Krystyna Alder and Ewald Alder v Sabina Orlowska and Czeslaw Orlowski.
Date: 2012-12-19
20. In that regard, it must be pointed out that the wording of Article 1(1) of Regulation No 1393/2007 makes it clear that that regulation is to apply in civil and commercial matters ‘where a judicial … document h as to be transmitted from one Member State to another for service there.’
24. It thus follows from a systematic interpretation of the regulation in question that that regulation provides for only two circumstances in which the service of a judicial document between Member States falls outside its scope, namely (i) where the permanent or habitual residence of the addressee is unknown and (ii) where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place.
25. In other situations, as the Advocate General has noted in point 49 of his Opinion, where the person to be served with the judicial document resides abroad, the service of that document necessarily comes within the scope of Regulation No 1393/2007 and must, therefore, be carried out by the means put in place by the regulation to that end, as provided for by Article 1(1) thereof.
27. To leave the national legislature with the task of determining in which cases such a requirement is present would prevent any uniform application of Regulation No 1393/2007, since it is possible for the Member States to provide for different solutions in this respect (see, in this sense, Case C-443/03 Leffler  [2005] ECR I-9611, paragraph 44).
29. In that regard, concerning, first, the scheme of Regulation No 1393/2007, it must be borne in mind that that regulation, which was adopted on the basis of Article 61(c) EC, seeks, as stated in recital 2 in the preamble thereto, to establish a system for intra-Community service the purpose of which is the proper functioning of the internal market (see, in this sense, Case C-14/08 Roda Golf & Beach Resort  [2009] ECR I-5439, paragraphs 53 to 55).
30. In this context, in order to guarantee efficiency and speed in judicial procedures, Article 2 of that regulation, read in the light of recital 6 in the preamble thereto, provides that the service of judicial documents is, in principle, to be effected between the ‘transmitting agencies’ and the ‘receiving agencies’ designated by the Member States.
31. In addition, Regulation No 1393/2007 itself provides, in its Section 2, for other possible means of transmission, but without establishing a hierarchy between them (Case C-473/04 Plumex  [2006] ECR I-1417, paragraphs 19 to 22), such as the transmission by consular or diplomatic channels, as well as service by diplomatic or consular agents, service by postal services, or even directly through the judicial officers, officials or other competent persons of the Member State addressed.
32. However, as those means of transmission of the judicial documents were the only ones laid down in an exhaustive manner in the scheme established by that regulation, it is clear that it does not provide any place for, and therefore precludes, a procedure for notional service such as that in force in Poland by virtue of Article 1135 5  of the Code of Civil Procedure.
34. It is necessary to point out, in this regard, that the regulation, as is apparent from recital 2 in the preamble thereto, has, admittedly, the objective of improving and expediting the transmission of judicial documents between Member States (see, in this sense, Case C-14/07 Weiss und Partner  [2008] ECR I-3367, paragraph 46, and Roda Golf & Beach Resort , paragraph 54).
35. However, as the Court has already held, those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights 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, in this sense, Weiss und Partner , paragraph 47).
36. From that point of view, as the Advocate General has noted in points 46 and 47 of his Opinion, several provisions of Regulation No 1393/2007 expressly seek to reconcile the efficiency and speed of the transmission of judicial documents with the need to ensure that the rights of the defence of the addressees are adequately protected, through, inter alia, the guarantee of actual and effective receipt of those documents.
41. Indeed, as the Advocate General has noted in points 52 to 54 of his Opinion, that system deprives of all practical effect the right of the person to be served, whose place of residence or habitual abode is not in the Member State in which the proceedings take place, to benefit from actual and effective receipt of that document because it does not guarantee for that addressee, inter alia, either knowledge of the judicial act in sufficient time to prepare a defence or a translation of that document.