CELEX: 62004CJ0473
Language: en
Date: 2006-02-09 00:00:00
Title: Judgment of the Court (Third Chamber) of 9 February 2006.#Plumex v Young Sports NV.#Reference for a preliminary ruling: Hof van Cassatie - Belgium.#Judicial cooperation - Regulation (EC) No 1348/2000 - Articles 4 to 11 and 14 - Service of judicial documents - Service through agencies - Service by post - Relationship between the methods of transmission and service - Precedence - Time-limit for an appeal.#Case C-473/04.

Case C-473/04
      Plumex
      v
      Young Sports NV
      (Reference for a preliminary ruling from the Hof van Cassatie)
      (Judicial cooperation – Regulation (EC) No 1348/2000 – Articles 4 to 11 and 14 – Service of judicial documents – Service through agencies – Service by post – Relationship between the methods of transmission and service – Precedence – Time-limit for an appeal)
      Summary of the Judgment
      Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation No 1348/2000
      (Council Regulation No 1348/2000, Arts 4 to 11 and 14)
      Council Regulation No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial
         matters must be interpreted as meaning that it does not establish any hierarchy between the method of transmission and service
         through agencies under Articles 4 to 11 thereof and the method of service by post under Article 14 thereof and that, consequently,
         it is possible to serve a judicial document by one or other or both of those methods. First, neither the recitals in the preamble
         to the regulation nor its provisions state that a method of transmission and service, used in accordance with the rules of
         the regulation, would rank below the method of service through agencies. Secondly, in the light of the spirit and purpose
         of the regulation, which is intended to ensure that judicial documents are served effectively, while respecting the legitimate
         interests of the persons on whom they are served, and in view of the fact that all the methods of service provided for by
         the regulation can ensure, as a rule, that those interests are respected, it must be conceivable to use one or other, or indeed
         two or more at once of those methods of service which appear the most suitable or appropriate in light of the circumstances
         of the case.
      
      Consequently, where service is being effected both through agencies and by post, in order to determine vis-à-vis the person
         on whom service is effected the point from which time starts to run for the purposes of a procedural time-limit linked to
         effecting service, reference must be made to the date of the first service validly effected. In order not to render meaningless
         the provisions of the regulation governing those methods of service, all the legal effects which follow when one of those
         methods is validly effected must be taken into account irrespective of subsequent successful service by another method. Moreover,
         the regulation is intended to expedite the transmission of judicial documents for service and, therefore, the conduct of judicial
         proceedings. If, for the purposes of computing a procedural time-limit, the first service of the document in question is taken
         into consideration, the person on whom that document is served is required to defend judicial proceedings earlier, which can
         enable the competent court to give a ruling within shorter time-limits.
      
      (see paras 20-21, 28-32, operative part)
JUDGMENT OF THE COURT (Third Chamber)
      9 February 2006 (*)
      
      (Judicial cooperation – Regulation (EC) No 1348/2000 – Articles 4 to 11 and 14 – Service of judicial documents – Service through agencies – Service by post – Relationship between the methods of transmission and service – Precedence – Time-limit for an appeal)
      In Case C-473/04,
      REFERENCE for a preliminary ruling under Articles 68 EC and 234 EC from the Hof van Cassatie (Belgium), made by decision of
         22 October 2004, received at the Court on 9 November 2004, in the proceedings
      
      Plumex
      v
      Young Sports NV,
       
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, S. von Bahr and A. Borg Barthet,
         Judges,
      
      Advocate General: A. Tizzano,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        the Austrian Government, by C. Pesendorfer, acting as Agent,
      –        the Finnish Government, by T. Pynnä, acting as Agent,
      –        the Swedish Government, by A. Falk, acting as Agent,
      –        the United Kingdom Government, by E. O’Neill, acting as Agent,
      –        the Commission of the European Communities, by A.‑M. Rouchaud-Joët and R. Troosters, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 17 November 2005,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Articles 4 to 11 and 14 of Council Regulation (EC)
         No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial
         matters (OJ 2000 L 160, p. 37, ‘the Regulation’).
      
      2        The reference was made in the course of an appeal brought by Plumex against the Hof van Beroep te Gent’s dismissal for being
         out of time of an appeal against a judgment at first instance ruling on a dispute between Plumex and Young Sports NV.
      
       Relevant provisions
       Community legislation 
      3        In the words of the second recital in the preamble to the Regulation, the proper functioning of the internal market entails
         the need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for
         service between the Member States.
      
      4        The Regulation thus has the objective of improving efficiency and speed in judicial procedures by establishing the principle
         of direct transmission of judicial and extrajudicial documents.
      
      5        Article 1(1) provides that the Regulation is to apply in civil and commercial matters where a judicial or extrajudicial document
         has to be transmitted from one Member State to another for service there.
      
      6        Chapter II of the Regulation contains provisions which provide for various means of transmission and service of judicial documents.
         It is divided into two sections.
      
      7        Section 1 of that chapter, comprised of Articles 4 to 11, relates to the first method of transmission and service (‘service
         through agencies’), under which a judicial document to be served is first to be transmitted directly and as soon as possible
         between the agencies designated by the Member States, referred to as ‘transmitting agencies’ and ‘receiving agencies’. Next,
         the receiving agency is itself to serve that document or have it served, either in accordance with the law of the Member State
         addressed or in the particular manner requested by the transmitting agency, unless such a method is incompatible with the
         law of that Member State.
      
      8        Article 7 of the regulation provides that all steps required for service of the document are to be effected as soon as possible.
      
      9        Section 2 of Chapter II of the Regulation provides for ‘[o]ther means of transmission and service of judicial documents’,
         namely transmission by consular or diplomatic channels (Article 12), service by diplomatic or consular agents (Article 13),
         service by post (Article 14) and direct service (Article 15).
      
      10      As regards service by post in particular, Article 14 of the Regulation provides: 
      
      ‘1.      Each Member State shall be free to effect service of judicial documents directly by post to persons residing in another Member
         State.
      
      2.      Any Member State may specify, in accordance with Article 23(1), the conditions under which it will accept service of judicial
         documents by post.’
      
      11      According to the information communicated by the Member States in accordance with Article 23 of the Regulation (OJ 2001 C
         151, p. 4), as amended, inter alia, by its first update (OJ 2001 C 202, p. 10), the Portuguese Republic has accepted service
         by post, provided it is made by registered letter with advice of delivery and is accompanied by a translation.
      
       National legislation
      12      Under Article 1051 of the Belgian Judicial Code the time-limit for lodging an appeal is one month from service of the judgment.
      
      13      Under the same provision, read in conjunction with Article 55 of the Judicial Code, the time-limit for an appeal is extended
         by 30 days if one of the parties on which the judgment is served does not reside or have a registered address or an address
         for service in Belgium, where that party resides in a European country other than the United Kingdom or the countries bordering
         on Belgium.
      
      14      Article 40(1) of the Judicial Code provides that, as regards persons who do not have a known residence or registered address
         or address for service in Belgium, the copy of the document is to be sent by the process server by letter registered with
         the postal service to their residence or their registered address abroad and service is deemed to have been effected when
         the document is handed to the postal service in return for a certificate of posting, in accordance with the formal requirements
         under that article.
      
       The main proceedings and the questions referred for a preliminary ruling
      15      Plumex, a company incorporated under Portuguese law with a registered office in Portugal, was served at its address in Portugal
         with a judgment from a Belgian court of first instance delivered in a case between Plumex and Young Sports NV. Service was
         effected both through agencies and by post.
      
      16      On 17 December 2001, Plumex lodged an appeal against that judgment before the Hof van Beroep. That court dismissed the appeal
         for being out of time, holding that the time-limit for an appeal provided for in Article 1051 of the Belgian Judicial Code
         had expired on 11 December 2001 since the period had begun to run on the day on which the first service was validly effected,
         in this case the service by post.
      
      17      Plumex brought an appeal against that decision before the Hof van Cassatie, claiming that the Regulation had to be interpreted
         as meaning that service through agencies constituted the primary method of service taking precedence over service by post.
         Accordingly, the time-limit for an appeal must be calculated from the date of the ‘primary’ service – which took place after
         the service by post – since the latter was only ‘secondary’ service.
      
      18      In those circumstances, the Hof van Cassatie decided to stay the proceedings and to refer the following questions to the Court
         for a preliminary ruling:
      
      ‘(1)      Is the service contemplated by Articles 4 to 11 the primary method of service and service directly by post contemplated by
         Article 14 a secondary method of service, whereby the former method takes precedence over the latter when both are effected
         in accordance with the legal requirements?
      
      (2)      In the case of service being effected twice, once in accordance with Articles 4 to 11, and once directly by post in accordance
         with Article 14, does the time-limit for an appeal begin to run against the person on whom service was effected on the date
         of the service effected in accordance with Articles 4 to 11 and not on the date of service in accordance with Article 14?’
      
       On the questions referred for a preliminary ruling
       The first question
      19      By its first question, the national court asks, essentially, whether any hierarchy exists between service through agencies
         and service by post, whereby the first method takes precedence over the second where both have been validly effected.
      
      20      It must be observed at the outset that there is nothing in the wording of the Regulation to indicate that it introduced a
         hierarchy between those methods of service. Neither the recitals in its preamble nor its provisions state that a method of
         transmission and service, used in accordance with the rules of the Regulation, would rank below the method of service through
         agencies. 
      
      21      Moreover, it follows from the spirit and purpose of the Regulation that it is intended to ensure that judicial documents are
         served effectively, while respecting the legitimate interests of the persons on whom they are served. Although all the methods
         of service provided for by the Regulation can ensure, as a rule, that those interests are respected, it must be conceivable,
         in view of that purpose, to use one or other, or indeed two or more at once of those methods of service which appear the most
         suitable or appropriate in light of the circumstances of the case.
      
      22      In view of the foregoing, the answer to the first question must be that the Regulation does not establish any hierarchy between
         service through agencies and service by post and, consequently, it is possible to serve a judicial document by one or other
         or both of those methods.
      
       The second question
      23      By its second question, the national court asks, essentially, to the date of which service must reference be made to determine
         vis-à-vis the person on whom service is effected the point from which time starts to run for the purposes of a procedural
         time-limit linked to effecting service where service is being effected both through agencies and by post.
      
      24      In the observations which they submitted to the Court, the Austrian Government and the Commission of the European Communities
         state that they are uncertain as to whether the Court has jurisdiction to answer that question, since it concerns only the
         interpretation of national law. Where a Member State makes it possible to serve a judgment in various ways, the time-limit
         for an appeal starts to run under Belgian law, as a rule, from the first service which was valid. That date is determined
         in accordance with the law of the Member State addressed and, in any event, in accordance with national law,
      
      25      In that respect, it should be recalled that, according to settled case-law, it is solely for the national courts before which
         actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light
         of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and
         the relevance of the questions which they submit to the Court. Consequently, where the questions referred involve the interpretation
         of Community law, the Court is, in principle, obliged to give a ruling (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, and Case C-18/01 Korhonenand Others [2003] ECR I-5321, paragraph 19).
      
      26      The second question relates to the relationship between the various methods of service provided for by the Regulation and
         it therefore involves the interpretation of Community law.
      
      27      Accordingly, the Court is obliged to give a ruling.
      
      28      As to the substance, first of all it follows from the answer to the first question that no hierarchy exists between service
         through agencies and service by post.
      
      29      Secondly, in order not to render meaningless the provisions of the Regulation governing those methods of service, all the
         legal effects which follow when one of those methods is validly effected must be taken into account irrespective of subsequent
         successful service by another method.
      
      30      Finally, it must be observed that, in accordance with the second recital in the preamble thereof, the Regulation is intended
         to expedite the transmission of judicial documents for service and, therefore, the conduct of judicial proceedings. If, for
         the purposes of computing a procedural time-limit, the first service of the document in question is taken into consideration,
         the person on whom that document is served – to whom such a time-limit applies – is required to defend judicial proceedings
         earlier, which can enable the competent court to give a ruling within shorter time-limits.
      
      31      It follows from all those considerations that, where service is effected more than once in accordance with the Regulation,
         account must be taken of the service effected first. There is nothing in the Regulation to preclude the application of such
         an approach to the relationship between service through agencies and service by post. Accordingly, where service is effected
         by both those methods, in order to determine vis-à-vis the person on whom service is effected the point from which time starts
         to run for the purposes of a procedural time-limit linked to effecting service, reference must be made to the date of service
         by post, where that occurred first.
      
      32      That conclusion does not adversely affect in any way the interests of the person on whom a judicial document is served since
         the first service validly effected enables him in fact to become acquainted with the document and to have a sufficient period
         of time in which to defend the proceedings. The fact that he is subsequently served with the same judicial document by a different
         method does not alter the fact that the first service has already complied with those requirements. 
      
      33      The answer to the second question must therefore be that, where service is being effected both through agencies and by post,
         in order to determine vis-à-vis the person on whom service is effected the point from which time starts to run for the purposes
         of a procedural time-limit linked to effecting service, reference must be made to the date of the first service validly effected.
      
       Costs
      34      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Third Chamber) hereby rules:
      1.      Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents
            in civil or commercial matters must be interpreted as meaning that it does not establish any hierarchy between the method
            of transmission and service under Articles 4 to 11 thereof and that under Article 14 thereof and, consequently, it is possible
            to serve a judicial document by one or other or both of those methods. 
      2.      Regulation No 1348/2000 must be interpreted as meaning that, where transmission and service are effected by both the method
            under Articles 4 to 11 thereof and the method under Article 14 thereof, in order to determine vis-à-vis the person on whom
            service is effected the point from which time starts to run for the purposes of a procedural time-limit linked to effecting
            service, reference must be made to the date of the first service validly effected.
      [Signatures]
      * Language of the case: Dutch.