Ingenieurbüro Michael Weiss und Partner GbR v Industrie- und Handelskammer Berlin.
Date: 2008-05-08
45. In the absence of useful guidance in the wording of Article 8 of Regulation No 1348/2000, that provision must be interpreted in the light of its objectives and its context and, more generally, the objectives and context of Regulation No 1348/2000 itself (see, to that effect, Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43).
46. As is apparent from recital 2 of the preamble, the objectives of Regulation No 1348/2000 are to improve and expedite the transmission of documents. Those objectives are reiterated in recitals 6 to 8. Recital 8 thus states that ‘[t]o secure the effectiveness of this Regulation, the possibility of refusing service of documents is confined to exceptional situations’. In addition, Article 4(1) of that regulation provides that judicial documents are to be transmitted as soon as possible.
47. However, those objectives cannot be attained by undermining in any way the rights of the defence (see, by analogy, with regard to Regulation No 44/2001, Case C-283/05 ASML  [2006] ECR I‑12041, paragraph 24). Those rights, which derive from the right to a fair hearing guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), constitute a fundamental right forming part of the general principles of law whose observance the Court ensures (see, inter alia, ASML , paragraph 26).
48. Every effort must therefore be made to reconcile the objectives of effectiveness and speed in the transmission of procedural documents, which are necessary for the sound administration of justice, with that of the protection of the rights of the defence, in particular in interpreting Article 8 of the Regulation No 1348/2000 and, specifically, the term ‘document to be served’, where that is a document instituting proceedings, in order to be able to determine whether such a document must include annexes consisting of documentary evidence.
50. However, the interpretation of Regulation No 1348/2000 cannot be dissociated from the context of developments in the field of judicial cooperation in civil matters, which include that regulation, in particular Regulation No 44/2001, Article 26(3) and (4) of which expressly refers to Regulation No 1348/2000.
53. Moreover, Regulation No 1348/2000 itself does not specify whether the right to refuse a document if it has not been translated also exists in the case of service by post effected in accordance with Article 14 of that regulation. In order to interpret that provision, it is necessary to examine the Explanatory Report on the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, drawn up by an act of the Council of the European Union dated 26 May 1997 (OJ 1997 C 261, p. 1, ‘the 1997 Convention’; explanatory report, p. 26) on the basis of Article K.3 of the EU Treaty, on the text of which Regulation No 1348/2000 is based (see, to that effect, Case C‑443/03 Leffler  [2005] ECR I‑9611, paragraph 47).
60. Regulation No 1348/2000 must be given an autonomous interpretation so that it may be applied in a uniform manner ( Leffler , paragraphs 45 and 46). The same applies to Regulation No 44/2001 and, in particular, the term ‘document instituting the proceedings’ within the meaning of Articles 26 and 34(2) of that regulation, as well as the corresponding provisions of the Brussels Convention.
61. Ruling on the interpretation of Article 27(2) of the Brussels Convention concerning recognition of judgments, the Court defined the term ‘document which instituted the proceedings or ... equivalent document’ within the meaning of that provision as meaning the document or documents which must be duly served on the defendant in due time in order to enable him to assert his rights before an enforceable judgment is given in the State of origin (see, to that effect, Case C‑474/93 Hengst Import  [1995] ECR I‑2113, paragraph 19).
62. The Court thus held that in the case giving rise to the judgment in Hengst Import  the document which instituted the proceedings was constituted by the combination of the order to pay (‘ decreto ingiuntivo’) issued by an Italian court in accordance with Article 641 of the Italian Code of Civil Procedure and the plaintiff’s application. It is the joint service of both those documents which starts time running for the defendant to oppose the order. Moreover, the plaintiff cannot obtain an enforceable order before the expiry of that time-limit ( Hengst Import , paragraph 20).
63. The Court stated that the ‘ decreto ingiuntivo ’ is just a form which, to be comprehensible, must be read with the application. Conversely, service of the application alone does not enable the defendant to decide whether to defend the action since, without the ‘ decreto ingiuntivo ’, he does not know whether the court had granted or refused the application. Moreover, the requirement for joint service of the ‘ decreto ingiuntivo ’ and the application was confirmed by Article 643 of the Italian Code of Civil Procedure, according to which it marked the start of the p roceedings ( Hengst Import , paragraph 21).
64. It is apparent from that autonomous definition of the document instituting the proceedings, as interpreted by the Court, that such a document must consist of the document or documents, where they are intrinsically linked, enabling the defendant to understand the subject‑matter and grounds of the plaintiff’s application and to be aware of the existence of legal proceedings in which he may assert his rights, either by defending a pending action or, as was the case in the matter giving rise to the judgment in Hengst Import , by challenging a judgment delivered on the basis of an ex parte application.
67. Article 34(2) of that regulation departed from the requirement in Article 27(2) of the Brussels Convention that the document instituting the proceedings be duly served, in order to place the emphasis on effective observance of the rights of the defence, which are considered to have been observed when the defendant is aware of the pending legal action and has been able to commence proceedings to challenge a judgment entered against him (see, to that effect, ASML , paragraphs 20 and 21).
73. In the light of all the foregoing considerations, the term ‘document to be served’ in Article 8(1) of Regulation No 1348/2000, where such a document is a document instituting the proceedings, must be interpreted as meaning the document or documents which must be served on the defendant in due time in order to enable him to assert his rights in legal proceedings in the State of transmission. Such a document must make it possible to identify with a degree of certainty at the very least the subject‑matter of the claim and the cause of action as well as the summons to appear before the court or, depending on the nature of the pending proceedings, to be aware that it is possible to appeal. Documents which have a purely evidential function and are not necessary for the purpose of understanding the subject-matter of the claim and the cause of action do not form an integral part of the document instituting the proceedings within the meaning of Regulation No 1348/2000.
76. If the national court considers that the content is inadequate in that regard on the ground that certain necessary information relating to the application is to be found in the annexes, it must endeavour to resolve that problem in accordance with its national procedural law, taking care to ensure the full effectiveness of Regulation No 1348/2000, in compliance with its objective (see, to that effect, Leffler , paragraph 69), while according maximum protection to the interests of both parties to the dispute.
77. The party issuing the document instituting the proceedings could thus be afforded the opportunity of remedying the lack of a translation of an essential annex by forwarding one as soon as possible in accordance with the rules laid down in Regulation No 1348/2000. The Court has held that 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 Regulation No 1348/2000 ( Leffler , paragraphs 65 to 67) in order to protect the parties’ interests.
80. In order to establish whether the addressee of a document served understands the language of the Member State of transmission in which the document is written, the court must examine all the relevant evidence submitted by the applicant.
85. Nor is it possible to accept IHK’s interpretation. In order for Article 8(1)(b) of Regulation No 1348/2000 to be effective, the competent court must verify that the requirements of that provision are in fact met. The fact that a clause has been signed which provides that a particular language is to be used for correspondence and performance of the contract cannot give rise to a presumption of knowledge of the agreed language.