Andrew Marcus Henderson v Novo Banco SA.
Date: 2017-03-02
50


In that context, the Court has already decided that the right to refuse to accept the document to be served constitutes a right of the addressee of that document (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraph 49, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 61).
51


As the Court has already pointed out, the right to refuse to accept service of a document stems from the need to protect the rights of the defence of the addressee of that document, in accordance with the requirements of a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, to that effect, order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 73). While the main aim of Regulation No 1393/2007 is to improve the efficiency and speed of judicial procedures and to ensure the proper administration of justice, the Court has held that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees of the documents in question (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraphs 30 and 31, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraphs 48 and 49).
52


It is important, therefore, not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able to effectively prepare his defence and assert his rights in the Member State of transmission (judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraph 32 and the case-law cited, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 50).
53


In order for the right of refusal set out in Article 8(1) of Regulation No 1393/2007 to usefully produce its effects, it is necessary that the addressee of the document has been duly informed, in advance and in writing, of the existence of that right (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraphs 50 and 54, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraphs 62 and 66).
54


In the system established by Regulation No 1393/2007, that information is provided to him using the standard form set out in Annex II to that regulation (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraph 50, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 62).
55


As regards the scope which must be given to that standard form, the Court has already held that Regulation No 1393/2007 does not contain any exceptions to its use (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraph 45, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 59).
56


From that consideration and the aim pursued by the standard form set out in Annex II to Regulation No 1393/2007, as described in paragraphs 53 and 54 of the present judgment, the Court has inferred 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 that standard form (judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraph 58, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 68).
57


Furthermore, where the receiving agency, which is required to serve the document concerned on its addressee residing in another Member State, has not enclosed the standard form in Annex II of Regulation No 1393/2007, that omission cannot render invalid either the document to be served or the procedure for service, as that consequence would be incompatible with the objective pursued by that regulation, which consists in providing a means of direct, rapid and effective transmission between Member States of documents in civil and commercial matters (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraphs 60 to 66).
58


On the other hand, as communication of that form constitutes an essential formality, intended to safeguard the rights of defence of the addressee of the act, its omission must be corrected by the receiving agency in accordance with the provisions laid down by Regulation No 1393/2007. The receiving agency must therefore immediately inform the addressee of the document of his right to refuse to accept it, by submitting to him, pursuant to Article 8(1) of that regulation, that standard form (see, to that effect, judgment of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraphs 67, 70, 72 and 74, and order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 71).
71


In order to answer those questions, it should be noted at the outset that Regulation No 1393/2007 exhaustively provides for various means of service of judicial documents, in respect of which it lays down the applicable rules, without establishing a hierarchy between them (see, to that effect, judgments of 9 February 2006, Plumex, C‑473/04, EU:C:2006:96, paragraphs 20 to 22, and of 19 December 2012, Alder (C‑325/11, EU:C:2012:824, paragraphs 31 and 32). Those means of transmission include postal service, at issue in the main proceedings, which is essentially the subject of Article 14 of that regulation.
72


As the Court has already held, the provisions of Regulation No 1393/2007 must be interpreted so as to guarantee, in each specific case, a fair balance between the interests of the applicant and those of the defendant, the addressee of the document, by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected, through, inter alia, the guarantee of actual and effective receipt of those documents (judgment of 16 September 2015, Alpha Bank Cyprus (C‑519/13, EU:C:2015:603) paragraph 33 and the case-law cited).
91


Such protection of the defaulting defendant’s rights, more particularly referred to in Article 19(1) of Regulation No 1393/2007, is consistent with the aim pursued by the requirements of other European Union acts relating to judicial cooperation in civil and commercial matters, such as Regulation No 44/2001, Article 34(2) of which also presupposes that the document in question has previously been served on the defendant (see, to that effect, order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 86 and the case-law cited, and the judgment of 7 July 2016, Lebek, C‑70/15, EU:C:2016:524, paragraph 41 and the case-law cited).