COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE 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

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   EUROPEAN COMMISSION  Brussels, 31.5.2018  SWD(2018) 286 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE 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) 287 final}  
 
 
Executive Summary  

Impact assessment on a 

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) 

A. Need for action 

Why? What is the problem being addressed?  
The Regulation lays down the ways in which judicial and extrajudicial documents can be served, and clear rules 
for transmitting judicial and extrajudicial documents from one Member State to another in civil and  commercial 
matters. It provides for minimum standards with regard to the protection of the rights of defence and sets uniform 
legal conditions for serving a document by post directly across borders. 

Currently,  there  are  approximately  3.4  million  civil  and  commercial  court  proceedings  with  cross-border 
implications every year. Where at least one party resides in a Member State other than the one where litigation 
takes  place,  courts  apply  this  Regulation,  often  several  times  in  the  course  of  proceedings.  The  proper 
functioning  of  the  Regulation  is  indispensable  in  ensuring  access  to  justice,  a  fair  trial  for  the  parties  to  the 
proceedings, and in avoiding delays and extra costs in proceedings. For instance, failing to properly serve the 
document  initiating  proceedings  is  by  far  the  most  often  used  ground  for  refusing  to  recognise  and  enforce 
judgments. 

Today,  contacts  between  the  bodies  transmitting  and  receiving  documents  for  the  purpose  of  service  are  still 
almost  exclusively  paper-based,  which  can  make  them  costly  and  inneficient.  There  is  also  in  practice  no 
possibility for serving documents  on the recipient electronically in cross-border cases, although some Member 
States have introduced or are introducing that possibility at the domestic level. This initiative addresses the need 
to modernise, and in particular to digitalise, the process of serving documents abroad. It also tackles a number of 
other gaps in the Regulation identified in the evaluation of its operation. These gaps lead to delays and costs for 
citizens and businesses as well as for Member States, shortcomings in the protection of procedural rights and 
legal complexity and uncertainty. The main problems identified are: 

 
 

 

circumstances leading to an insufficient quality of the documentation of service by post,  
the restriction or inaccessibility of direct service in a cross-border context in many Member States even 
where allowed domestically,  
shortcomings  concerning  the  clarity  of  rules  protecting  the  procedural  rights  of  parties  in  relation  to 
translation requirements as well as in situations of default judgments, and  

  a preference for fictitious or alternative methods of domestic service instead of those laid down in the 

Regulation.   

The  stakeholders  affected  are  citizens  and  businesses  as  parties  to  legal  proceedings,  businesses  as  service 
providers, e.g. in relation to postal services or IT consulting, Member States’ public and judicial authorities, and 
legal professionals (in particular judges and lawyers). 

This  initiative  is  closely  linked  to  the  initiative  concerning  the  cooperation  between  the  courts  of  the  Member 
States  in  taking  evidence  in  civil  or  commercial  matters  governed  by  Regulation  (EC)  No 1206/2001.  The  two 
initiatives are closely intertwined with the overall Commission priority of digitalisation and e-Justice and follow the 
lead of parallel work in the field of criminal justice (e-Evidence) in order to create a level playing field in the areas 
of criminal and civil justice. They build on and benefit from existing EU legislation outputs and legal standards (e-
CODEX and the eIDAS Regulation). 

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What is this initiative expected to achieve?  

The initiative is  expected  to further improve the efficiency and speed of judicial procedures and ensure proper 
administration of justice in cases with cross-border implications. In this way it will help improve the functioning of 
the internal market and reduce unnecessary costs whilst at the same time protecting or improving the rights of 
the  defence.  The  initiative  will  further  accelerate  and  simplify  the  cooperation  mechanism  for  cross-border 
judicial assistance, in particular by adapting the system to technical developments and exploiting the advantages 
offered  by  digitalisation  and  by  creating  greater  transparency  in  locating  an  addressee.  It  will  also  further 
improve legal certainty and efficiency by facilitating the use of speedy service methods  like postal service and 
direct service and by clarifying the scope of the Regulation and its role in protecting the procedural rights of the 
parties.  

What is the value added of action at EU level?  

The  initiative  has  clear  added  value  at  EU  level,  since  it  will  improve  the  efficiency  and  speed  of  judicial 
procedures  by  simplifying  and  accelerating  the  cooperation  mechanisms  for  the  service  of  documents.  In  this 
way  the  initiative  will  improve  the  administration  of  justice  in  cases  with  cross-border  implications.  By  its  very 
nature,  cooperation  between  Member  States  in  cases  where  documents  are  served  cross-border  cannot  be 
efficiently regulated at the level of Member States individually.  

B. Solutions 

What legislative and non-legislative policy options have been considered? Is there a preferred choice or 
not? Why?  

A range of options  from non-legislative measures to ambitious  legislative action have been considered. These 
options range from providing information on the e-Justice Portal (e.g. tools and search functions), amending the 
Regulation  to  clarify  certain  provisions  (e.g.  on  procedural  safeguards  such  as  right  to  refuse  to  serve 
documents) to creating legal obligation on the Member States (e.g. obliging them to facilitate address enquiries 
but proposing a set of alternative tools to achieve this). 

The preferred option is a policy package that would:  

  oblige  Member  States  to  communicate  and  exchange  documents  between  each  other  using  a  secure 

 

electronic channel (such as e-CODEX);  
introduce  cross-border  electronic  service  as  an  accepted  method  of  service  under  the  Regulation, 
subject to certain conditions;  
clarify the uniform standard character of the existing conditions to postal service;  

 
  expand the use of direct service and introduce a ‘digital-by-default’ principle;  
  oblige Member States to facilitate address enquiries through (at least) one of a range of alternative tools;  
codify  relevant  CJEU  case  law  by  specifying  in  the  Regulation  that  it  applies  not  only  to  documents 
 
which  emanate  from  a  public  or  judicial  authority  (for  instance  a  public  notary),  but  also  to  private 
documents if formal service is required in order to prove or protect rights of the claimant;  

  amend the Regulation to clarify provisions on the right to refuse to serve a document;  
 
 
 

introduce new rules to better protect the defendant against the effects of default judgments;  
codify that the use of fictitious methods is allowed against foreign parties; and 
clarify the provision of information on the e-Justice portal.   

Who supports which option?  

Stakeholders  were  asked  about  their  involvement  in  cross-border  judicial  proceedings  and  their  preferences. 
73 %  of  the  stakeholders  replied  that  they  have  been  involved  in  cross-border  judicial  proceedings  and  more 
than 70 % had been involved in cases in which the Regulation had to be applied. Support was particularly strong 
for digitalisation: 61 % of the respondents agreed and 39 % of them tended to agree that the use of electronic 
means should become the default standard communication between the authorities/agencies involved in cross-
border  judicial  cooperation  in  civil  matters.  The  idea  of  judicial  assistance  for  finding  the  whereabouts  of  a 
person  in  another  Member  State  was  also  supported  by  a  large  majority  of  respondents,  with  55 %  strongly 

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agreeing  and  33 %  tending  to  agree.  As  regards  direct  service,  35 %  of  the  respondents  taking  a  position 
strongly  agreed  and  46 %  tended  to  agree  with  the  idea  that  competent  persons,  such  as  bailiffs  or  process 
servers in all Member States, could be directly requested from abroad to serve documents in their territory. 43 % 
of the stakeholders giving their opinion strongly agreed and 47 % tended to agree that it would be beneficial to 
ensure a uniform level of protection for defendants from another Member State who did not appear before court. 

What are the benefits of the preferred option (if any, otherwise main ones)?  

C. Impacts of the preferred option 

The preferred policy package brings benefits in particular by reducing costs and delays (e.g. through introducing 
an  electronic  communication  system  and  encouraging  the  e-service  of  documents).  It  would  also  reduce 
negative environmental impacts while ensuring coherence with other legal instruments. 

Concretely,  the  effectiveness  of  the  Regulation  would  be  improved  by  the  introduction  of  e-CODEX  as  a 
mandatory  communication  tool  between  the  agencies.  Facilitating  electronic  and  direct  service  will  also  help 
improve  the  efficiency  and  speed  of  proceedings,  and  lower  the  burden  on  citizens  and  businesses.  The 
preferred  package  would  also  help  greatly  in  improving  access  to  justice  and  legal  certainty  since  it  includes 
measures to clarify ambiguities and on locating an addressee. The package would improve both the internal and 
external  coherence  of  the  Regulation.  Its  provisions  on  the  electronic  service  of  documents  and  on  electronic 
communications  would  be  aligned  with  the  required  data  protection  standards.  The  package  can  also  be 
expected  to  greatly  reduce  the  environmental  impact  of  the  Regulation  as  it  would  replace  paper-based 
communications  between  the  designated  authorities  with  the  electronic  service  of  documents  and  the  use  of 
electronic means of communication. 

What are the costs of the preferred option (if any, otherwise main ones)?                     
The policy package is expected to generate some costs for Member States but significant benefits for citizens 
and businesses involved in cross-border proceedings. The greatest costs for Member States is associated with 
the  implementation  of  e-CODEX  as  a  mandatory  tool  for  transmitting  and  receiving  agencies.  However,  these 
costs  are  rather  limited  or  one-off,  whilst  the  benefits  are  lasting.  Overall,  on  balance  the  benefits  clearly 
outweigh the costs. 

How will businesses, SMEs and micro-enterprises be affected?  

The preferred policy package would bring benefits for businesses involved in cross-border proceedings.   
The policy package would save time for businesses as parties to legal proceedings because it introduces more 
efficient procedures for service. This would in turn decrease legal fees paid to lawyers, particularly in situations 
that could give rise to litigation, because the Regulation will provide clarifications. For businesses involved in the 
service of documents (e.g. process servers, bailiffs), the overall revenue generated by service requested under 
the Regulation is expected to increase somewhat as further integration of the internal market causes the number 
of cross-border proceedings to rise. As for businesses that provide service in different industries, the business 
revenue  may  shift  between  types  of  businesses:  those  to  benefit  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.  Those  which  could  experience  at  least some 
neutral  or  negative  economic  impact  are  bailiffs/private  process  servers,  and  providers  of  paper  and  office 
supplies.   

Will there be significant impacts on national budgets and administrations?  

The  proposed  package  will  not  impose  significant  costs  on  national  administrations,  nor  will  it  create  savings. 
National public authorities are expected to benefit from reduced costs in relation to postal services, time savings 
due to more efficient legal proceedings, and decreasing administrative burdens and labour costs. Introducing e-
CODEX would incur some costs, but would reduce costs on postal services in the long term.   

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Will there be other significant impacts?  
The  proposed  package  would  have  a  positive  impact  on  judicial  cooperation  since  it  would  improve 
communication  between  the  Member  States  in  an  easy  and  secure  way  and,  especially  through  e-Justice, 
provide knowledge about the relevant methods and costs in order to ensure fast and effective procedures in the 
cross-border service of documents. It would improve legal certainty and access to justice since it would improve 
the  procedural  rights  of  the  parties  to  the  proceedings.  Moreover,  it  would  help  modernise  public  (including 
judicial)  administration,  achieve  cross-border  interoperability  and  make  it  easier  to  interact  with  citizens  in  line 
with the Digital Single Market Strategy and the e-Government Strategy.  

When will the policy be reviewed?  
The impact of the proposed initiative will be evaluated in a report drawn up by the Commission five years after 
the amended instrument enters into force.  

D. Follow up 

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