Götz Leffler v Berlin Chemie AG.
Date: 2005-11-08
3. The Regulation has the objective of improving the efficiency and speed of judicial procedures by establishing the principle of direct transmission of judicial and extrajudicial documents.
38. However, the other provisions of the Regulation, the objective noted in the second and sixth to ninth recitals in its preamble of ensuring that documents are transmitted rapidly and efficiently and the practical effect which must be accorded to the possibility, provided for in Articles 5 and 8 of the Regulation, of not having the document translated into the official language of the State addressed, justify precluding nullity of the document where it has been refused by the addressee on the ground that it is not in that language or in a language of the Member State of transmission which the addressee understands and, on the other hand, accepting the possibility of remedying the lack of translation.
44. To let national law determine whether the very principle that it is possible to remedy a lack of translation is accepted would prevent any uniform application of the Regulation, since it is possible for the Member States to provide for different solutions in this respect.
45. The objective pursued by the Treaty of Amsterdam of creating an area of freedom, security and justice, thereby giving the Community a new dimension, and the transfer from the EU Treaty to the EC Treaty of the body of rules enabling measures in the field of judicial cooperation in civil matters having cross-border implications to be adopted testify to the will of the Member States to establish such measures firmly in the Community legal order and thus to lay down the principle that they are to be interpreted autonomously.
46. Likewise, the choice of the form of a regulation, rather than that of a directive initially proposed by the Commission, shows the importance which the Community legislature attaches to the direct applicability of the Regulation’s provisions and their uniform application.
47. It follows that although the comments in the explanatory report on the Convention, an instrument adopted before the Treaty of Amsterdam entered into force, are useful, they cannot be relied upon to contest an autonomous interpretation of the Regulation demanding a uniform consequence for refusal of a document on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the document’s addressee understands. Similarly, the Court’s case-law in Lancray  was formulated in the context of interpretation of a legal instrument of a different nature which, unlike the Regulation, did not seek to establish an intra-Community system of service.
49. To interpret the Regulation as demanding the possibility of remedying the lack of translation as a uniform consequence of refusal of a document on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the document’s addressee understands does not call into question the importance of national law and the role of national courts. As is apparent from settled case-law, in the absence of Community provisions it is for the domestic legal system of each Member State to determine the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from the direct effect of Community law (see, inter alia, Case 33/76 Rewe  [1976] ECR 1989, paragraph 5).
50. The Court has, however, made it clear that those rules cannot be less favourable than those governing rights which originate in domestic law (principle of equivalence) and that they cannot render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see Rewe , cited above, paragraph 5, Case C-261/95 Palmisani  [1997] ECR I-4025, paragraph 27, and Case C-231/96 Edis  [1998] ECR I-4951, paragraph 34). As the Advocate General has observed in points 38 and 64 of her Opinion, the principle of effectiveness must lead the national court to apply the detailed procedural rules laid down by domestic law only in so far as they do not compromise the raison d’être and objective of the Regulation.
51. It follows that, where the Regulation does not prescribe the consequences of certain facts, it is for the national court to apply, in principle, national law while taking care to ensure the full effectiveness of Community law, a task which may lead it to refrain from applying, if need be, a national rule preventing that or to interpret a national rule which has been drawn up with only a purely domestic situation in mind in order to apply it to the cross-border situation at issue (see inter alia, to this effect, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 16, Case C-213/89 Factortame and Others  [1990] ECR I‑2433, paragraph 19, Case C‑453/99 Courage and Crehan  [2001] ECR I-6297, paragraph 25, and Case C‑253/00 Muñoz and Superior Fruiticola  [2002] ECR I‑7289, paragraph 28).
53. The answer to the first question must therefore be that, on a proper construction of Article 8(1) of the Regulation, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, it is possible for the sender to remedy that by sending the translation requested.
Question 2
65. The effect that sending a translation has on the date of service should be determined by analogy with the double-date system developed in Article 9(1) and (2) of the Regulation. In order to uphold the effectiveness of the Regulation, it is important to ensure that the rights of the various parties to the case are accorded maximum, and balanced, protection.
66. The date of service may be important for an applicant, for example when the document served constitutes the bringing of proceedings that must be instituted within a mandatory time-limit or is designed to interrupt the running of a limitation period. In addition, as has been stated in paragraph 38 of this judgment, failure to comply with Article 8(1) of the Regulation does not result in nullity of service. In view of those factors, it is to be held that the applicant must be able to benefit, as regards the date, from the effect of the initial service in so far as he has displayed diligence in regularising the document by sending a translation as soon as possible.
67. However, the date of service may also be important for the addressee, in particular because it constitutes the point at which time starts to run for having recourse to a remedy or preparing a defence. Effective protection of the document’s addressee entails taking into account, in his regard, only the date on which he was able not only to have knowledge of, but also to understand, the document served, that is to say the date on which he received the translation of it.
69. In order to resolve problems connected with the way in which the lack of translation should be remedied that are not envisaged by the Regulation as interpreted by the Court, it is incumbent on the national court, as indicated in paragraphs 50 and 51 of this judgment, to apply national procedural law while taking care to ensure the full effectiveness of the Regulation, in compliance with its objective.