  by  the  MS  B  bailiff  to  the  lawyer  (as  applicant) 
transmitting agency with a copy of the served document. 

Result: 
Successful service which required much less time than the use case 1, but which cost more 
to the applicant. 

The examples demonstrate the effect that different methods of service (and also the national 
set-up) have on the outcome of the delivery. In the second example the bailiff was able to deal 
much more efficiently with the request compared with the central body and receiving agency 
in  the  first  example  because  he  is  specialized  in  service  of  documents,  carries  out  his  work 
under strict liability rules and in exchange for a fee contributing to his private undertaking. On 
the  other  hand,  courts  have  a  much  larger  organisation  and  administrative  processes  to  get 
through and by the time the document is reached by the relevant administrative staff a couple 
of days may have passed already.  

Whereas  the  above  examples  illustrated  the  (near)  best  case  scenario  for  two  methods  of 
service,  many  costs  are  experienced  due  to  complications  in  the  process.  A  number  of 
practical examples of delays due to complications in the Regulation are described below. 

Illustration of delays when complication arise in the hypothetical cases (1 and 2) 
Address  unknown:  In  the  best  case  scenario,  the  address  of  the  intended  recipient of  the 
document  to  be  served  is  known  upfront.  However,  this  is  not  always  the  case,  or  even 
when there is information on the address at the disposal of the applicant, this information 
may  be  proven  incorrect  or  obsolete.  When  this  occurs,  the  sender  is  unsure  of  any 
channels available for clarifying the address of the person in the Member State addressed. 
This can play out differently in the two hypothetical described above: 

 

In hypothetical case 1, the request may be sent to the receiving agency with the 
expectation  that  some  efforts  may  be  undertaken  on  their  side  to  verify  the 
address.  However,  the  receiving  agency  may  simply  regard  this  request  as  being 
outside the Regulation (or in case of an erroneous address as not deliverable) and 
return  the  request  to  the  transmitting  agency without  guidance  on  the  potential 

48 

 
 
 
 

ways the address could be sought. By the time the communication is received by 
the transmitting Member State, a number of weeks may have passed due to the 
use  of  regular  mail.  Additional  time  is  consumed  on  first  trying  to  establish 
whether any channels exist for clarifying the address and then for any subsequent 
requests (e.g. to a domicile registry). 
In hypothetical case 2, the bailiff receiving the request may regard that it is his/her 
obligation  to  verify  the  address  of  the  recipient.  In  this  case,  although  the  bailiff 
may spend some time conducting the necessary research, the delays are less than 
if the same research would have been attempted by the transmitting agency since 
the  bailiff  has  knowledge  of  the  procedures  and  channels  in  their  own  Member 
State.  Additional  costs  are  also  avoided  with  less  communication  between  the 
agencies. 

Language  requirements:  In  the  best  case  scenario,  the  language  of  the  document  to  be 
served is clearly understood by the addressee, is written in an official language of the place 
of  service  or  is  accompanied  by  similar  translations  and  such  translations  are  not 
challenged  by  the  recipient  as  to  the  extent  to  which  they  are  provided  or  their  quality. 
Difficulties  associated  with  language  affect  both  hypothetical  cases  in  the  same  way.  In 
other words, the method of service does not prevent the potential refusal of the document 
by the addressee on the basis that the language is not appropriate.  
When a document is refused, the addressee must indicate the language that they understand 
on the refusal form. Although this issue is easily remedied by provision of the document in 
the  indicated  language,  it  can  cause  significant  delays  since  the  service  procedure  is 
attempted  again.  As  illustrated  by  hypothetical  case  1,  service  of  the  document  through 
registered post can take up to 70 days or more to complete.  
Insufficient filling out of the acknowledgment of receipt: Apart from the two methods of 
service  explained  in  hypothetical  cases  above,  the  service  of  documents  can  also  be 
performed directly by registered post (Article 14 of the Regulation). In practical terms, the 
time frame for such service would be expected to be similar to that of hypothetical case 2.  
In postal services, the annex forms are not used and the quality of the acknowledgement of 
receipt of the document may differ depending on the postal service provider. In the worst 
case scenario, the service of post is rendered ineffective because the information contained 
in the acknowledgment of receipt is not sufficient to establish that service has been made or 
under  which  circumstances.  The  mail  carrier  for  example  may  not  provide  the  date  of 
service  clearly  or  the  identity,  the  signature  of  the  recipient  or  his/her  relationship  to  the 
addressee is unclear. In this case, the service of the document would have to be attempted 
again, resulting in potentially a time delay of up to 2 months. 

Overall, the typical time taken for serving a document through the Regulation is difficult to 
estimate.  Some  interviewed  stakeholders  informed  the  economic  contractor  that  in  some 
Member  States  it  may  take  just  days  while  in  others  it  can  take  months.  Interviewees  also 
noted the efficiency of service with neighbouring countries compared with countries that are 
further away geographically. It was also highlighted that the efficiency of service seems to be 
improving  year-by-year  with  the  increased  use  of  the  Regulation  and  understanding  of  the 
different Member State procedures.  

49 

 
 
It was noted by many stakeholders (and confirmed under the evaluation of Relevance below), 
that  the  time  and  costs  for  service  of  documents  are  ultimately  hindered  by  the  non-
exploitation of opportunities provided by developments in information technology (IT). As it 
currently stands, the Regulation does not contain any provisions which recognize or facilitate 
the use of (direct) cross-border electronic service of documents, whereas the transmission of 
the documents through electronic channels between the designated agencies is allowed by the 
Regulation, but is not applied in the practice. It is thus unclear for stakeholders whether email 
or other IT solutions could be used for the service of documents in cross-border proceedings.  

5.3.  Relevance 

Evidence suggests that the Regulation adopted in 2007 is relevant to the stakeholders 
needs and is still relevant today. However, key emerging trends, such as digitisation, 
pose challenges to the relevance of the Regulation, which could no longer be regarded 
future-proof. 

The  objective  of  a  “relevance  analysis”  is  to  verify  if  there  is  any  mismatch  between  the 
objectives  of the intervention  and the (current) needs or problems. Therefore, to discuss the 
relevance of the Regulation, one should examine distinct aspects: 

  To what extent the Regulation corresponds to real life stakeholders’ needs; 
  To  what  extent  the  Regulation  in  force  is  still  relevant  in  2018,  11  years  after  its 
adoption and based on possible evolution of stakeholders’ needs in the meantime. 

As  far  as  the  needs  of  the  stakeholders  are  concerned,  there  are  two  groups:  citizens  and 
businesses on the one hand; and legal practitioners (i.e. transmitting and receiving agencies, 
lawyers, courts) on the other hand. 

Legal practitioners pointed out during our national interviews that they require a streamlined 
process where the efficient and speedy transmission of judicial and extrajudicial documents is 
ensured. The service of documents needs, in addition, to present the necessary level of legal 
certainty. Lastly, legal practitioners need fluent communication between the Member States in 
order to ensure a smooth judicial cooperation and, hence, a successful cross-border service of 
documents. Without the Regulation, legal practitioners had to rely on bilateral or multilateral 
agreements  (i.e.  the  Hague  Conventions198).  The  situation  was  therefore  fragmented  as  the 
service of documents to another Member State varied from one Member States to another199.  

198  
199 Austria and Malta until recently were not yet members to the 1965 Hague Convention (see Council Decision 
(EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede 
to,  the  Hague  Convention  of  15  November  1965  on  the  Service  Abroad  of  Judicial  and  Extrajudicial 
Documents in Civil or Commercial Matters, in the interest of the European Union). 

50 

 
 
 
 
                                                            
Two  different  kinds  of  problem  can  arise  when  the  needs  of  legal  practitioners  previously 
explained are not properly addressed. First, the unsuccessfully executed service of documents 
can create delays, making the parties incurring undue costs. Second, the rights of the parties 
(in particular of the defence) might not be duly protected. This is particularly true regarding 
the expectation of the citizens and businesses that they are served in legal proceedings with 
documents drafted in a language they sufficiently understand. 

The needs and problems described above were the rationale for the establishment of rules on 
service  of  documents  in  EU  cross-border  proceedings  and  hence  the  adoption  of  the 
Regulation  in  force  as  an  EU  legislative intervention.  Overall,  stakeholders’  needs  have  not 
changed  significantly  over  the  past  years  of  implementation  of  the  Regulation.  On  the 
contrary, some of these needs have been even strengthened. For example, legal practitioners 
interviewed by the economic contractor have highlighted the need to increase the speed of the 
service of documents by making the electronic service of documents mandatory.  

Concerning the needs of businesses and citizens, lawyers communicated to the contactor that 
their clients’ main concern is still the protection of their rights. On one hand, the defendant’s 
rights seem to be properly ensured by the Regulation. According to the results of the online 
public consultation, the right of refusal under Article 8 functions properly according to 56% 
of  the  respondents  to  that  question  (out  of  78  respondents).  This  standard  of  satisfaction 
should,  however,  be  contrasted  with  the  results  of  the  2017  MPI  Study200,  which  measured 
during  its  data  collection  that  the  lack  of  or  the  error  in  the  service  of  the  documents 
instituting  the  proceedings  is  still  the  most  frequently  invoked  refusal  ground  under  the 
“Brussels I” Regulation against the cross-border recognition and enforcement of a judgment 
issued  in  another  Member  State201.  Furthermore,  there  is  evidence  pointing  at  the  practical 
problems  relating  to  the  provisions  of  the  Regulation  protecting  the  rights  of  the  defence 
(Articles 8 and 19). E.g. the MPI Study reported about the diverging practice in the Member 
States relating to the language of the documents to be sent: the transmitting agencies in some 
Member States apparently require or encourage claimants to provide a sort of “precautionary” 
translation of the relevant documents, in order to prevent the defendant from the possibility to 
invoke Article 8.202 Although it might seem practical in terms of avoiding unnecessary delays, 
this practice goes against the very objective of the Regulation of not requiring translations by 
default. On the other hand, the national stakeholders interviewed by the economic contractor, 
pointed  out  that  some  defendants  actually  abuse  of  their  right  of  refusal  to  accept  the 
document under Article 8 of the Regulation, stating their lack of “sufficient” knowledge of the 
language of the document. This situation entails delays for the procedure. The Regulation has, 
however,  improved  this  situation  as  the  defendant  is  now  required  to  specifically  mention 
which language he/she understands in the form of Annex II. In the context of the protection 
against the issuance and the effects of default judgments, the 2017 MPI Study referred to the 

200  
201 MPI p. 60. 
202 MPI p. 55 

51 

 
 
                                                            
results  of  its  data  collection,  according  to  which  there  is  a  clear  need  for  a  common  set  of 
rules regarding essential procedural aspects.203   

In terms of achievement of the Regulation’s general objectives, the analysis of effectiveness 
proves the importance which the Regulation had in improving and expediting the transmission 
of judicial and extrajudicial documents between the Member States of the EU for purposes of 
service abroad, as well as in allowing for direct methods of cross-border service. Moreover, 
although there is still room for improvement, stakeholders agreed that the Regulation has been 
key to ensuring the successful service of documents in cross-border proceedings. 

In  particular,  the  scope  of  the  Regulation  was  identified  as  an  element  to  be  revised. 
According  to  art.  1  (2),  the  Regulation  only  applies  when  the  address  of  the  person  to  be 
served is known. This scope raises some difficulties as it might be the case that the address is 
not  known,  or  the  information  on  the  address  at  the  disposal  of  the  applicant  proves  to  be 
incorrect or obsolete. Although for internal situations most of the legislations of the Member 
States establish the duty of the serving authority to make specific efforts in order to locate the 
domicile  of  the  addressee,  apparently,  such  an  effort  is  not  done  when  the  Regulation  is 
applied.204 The legal landscape of available tools and measures is very diverse in the different 
Member States and their efficacy is doubtful, as the agencies face real challenges to determine 
the  address.  For  example,  in  a  few  Member  States,  such  as  in  France  there  is  no  central 
domicile  registry  for  natural  persons.  Therefore,  when  a  person  moves  out  and  the  new 
address is not communicated to the city hall, French bailiffs do not have the means to reach 
this  person.  The  vast  majority  of  stakeholders  (78%  out  of  126  respondents  to  the  question 
concerned)  partaking  in  the  online  public  consultation  actually  agreed  that  the  Regulation 
should  ensure  a  greater  level  of  transparency  in  terms  of  finding  the  whereabouts  of  the 
addressee. As a solution, some national stakeholders suggested to centralize this information 
in the e-Justice Portal. This centralization of information in the e-Justice Portal would only be 
possible if such data is publicly available in the Member State of origin.  

The  Regulation  hence  seems  to  still  be  relevant  to  address  the  real  life  needs  of  legal 
practitioners,  citizens  and  businesses.  However,  the  analysis  of  the  available  data  suggests, 
that there might be a number of challenges for the future, which could hamper the capacity of 
the Regulation to respond to emerging and future needs of stakeholders, as detailed below. 

Although  the  most  common  methods  currently  used  are  the  transmitting/receiving  agencies, 
and the postal services, the stakeholders interviewed pointed out that the Regulation does not 
cover sufficiently the transmission and the service of documents through electronic channels. 
A  recent  survey  carried  out  in  the  context  of  the  European  Judicial  Network  (civil)  on  the 
cross-border  electronic  service  under  the  Regulation  showed  that  incompatible  legal 
requirements  and  the  lack  of  technical  interoperability  make  it  practically  impossible  that  a 

203 MPI p. 174. 
204  see evidence. MPI p. 56. 

52 

 
 
                                                            
document be delivered electronically from the applicant in one Member State to the recipient 
in another Member State. In line with this, also the electronic communication and exchange of 
documents  remains  a  rare  exception  in  the  interactions  between  the  designated  transmitting 
and  receiving  agencies  under  the  Regulation.205  Electronic  service  of  documents  is  an 
emerging  method  in  civil  proceedings  in  the  Member  States,  national  procedural  codes  are 
opening up more and more towards this possibility (although the types of cases and the circle 
of  addressee  eligible  for  this  method  of  service  varies  hugely)206.  However  the  Regulation 
does  not  mention  electronic  service  as  a  possible  method  for  the  service  of  documents  in 
cross-border proceedings, and therefore falls behind those national systems already including 
such method. Based on a comparative legal analysis of the relevant laws and practices of the 
Member  States,  ICT  can  actually  enable  courts  to  provide  “more  effective,  quicker  and 
cheaper” services207. In addition, as mentioned during the fieldwork interviews carried out by 
the  economic  contractor,  the  electronic  service  of  documents  is  a  promising  method  to  be 
developed  and  adopted  in  the  future.  Most  of  the  Member  States  are  actually  keen  on 
involving IT solutions in the service of documents, expressing their interest in such methods. 
As  an  example,  the  e-CODEX  project  is  aiming  at  improving  cross-border  access  and 
businesses  to  legal  means  in  Europe208.  For  this  purpose,  e-CODEX  has  selected  four 
electronic  services:  European  Payment  Order,  European  Small  Claim  procedure,  European 
Arrest  Warrant,  and  Secure  cross-border  exchange  of  sensitive  data,  but  it  is  currently 
focusing  on  the  first  two  mentioned.  The  service  of  document  is  an  additional  electronic 
service  to  which  e-CODEX  could  be  applied.  The  IT  platform  for  exchange  of  electronic 
documents  to  be  served  is  estimated  to  be  ready  by  2021209.  The  electronic  service  of 
documents  could  address  and  reduce  some  problems  faced  today,  such  as  the  difficulties  to 
find the whereabouts or the need to cope with the urgency in some legal proceedings. 

Also  at  the  EU  level,  the  increased  use  of  digital  solutions  (through  e.g.  eID  and  trust 
services) is encouraged and is being explored in all types of sectors and business processes, 
including  in  legal  proceedings210.  The  eIDAS  Regulation  has  laid  down  a  framework  of 
standards  that  ensures  the  mutual  recognition  of  notified  Member  State  electronic 

205  See: from results of the QE! 
206 A good summary of the state of play in 2016 in the Member States can be found in the Study containing a 

comparative legal analysis of laws and practices of the Member States on service of document (launched by 
the Commission, carried out by a consortium composed of University Firenze, University Uppsala and DMI, 
published in November 2016), Available at:  
http://ec.europa.eu/justice/civil/files/studies/service_docs_en.pdf.,    

207  DMI Associates, University of Florence, University of Uppsala. (2016, October 5),  Study on the service of 
documents – Comparative legal analysis of the relevant laws and practices of the Member States, available 
at: http://ec.europa.eu/justice/civil/files/studies/service_docs_en.pdf 

208 e-CODEX has been developed by 21 EU Member States with the participation of other countries/territories 
and  organisations:  Austria, Belgium,  Croatia,  Czech  Republic, Estonia,  Finland,  France,  Germany,  Greece, 
Hungary, Ireland, Italy, Jersey, Latvia, Lithuania, Malta, Netherlands, Norway, Poland, Portugal, Romania, 
Spain, Turkey, United Kingdom, CCBE and CNUE.     

209 Fieldwork interviews. 
210 For example, Deloitte is currently conducting a study for DG CONNECT which promotes the use of eID and 

Trust Services (as defined in the eIDAS Regulation) among SMEs, including the legal sector. 

53 

 
 
                                                            
identification  (eID)  schemes  across  the  EU  public  sector  and  recognition  of  qualified  status 
given  to  trust  services  (eTimeStamp,  eSeal,  Electronic  Registered  Delivery  Service, 
eSignature).  This  framework  allows  for  interoperability  of  more  digital  solutions  and  thus 
opens the door for potential growth in use of eID and trust services (e.g. in combination with 
e-CODEX) to enhance the service of documents in cross-border proceedings. 

5.4.  Coherence 

The Regulation is largely coherent internally, as well as with other EU policies, which 
have similar objectives, and national law. Minor problems could be identified, though. 

The  overall  coherence  of  the  Regulation  should  be  assessed  both  internally,  and  externally. 
For the internal coherence, the consistency of the different provisions within the Regulation 
was  analysed.  As  far  as  the  external  coherence  is  concerned,  it  was  assessed  how  well  the 
Regulation operates with other legal instruments (i.e. with respect to the national legislations 
and the technical developments carried out recently in Member States; and to other relevant 
EU level legislation).  

In addition to the internal and external coherence, the study team has identified some general 
issues related to the scope of the Regulation. The scope rationae materiae of the Regulation, 
as  defined  by  Article  1(1),  applies  to  civil  and  commercial  matters.  Nevertheless,  some 
interviewees  pointed  out  the  difficulty  to  determine  in  some  cases  whether  the  Regulation 
applies. This problem arises in fiscal or criminal cases with a civil or commercial dimension. 
In  addition,  some  participants  to  the  online  survey  pointed  out  the  difficulty  to  identify  the 
nature  of  extra-judicial  documents  as  the  definition  provided  by  the  Regulation  is  not  clear 
enough. 

5.4.1.  Internal coherence 

The  assessment  shows  that  the  internal  coherence  of  the  Regulation  is  robust. 
Nonetheless,  it  can  still  be  improved  by  addressing  some  particular  internal 
inconsistencies. 

The  majority  of  stakeholders  interviewed  consider  that  the  provisions  of  the  Regulation  are 
generally clear. This was also supported by the responses the contractor received to its online 
survey.  However,  some  stakeholders  interviewed  during  the  fieldwork  pointed  out  some 
inconsistencies of the Regulation.  

First, as established in Article 8 of the Regulation, the receiving agency needs to explain to 
the addressee, using the standard form set out in Annex II, his/her right to refuse to accept the 
document  to  be  served.  The  same  article  also  explains  when  this  right  of  refusal  can  be 

54 

 
 
 
invoked. If the document to be served has been drafted in or translated to one of the official 
languages of the receiving Member State, there is no such right for refusal211. This is a clear 
conclusion  of  the  grammatical  interpretation  of  the  relevant  provision.  Therefore,  the 
addressee has no right of refusal when the document is provided in the official language of the 
Member State. In that case, some stakeholders challenged the need to provide Annex II in all 
official  languages  to  the  addressee.  This  contradiction  gained  on  relevance  after  the  CJEU 
confirmed that the provision of information in the standard form (Annex II) is obligatory also 
in cases where the document to be served is in the language of the Member State addressed, 
i.e.  where  the  addressee cannot validly  refuse service (Article 8(1)(b)).212 In  practical terms, 
attaching  the  standard  form  in  such  circumstances  might  only  mislead  the  addressees  into 
thinking that they do have the right to refuse.213  

Second, there is a lack of clarity concerning the date of the refusal. As stated in Article 8, the 
addressee  is  entitled  to  refuse  to  accept  the  document  to  be  served  either  at  the  time  of  the 
service  or  by  returning  the  document  to  the  receiving  agency  within  one  week.  Some 
interviewees  highlighted  that  the  Regulation  is  not  sufficiently  clear  concerning  the  date  of 
such refusal. It is not actually mentioned which date should be taken into account: the date the 
document is sent back to the receiving agency, or the date when the document arrives.  

Third,  still  with  regard  to  the  procedure  on  exercising  the  right  of  refusal  in  Article  8,  the 
addressee is required to send back the document if he/she refuses in writing to accept it. There 
were reports that the originals are often not sent back by the addressees, which may lead to an 
ambiguity  with  regard  to  the  validity  of  the  refusal,  even  if  the  written  declaration  of  the 
addressee  represents  a  clear  intention  of  that  they.  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.214 

5.4.2.  External coherence 

The  overall  external  coherence  of  the  Regulation  is  ensured  with  both  national  and 
EU measures. Nevertheless, as shown more alignment and synergies could be achieved 
by adjusting the provision of the Regulation. 

5.4.2.1. General Treaty objectives 

The objectives of the Regulation are coherent with the EU Treaty framework.  

211 OGH (AT) 01.03.2012 - 1Ob218/11g, unalex AT-789. 
212 In C-519/13, Alpha Bank Cyprus the CJEU held that the receiving agency is required, in all circumstances 
and without it having a margin of discretion in that regard, to inform the addressee of a document of his right 
to refuse to accept that document, by using systematically for that purpose the standard form set out in Annex 
II to the Regulation.  

213 COM(2013) 858 final, p. 11. 
214 COM/2013/0858 final, p. 11.  

55 

 
 
                                                            
The Regulation is part of the EU framework on judicial cooperation in civil and commercial 
matters  and  contributes  to  the  EU  objective  to  establish  an  area  of  freedom,  security  and 
justice, as defined in Article 3(2) of the Treaty on European Union (TEU) and Article 67 of 
the  Treaty  on  the  Functioning  of  the  European Union  (TFEU).  In  this  context,  the EU  is  to 
develop judicial  cooperation  in  civil  and  commercial  matters  with  cross-border  implications 
based  on  the  principle  of  mutual  recognition  of  judgments  and  decisions,  as  stipulated  in 
Article 81 TFEU. Furthermore, the Regulation contributes to the EU objective of establishing 
an internal market (Article 26 TFEU).  

The Regulation contributes to the area of freedom, security and justice and the functioning of 
the  internal  market  by  facilitating  the  service  of  documents  in  the  context  of  cross-border 
legal  proceedings.  Nevertheless,  as  explained  in  the  effectiveness  section,  some  Member 
States  are  not  accepting  the  direct  service  of  document  under  Article  15  of  this  Regulation, 
despite the fact that such method is foreseen in their national legal framework215. This could 
be perceived as a barrier to the Internal Market as the Regulation is hindering the access of 
parties  involved  in  a  cross-border  proceeding  to  services  that  are  available  in  the  Member 
States.  

5.4.2.2. Relevant EU instruments in the field of judicial cooperation 

The external coherence with other EU level legislation refers to an analysis of how well does 
this  Regulation  operate  with  other  legal  instruments,  including  an  analysis  of  potential 
overlaps, contradictions and synergies. The assessment concerns the relation of the Regulation 
with the: 

  Regulation on Taking of Evidence216; 
  Brussels Ia Regulation217 
  Brussels IIa Regulation218; 
  Maintenance Regulation219; 
  Succession Regulation220; 

215  E.g.  for  England  and  Wales,  the  UK  communicated  that  it  is  opposed  to  the  possibility  of  direct  service 
provided  for  by  Article  15(1),  although  it  is  established  practice  there  to  have  documents  served  in  legal 
proceedings directly by solicitors.  

216 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member 
States  in  the  taking  of  evidence  in  civil  and  commercial  matters,  http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32001R1206&from=en 

217  Regulation  (EU)  No  1215/2012  of  the  European  Parliament  and  of  the  Council  of  12  December  2012  on 
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters,  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:351:0001:0032:en:PDF 

218  Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the  recognition 
and  enforcement  of  judgement  in  matrimonial  matters  and  the  matters  of  parental  responsibility,  repealing 
http://eur-
Regulation 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:338:0001:0029:EN:PDF 

1347/2000, 

(EC) 

No 

219  Council  Regulation  (EC)  No  4/2009 of 18  December  2008  on  jurisdiction,  applicable  law,  recognition  and 
enforcement  of  decisions  and  cooperation  in  matters  relating  to  maintenance  obligations,    http://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R0004&from=EN 

56 

 
 
                                                            
 
Insolvency Proceedings Regulation221; 

 
  Matrimonial Property Regulation and the Regulation on the Property Consequences of 

Registered Partnerships222; 
  Small Claims Regulation223; 
  European Enforcement Order for uncontested claims224; 
  European Payment Order (EPO) Regulation 225; 
  General Data Protection Regulation226. 

An  overview  of  the  most  relevant  instruments or  policies227,  their  main  contents,  as well  as 
their relationship to the Regulation including potential difficulties is provided in the following 
table. 

220 Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and 
acceptance  and  enforcement  of  authentic  instruments  in  matters  of  succession  and  on  the  creation  of  a 
European 
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32012R0650&from=EN 

Succession, 

Certificate 

of 

221Regulation 

(EU) 

2015/848 

on 

insolvency 

proceedings, 

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32015R0848&from=EN 

222  Council  Regulation  (EU)  2016/1103  of  24  June  2016  implementing  enhanced  cooperation  in  the  area  of 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions  in  matters  of  matrimonial 
property 
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32016R1103&from=EN;  

regimes, 

a 

of 

Council  Regulation  (EU)  2016/1104  of  24  June  2016  implementing  enhanced  cooperation  in  the  area  of 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions  in  matters  of  the  property 
consequences 
http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.L_.2016.183.01.0030.01.ENG  

partnerships, 

registered 

223  Council  Regulation  (EC)  No  861/2007  of  11  July  2007  establishing  a  European  Small  Claims  Procedure, 
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007R0861&from=EN;  and  Regulation 
(EU) 2015/2421 of the European parliament and of the Council of 16 December 2015 amending Regulation 
(EC)  No  861/2007  establishing  a  European  Small  Claims  Procedure  and  Regulation  (EC)  No  1896/2006 
creating 
http://eur-lex.europa.eu/legal-
payment 
content/EN/TXT/PDF/?uri=CELEX:32015R2421&from=EN 

procedure, 

European 

order 

for 

224  Regulation  (EC)  No  805/2004  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  creating  a 
http://eur-lex.europa.eu/legal-

uncontested 

claims, 

European 
content/EN/TXT/PDF/?uri=CELEX:32004R0805&from=EN 

Enforcement 

Order 

for 

225  Council  Regulation  (EC)  NO  1896/2006  of  12  December  2006  creating  a  European  order  for  payment 
procedure,  http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006R1896&from=EN,  ;  and 
Regulation (EU) 2015/2421 of the European parliament and of the Council of 16 December 2015 amending 
Regulation  (EC)  No  861/2007  establishing  a  European  Small  Claims  Procedure  and  Regulation  (EC)  No 
1896/2006 
for  payment  procedure,  http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32015R2421&from=EN 

a  European  order 

creating 

226 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection 
of natural persons with regard to the processing of personal data and on the free movement of such data, and 
repealing 
http://eur-lex.europa.eu/legal-
Directive 
content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN 

95/46/EC, 

227 The list is not exhaustive. The focus is on the most relevant instruments, in particular those that have direct 

links or in relation to which problems have arisen.  

57 

 
 
                                                                                                                                                                                          
Table 21: EU instruments in the field of judicial cooperation and their relationship to the Service Regulation and others 

Instrument 
Regulation 
Taking of Evidence 

on 

Main contents  
-  Common  rules  on  the  taking  of  evidence 
in  another  Member  States  in  civil  and 
commercial matters.  

Relationship  
-  The  two  Regulations  have  the  same  aim  and  are  complementary. 
Together  they  constitute  the  EU  legal  framework  for  international 
mutual  judicial  assistance  in  civil  and  commercial  matters.  Both 
legal  instruments  are  applied  in  proceedings  in  cross-border 
proceedings  in  civil  or  commercial  matters,  but  cover  different 
procedural aspects. 

Brussels 
Regulation 

Ia 

Brussels 
Regulation 

IIa 

Maintenance 
Regulation 

rules 

international 
in  civil  and  commercial 

on 

-  Harmonised 
jurisdiction 
matters.  
-  Recognition 

and 

of 
judgments  rendered  in  another  Member 
States. 

enforcement 

-  Harmonised 

rules 

international 
jurisdiction  in  family  matters  (in  divorce 
proceedings  and  proceedings  related  to 
parental responsibility).  

on 

-  Recognition 

and 

enforcement 

of 

judgments falling in its scope. 

-  Harmonised 
jurisdiction 
maintenance obligations.  

rules 
on 
in  matters 

international 
to 
relating 

-  Recognition 
judgments. 

and 

enforcement 

of 

58 

-  Complements 

the  Regulation  on  Service  of  Documents 

in 
proceedings  concerning  civil  and  commercial  matters  (excluding 
family matters). 
-  Refers in Article 28(3) to Article 19 of the Regulation when the 
defendant  does  not  enter  an  appearance  and  the  document  has 
to be transmitted from one Member State to another. 

-  No difficulties identified. 
-  Complements 

the  Regulation  on  Service  of  Documents 

in 

proceedings concerning family matters:  
-  Refers in Article 18(2) to Article 19 of the Regulation when the 
defendant does not enter an appearance and the document has to 
be transmitted from one Member State to another. 

-  Brussels  IIa  Regulation  has  not  been  updated,  and  refers  to  the 
previous Regulation No 1348/2000. The Brussels IIa Regulation is 
being revised currently by the EU co-legislators.  

-  Complements 

the  Regulation  on  Service  of  Documents 

in 

proceedings concerning maintenance obligations. 
-  Refers in Article 11(2) to Article 19 of the Regulation when the 
defendant  does  not  enter  an  appearance  and  a  document 
instituting the proceeding (or an equivalent document) has to be 
transmitted from one Member State to another. 

 
 
 
 
Instrument 

Main contents  

Succession 
Regulation 

-  Harmonised 

international 
jurisdiction  for  matters  of  succession  to 
the estates of deceased persons. 

rules 

on 

-  Harmonised 

rules 

determining 

the 

applicable law in these cases.  

-  Recognition 

of 
judgments  and  decisions  taken  in  these 
cases. 

enforcement 

and 

-  Introduction of the European Certificate of 
Succession  with  uniform  pan-European 
legal effects.  

-  Harmonised  rules  aiming  at  facilitating 
debt  recovery  in  cross-border  insolvency 
proceedings 

Insolvency 
Proceedings 
Regulation 

Matrimonial 
Property Regulation; 
Registered 
Partnership 
Regulation 

-  Common  procedural 

rules  aiming  at 
determining  jurisdiction,  applicable  law, 
as well as the recognition and enforcement 
of  judgments  for  matrimonial  property 
regimes and the property consequences of 
registered partnerships. 

Relationship  
-  States that the Central Authorities designated under this Regulation 
are in charge of the facilitation of the service of documents (Article 
51). However, it explicitly states that such tasks should be carried 
out  without  prejudice  (Article  51(2)(j)),  clarifying  thereby  the 
relationship between the two instruments.  

-  Complement  the  Regulation  on  Service  of  Documents  in  the 

proceedings these instruments apply to.  
-  The Succession and Will Regulation states that Article 19 of the 
Regulation  on  Service  of  Documents  applies  when  a  document 
instituting the proceeding (or an equivalent document) has to be 
transmitted from one Member State to another. 

-  No issues have been identified.  

-  The Insolvency Regulation clearly mentions that the Regulation on 
Service of Documents does not apply when creditors are informed 
about  the  opening  of  insolvency  proceedings  relating  to  their 
debtor's assets (recital 64). 
-  No issues have been identified. 
-  Both  Regulations  refer  in  their  Article  16(2)  to  Article  19  of  the 
Regulation on  Service of  Documents  when  a  document  instituting 
the  proceeding  (or  an  equivalent  document)  has  to  be  transmitted 
from one Member State to another. 

-  No issues have been identified. 

Small 
Regulation 

claims 

-  Common  procedural  rules  for  simplified 
and  accelerated  cross-border  litigation  in 

-  This Regulation also contains rules on the service of documents.  
-  The provisions, however, differ from and complement those in the 

59 

 
 
Instrument 

Main contents  

Relationship  

civil  and  commercial  disputes  concerning 
small value claims.  

European 
Enforcement  Order 
Regulation 

accelerated 
of 

recognition 
judgments, 

-  Common  procedural  rules  for  simplified 
and 
and 
enforcement 
court 
settlements  and  authentic  instruments  on 
uncontested claims (including also default 
in  civil  and  commercial 
judgments) 
disputes. 

European  Payment 
Order Regulation 

-  Creates  a  uniform  procedure  to  obtain  a 
European Payment Order in order to speed 
up  and  reduce  the  costs  of  litigation  in 

60 

Regulation  on  Service  of  Documents.  They  do  not  aim  to  replace 
the rules on this  Regulation, but to  clarify the eligible methods of 
service  of  documents  for  the  procedure  under  the  Small  Claims 
Regulation  and  to  set  a  hierarchy  between  those  methods.  For 
example,  the  first  method  for  service  of  documents  is  through 
postal  services  (Article  13  (1)).  If  this  method  is  not  possible,  the 
service of documents will be conducted on the basis of the Articles 
13  and  14  of  the  European  Enforcement  Order  for  uncontested 
claims (see below). 

-  Its recast Regulation (Regulation (EU) 2015/2421 of 16 December 
2015,  applicable  since  14  July  2017),  provides  in  its  new  Article 
13(b) detailed rules on electronic service.  

-  No issues have been reported by any of the interviewees. However, 
it was highlighted that attention should  be paid to  the relationship 
between  the  Regulation  on  Service  of  Documents  and  the  Small 
Claims Regulation.  

-  The  European  Enforcement  Order 

for  uncontested  claims 
Regulation  lists  the  eligible  methods  of  service  of  documents  as 
minimum  standards  for  the  uncontested  claims.  Only  those 
judgments, settlements or authentic instruments may be attested as 
a  European  Enforcement  Order  with  regard  to  which  the  service 
was  done  in  line  with  these  minimum  standards.  The  Regulation 
lists  two  groups  of  admissible  methods  of  service:  service  with  a 
proof of receipt (Article 13) and service without proof of receipt by 
the debtor (Article 14). 

-  No issues have been reported. 
-  EPO Regulation takes the same minimal standards as the previous 

Regulation.   

-  No issues have been reported. 

 
 
Instrument 

Main contents  

Relationship  

cross-border cases concerning uncontested 
pecuniary claims. 

General 
Protection 
Regulation 

Data 

-  Harmonisation of data privacy laws across 
Europe,  protecting  EU  citizens  data 
privacy 
the  way 
organizations approach data privacy. 

reshaping 

and 

-  The  lack  of  rules  concerning  the  protection  of  data  according  to 
GDPR is another issue that could raise some concerns amongst the 
stakeholders.  While  the  Regulation  on  Service  of  Documents  is 
aligned  with  the  Directive  95/46/EC228,  the  GDPR  (which  came 
into  force  in  May  2016)  will  apply  from  May  2018.  Some 
stakeholders  shared  their  concern  during  our  fieldwork  interviews 
with Deloitte stating that the Regulation on Service of Documents 
is not aligned with the provisions of GDPR and hence the new data 
protection standards. 

Source: Deloitte elaboration 

228 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection if individuals with regard to the processing of personal data and on 

the free movement of such data, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L0046&from=en 

61 

 
 
                                                            
5.4.2.3. National law 

The  Regulation  is  adopted  in  line  with  the  principle  of  proportionality  and  does  not 
interfere with the diverging national regimes of service of documents of the various legal 
systems. Although called as Regulation "on service of documents", in fact the main focus 
of  its  rules  is  to  establish  uniform  channels  for  transmission  of  documents  from  one 
Member  State  to  another  for  purposes  of  serving  those  documents  there.  There  is  only 
one method of service acknowledged in the Regulation which actually defines the service 
of the document (with uniform legal conditions and consequences) and does not subject 
the procedure of delivery at domestic level or the determination of the legal effects of the 
delivery  to  the  national  laws  of  the  Member  States:  Article  14  on  the  postal  service 
introduces a harmonised method of cross-border service of documents. This means that a 
service performed through postal channels to another Member State shall be considered 
valid if it complies with the requirements in Article 14 and Member States may not apply 
technical or procedural formalities of their own laws while assessing the validity of the 
delivery. 

According to  Article  7(1)  of  the  Regulation  the  document  shall  be  served,  as  a  general 
rule, in accordance with the Member State addressed. Nevertheless, there is a possibility 
that  the  transmitting  agency  requests  to  have  the  service  performed  by  a  particular 
method  (the  usual  requests  in  this  context  contain  that  the  document  is  served  to  the 
person  of  the  recipient).  Theoretically,  it  may  happen  that  such  requests  are  not 
compatible  with  the  national  law  of  the  receiving  Member  State.  The  economic 
contractor  received,  nevertheless,  very  little  indication  via  its  on-line  survey  of  this 
potentially  being  a  problem  in  practice.  This  conclusion  was  also  corroborated  by  the 
case  law  assessment,  as  very  few  cases  concern  this  issue229.  Nevertheless,  the 
stakeholders  interviewed  mentioned  that  more  clarity  in  that  respect  is  necessary  to 
ensure  that  the  transmitting  agency  is  requesting  a  viable  option  for  the  Member  State 
concerned.  

In general terms, the service of documents is a procedure based on systems that require 
formal  service  of  documents  through  judicial  officers  (or  similar  authorities).  The 
Regulation  is  not  naturally  coherent  with  Member  States  where  lawyers  or  other 
competent persons normally carry out the service of documents without the intervention 
of the courts (e.g. in most common law systems).  

As  previously  explained  under  the  relevance  criteria,  the  use  of  ICT  is  increasing  in 
national judicial proceedings. As stated by CEPEJ, “ICT is playing a growing role within 
230.  Electronic 
the 
communications are more often used, although paper-based communication (in particular 
between legal practitioners and courts) is still the general rule. Nevertheless, the national 

justice  service  provision” 

justice  administration  and 

the 

229 See for example: OGH (AT) 26.04.2005 - 4 Ob 60/05k, unalex AT-94. 
230 CEPEJ Studies No. 18: “European judicial systems – 2012 Edition”, p109. 

62 

 
 
                                                            
stakeholders  interviewed  during  the  fieldwork  have  expressed  their  willingness  to 
become more digital. In line with this, Member States are developing their own platforms 
either for national or cross-border service of documents. For the service of documents in 
cross-border proceedings, some Member States231 have joined their efforts in a common 
project, the e-Justice service of documents (EJS), aiming at developing an IT platform to 
judicial  officers232.  The 
secure  cross-border  exchange  of  documents  between 
stakeholders  interviewed  declared  that  further  alignment  between  the  Regulation  and 
these national technological developments is needed.  

The  Regulation  does  not  seem  to  raise  significant  coherence  issues.  The  flexibility 
provided by the Regulation offering different methods for the service of documents and 
the possibility to choose some or all of them, has enabled each Member State to choose 
their  methods  of  preference,  increasing  the  coherence  between  the  Regulation  and  the 
national  legal  systems  individually.  Nevertheless,  there  is  some  confusion  among  the 
transmitting agencies as the method to be applied in a given Member State is not always 
clear.  

5.4.2.4. The Hague Convention and other bilateral or multilateral agreements 

The  Regulation  is  coherent  with  the  Hague  Conventions  and  other  bilateral  or 
multilateral agreements. 

Article  20(1)  of  the  Regulation  stipulates  that  the  Regulation  prevails  over  bilateral  or 
multilateral agreements or arrangements of the Member States, in particular Article IV of 
the  Protocol  to  the  Brussels  Convention  of  1968  and  the  Hague  Convention  of  15 
November 1965. These continue to apply in cases outside the scope of the Regulation.  

In  addition,  Member  States  are  free  to  maintain  or  conclude  bilateral  or  multilateral 
agreements or arrangements to further facilitate the service of documents in cross-border 
civil  and  commercial  cases,  as  long  as  these  are  compatible  with  the  Regulation  (Art. 
20(2)). Based on the information available on the e-Justice portal, at least fifteen Member 
States have one or more agreements relating to service of documents in place.233  

No difficulties in relation to the coherence of the Regulation with the Hague Conventions 
and other bilateral or multilateral agreements have been identified based on the research 
and consultations carried out by this study. 

231  Six  Member  States  have  been  involved:  France  (leader),  Belgium,  Luxembourg,  The  Netherlands, 

Hungary, Estonia and one partner: The French Ministry of Justice. 

232 For more information, see: http://www.cehj.eu/en/activities/projects/e-Justice/ 
233 6 Member States indicated that they do not currently have such agreements in place, while 15 affirmed 
they have one or several bilateral agreements in place. For the other Member States, the information is 
not available on the English version of the e-Justice portal.  

63 

 
 
                                                            
5.5.  EU added value 

The  key  aspect  of  this  Regulation  is  the  establishment  of  a  common  set  of 
procedures to all Member States, which is essential to ensuring a successful service 
of documents in cross-border proceedings. Stakeholders agree on the added value of 
the Regulation and the positive effects achieved through this instrument could have 
not been achieved otherwise. Continued EU action is needed. 

In line with the Better Regulation Guidelines, the EU added value test is performed on 
the  basis  of  the  effectiveness  and  efficiency  evaluation  criteria.  The  following  section 
presents the main benefits of an EU intervention, and explain to what extent the positive 
effects could not have been achieved at national level. 

The  cross-border  dimension  of  judicial  cooperation  is  actually  the  reason  why  an  EU 
intervention  is  essential:  it  provides  the  necessary  coordination  to  ensure  a  uniform 
procedure  across  the  Member  States.  This  objective  could  not  have  been  sufficiently 
reached by the Member States on their own due to the cross-border dimension.  

Firstly, prior to the adoption of the Regulation, rules and procedures regarding the cross-
border service of documents varied across the EU Member States. Mainly regulated by 
international conventions and bilateral mutual legal assistance agreements, there was no 
uniform regime  throughout  the EU. One of the aims of the EU intervention was to put 
this  type  of  international  judicial  assistance  on  a  uniform  legal  basis,  thereby  reducing 
disparities  between  the  Member  States.  The  Regulation  has  brought  a  set  of  common 
procedures  for  the  service  of  documents  in  cross-border  proceedings.  Stakeholders 
interviewed  consider  this  EU  instrument  well-functioning  in  comparison  to  its 
predecessor  and  to  the  bilateral  and  multilateral  agreements.  It  was  pointed  out  that 
service of documents within the EU was described as more efficient and effective than in 
third countries, where the procedure is significantly longer as it involves more steps. In 
particular,  the  existence  of  standard  forms  common  to  all  EU  Member  States  was 
pinpointed  by  interviewees  as  one  of  the  main  advantages  of  the  Regulation,  as  it 
facilitates that the procedure is applied homogeneously across the countries, reducing the 
procedural barriers among the systems in cross-border proceedings. 

Secondly,  the  Regulation's  speeded  up  the  transmission  of  judicial  and  extrajudicial 
documents  by  introducing  direct  communication  between  the  local  (decentralized) 
agencies,  and  enhanced  the  transparency  of  the  relevant  information  by  publishing  that 
information in the common European platform (e-Justice Portal). The designation of the 
Central Bodies as well as the transmitting and receiving agencies facilitates the procedure 
as  stakeholders  involved  are  aware,  through  the  information  provided  by  the  e-Justice 
portal,  of  who  are  the  relevant  authorities  to  be  reached.  This  finding  from  the 
interviewees  is  also  supported  by  75%  of  the  public  consultation’s  respondents  (out  of 
91), who stated that it was indeed easy to identify the receiving agency in the Member 
State where the document had to be served. This was also corroborated by the results of 
the  online  survey  carried  out  by  the  contractor.  This  centralization  of  the  information 
together with the constant coordination amongst the Member States were singled out as 

64 

 
key aspects of the Regulation. The interviewees actually consider the main benefit of the 
Regulation to lay in the improved communication between the Member States. Therefore 
the  geographical  distance  between  the  Member  States  has  been  reduced  thanks  to  the 
centralization  of  information  and  fluent  communication  between  the  stakeholders 
involved in cross-border proceedings. 

Thirdly, the  EU  intervention  has  significantly contributed  to  ensuring  legal  certainty  of 
the  procedure.  As  previously  explained,  the  provisions  of  the  Regulation  are  clear 
concerning  the  steps  to  follow,  the  deadlines  to  respect,  and  the  forms  to  fill  in.  In 
addition, an added value of the Regulation is the protection of the rights of the defence, 
in particularly in relation to the language barriers. In this sense, 58% of the respondents 
to the public consultation (out of 62 to the question concerned) strongly agree or tend to 
agree that the procedural rights of the addressee are adequately respected in course of the 
proceedings. Despite the distance between the parties located in different Member States, 
the Regulation ensures that a common procedure is respected and their rights protected. 

Lastly,  as  explained  in  the  assessment  under  the  previous  evaluation  criteria,  the 
Regulation  has  yielded  effectiveness  and  efficiency  gains.  Overall,  stakeholders 
interviewed  agreed  that  the  Regulation  is  a  very  useful  instrument,  which  has 
considerably  helped  speeding  up  cross-border  proceedings.  In  particular,  direct 
communication and the existence of predefined standard forms have made cross-border 
cases easier. In terms of costs, the service of documents to other Member States has not 
generated disproportionate costs (see section 0).   

Although  stakeholders  having  a  negative  view  on  the  Regulation  are  truly  a  minority,  
limited  criticism  also  emerged  from  the  fieldwork  interviews.  A  limited  group  of 
stakeholders  consider  the  service  of  documents  abroad  not  only  slower  than  before  the 
adoption of the Regulation, but also more costly. On the other hand, due to the lack of 
respect of the deadlines laid down in the Regulation, legal certainty is threatened as there 
is no reliable expected time-frame of the procedure.  

6.  CONCLUSIONS 

The  conclusions  below  are  the  result  of  extensive  research  from  various  sources:  desk 
research  (including  an  assessment  of  case  law),  strategic  interviews  with  EU  level 
stakeholders, fieldwork  (on-site or  phone) interviews in  ten Member States,  analysis of 
the public consultation and the online survey234 results.  

6.1.  Effectiveness 

The  implementation  of  the  Regulation  has  contributed  to  some  clear  improvements 
concerning  the  effectiveness  of  the  service  of  documents.  Nevertheless,  according  to 

234 See section 2.3. for an explanation regarding the online survey results. 

65 

 
 
                                                            
some of the evidence gathered, the Regulation still results in some issues such as delays 
or confusion for the parties involved. Therefore, the Regulation has not fully achieved its 
general, specific and operational objectives.  

In  terms  of  the  operational  objectives,  the  Regulation  has  not  reached  them  to  a  full 
extent. In particular, two objectives are regarded as not fully achieved. First, it is still not 
ensured that all appropriate means are used to warrant a direct and rapid transmission of 
documents. Second, the direct service of documents under Article 15 of the Regulation is 
not fully facilitated, as it is only available in 12 Member States. Further, some Member 
States have very strict rules on the way that direct service can be used in their territory 
under  the  Regulation  which,  differing  from  their  own  domestic  rules,  create  confusion 
and additional burden to applicants in other Member States. 

The Regulation has impacted positively on all specific objectives, but on some more than 
others.  Although  some  delays  are  created  in  the  process  of  serving  documents, 
stakeholders  generally  agree  that  the  situation  has  improved  with  the  use  of  the 
Regulation and thus the objective of improving the efficiency and speed of cross-border 
proceedings  have  been  realised.  Regarding  the  right  to  access  to  justice  and  the 
protection of the rights of the parties, it was found that this objective is not met to the full 
extent. Although the provisions on the right to refusal and default judgments contained in 
the  Regulation  are  welcomed  by  stakeholders,  issues  still  exist  with  regard  to  their 
interpretation and application in the Member States. In addition, the Regulation does not 
address its relationship to the use at domestic level of fictitious or alternative methods of 
service on addressees with a residence or seat in another Member State, which can also 
impact of the rights of parties involved in cross-border proceedings. Lastly, in terms of 
the burden for citizens and business involved in cross-border proceedings, the Regulation 
has allowed for some reductions in the burden for businesses compared with the situation 
before  the  Regulation  however  it  has  not  minimised  the  burden.  Ambiguities  in  the 
Regulation cause additional costs for citizens and rapid and technological opportunities 
that could further reduce such burdens are not fully exploited by the Regulation.  

Regarding the Regulation’s general objectives, the Regulation has had a positive impact 
on ensuring the smooth functioning of the area of freedom, security and justice. This is 
mostly achieved through the uniform procedures for transmitting the documents abroad 
for purposes of service there and the harmonized conditions of certain direct methods of 
cross-border service of documents. However, regarding ensuring the smooth functioning 
of the Internal Market, the restriction of access to direct service in some of the Member 
States was found to be contrary to internal market principles.  

6.2.  Efficiency 

Assessment  of  the  efficiency  of  the  Regulation  indicates  that  its  effects  have  been 
achieved at a reasonable cost. The costs identified on the Member States’ side to comply 
with the Service Regulation consist mainly of allocating administrative tasks to relevant 
bodies and providing information for the e-Justice portal. This is not a significant burden 
when compared with the positive effects of the Regulation, which are: a common process 

66 

 
among  competent  agencies  exists  for  serving  a  document  in  the  EU;  a  common  set  of 
alternative ways for transmission and service of the documents in another Member State; 
and information being available online for the execution of service. Nevertheless, there is 
still room for improvement, notably the administrative burden for judicial authorities in 
terms of the communication through forms annexed in the Regulation is still significant. 

The  costs  borne  by  citizens  and  businesses involved in  the  service  of documents  under 
the Regulation are mainly the translation costs, costs stemming from the delays the cross-
border nature of the delivery process brings with it, and the costs for the intervention of a 
judicial officer or another competent person in the Member States where these agents are 
responsible  for  serving  judicial  and  extrajudicial  documents.  Nevertheless,  there  is  no 
evidence  that  the  Regulation  has  increased  the  costs  involved  in  cross-border 
proceedings; the situation is rather the opposite: certain elements of the Regulation (such 
as the approach which does not require a translation for a formal service of a document, 
the  time  saved  by  the  direct  communication  between  the  transmitting  and  receiving 
agencies and the obligation of the Member States concerned to communicate a flat rate 
fee to be charged for the intervention of a judicial officer) contributed to the mitigation of 
these costs.  

6.3.  Relevance  

The  Regulation  was  adopted  to  address  the  real  life  needs  of  stakeholders  involved  in 
cross-border proceedings regarding service of documents.  

On the one hand, legal practitioners require a streamlined process where the efficient and 
speedy transmission  of judicial  and extrajudicial documents is  ensured. The Regulation 
has brought not only a common regime to all Member States for the service of documents 
across  borders,  but  has  also  contributed  to  improving  the  speed  of  cross-border 
proceedings.  On  the  other  hand,  businesses  and  citizens  involved  in  cross-border 
proceedings require not only that the procedures for the service of documents be common 
to  all  EU  countries,  but  most  importantly,  that  it  ensure  that  their  rights  are  protected 
equally in all Member States. 

In broad terms, stakeholder needs identified have not changed significantly over the past 
years  of  implementation  of  the  Regulation.  The  Regulation,  hence,  still  addresses  the 
main needs of the stakeholders involved. Nevertheless, there still room for improvement. 
For example, the scope of the Regulation is not clear enough. Although its Article 1(1) 
stipulates  that  the  Regulation  applies  in  civil  and  commercial  matters,  there  is  some 
confusion  about  whether  it  should  also  apply  in  proceedings  of  different  nature  (e.g. 
criminal,  or  fiscal),  but  with  a  civil  or  commercial  dimension.  Similarly,  there  is  an 
ambiguity  around  the  concept  of  "extrajudicial  documents"  in  the  Regulation:  the 
fragmented  interpretation  of  its  content  relying  on  the  diverging  views  of  the  national 
procedural laws, is against the stated intention of the EU legislator to have this notion as 
an autonomous concept of EU law.   

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Also, the limitation of the scope of the Regulation to situations where the address of the 
person served is known (Art. 1(2)), is considered by the stakeholders as an element not 
reflecting actual needs. This limitation in scope raises some difficulties in legal disputes 
having cross-border implications, because claimants and right seeking persons from one 
Member State do not have the necessary information on the availability or cannot access 
tools and measures in the other States which may be used for clarifying the whereabouts 
of their adversaries.  

Furthermore,  some  key  emerging  trends,  such  as  digitisation,  have  been  identified  as 
posing  challenges  to  the  relevance  of  the  Regulation,  which  hence  could  no  longer  be 
regarded  fully  future-proof.  At  the  national  level,  some  Member  States  already  include 
electronic service in their legal systems, while others are investing efforts to do so.235 At 
EU  level,  the  increased  use  of  digital  solutions  (through  e.g.  eID  and  trust  services)  is 
encouraged and is being explored in all types of sectors and business processes, including 
in  legal  proceedings.  The  framework  set  up  by  the  eIDAS  Regulation  allows  for 
interoperability of more digital solutions and thus opens the door for potential growth in 
use of eID and trust services, or that of the CEF e-Delivery building block (which is used 
by  e-CODEX)  to  enhance  the  service  of  documents  in  cross-border  proceedings.  The 
Regulation  does  not  accept  the  (direct)  electronic  service  of  documents  from  one 
Member  State  to  another  as  a  valid  means  of  serving  documents,  whereas  electronic 
communication  between  the  transmitting  and  receiving  agencies  designated  under  the 
Regulation is a rare exception. The Regulation therefore falls behind these technological 
developments.  

6.4.  Coherence 

The  coherence  of  the  Regulation  has  been  assessed  from  an  internal  and  external 
perspective. In terms of internal coherence (i.e. the consistency of the different provisions 
within the Regulation), the Regulation is a robust legal instrument. There are nonetheless 
small issues hampering the overall internal coherence of the Regulation. For example, the 
Regulation  requires  the  competent  agency  to  include  the  refusal  form  when  serving  a 
document,  even  when  the  document  is  already  written  or  translated  in  the  official 
language of the Member States concerned (in such  cases, the right of refusal cannot be 
exercised). Or that the addressee is required to send back the document if he/she refuses 
in writing to accept it, although the written declaration alone represents a clear intention 
of the recipient regarding the refusal.  

The external coherence of the Regulation with both national and EU level instruments is 
ensured to some extent. Based on the evidence collected, it is noted that the Regulation is 
not fully compatible with certain national legal systems. The Regulation is, for example, 
not  naturally  coherent  with  Member  States  where  lawyers  or  other  competent  persons 
normally carry out the service of documents without the intervention of the courts (e.g. in 
most common law systems). The lack of provisions on electronic service also indicates 

235 See state of play in relevant chapter of the 2016 Study Firenze 

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the  inadequacy  of  the  Regulation  in  comparison  to  those  national  legal  systems  which 
already foresee such method. In addition, the Regulation was found to be coherent with 
other  relevant  EU  instruments  in  the  field  of  judicial  cooperation.  Although  no  major 
issues  have  been  identified  in  this  respect,  there  is  room  for  more  alignment  and 
synergies by adjusting the provisions of the Regulation. 

6.5.  EU added value  

The Regulation establishes a common set of procedures to all Member States, which is 
essential to ensuring a successful service of documents in cross-border proceedings. The 
Regulation has thereby contributed to ensuring the legal certainty of the procedure as all 
Member  States  now  follow  the  same  steps,  are  subject  to  common  deadlines,  and  use 
uniform  forms.  The  Regulation  has  also  enabled  to  bring  together  all  the  information 
available in the Member States, and centralised it in the e-Justice portal facilitating in this 
way  the  coordination  amongst  the  Member  States.  Overall,  the  Regulation  has 
considerably  helped  speeding  up  cross-border  proceedings,  enabling  significant 
effectiveness and efficiency gains.  

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