Catlin Europe SE v O. K. Trans Praha spol. s r. o.
Date: 2018-09-06
32


In this connection the Court has repeatedly held that the ability 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; order of 28 April 2016, Alta Realitat, C‑384/14, EU:C:2016:316, paragraph 61; and judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 50).
33


As the Court has also pointed out, the right to refuse to accept a document to be served stems from the need to protect the rights of 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. 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 defence of the addressees of the documents in question (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 51 and the case-law cited).
34


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 effectively to prepare his defence and assert his rights in the Member State of transmission (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 52 and the case-law cited).
35


For the right of refusal in Article 8(1) of Regulation No 1393/2007 to be effective, the addressee of the document must be duly informed in advance, in writing, of the existence of the right (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 53 and the case-law cited).
36


In the system established by that regulation, that information is provided to him by means of the standard form in Annex II to the regulation (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 54 and the case-law cited).
37


As regards the scope which must be given to that standard form, the Court has held that Regulation No 1393/2007 does not provide for any exceptions to its use (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 55 and the case-law cited).
38


From that consideration and from the aim pursued by the standard form in Annex II to Regulation No 1393/2007, as described in paragraphs 35 and 36 above, it may be deduced that the authority responsible for service 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 the document, by using systematically for that purpose that standard form (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 56 and the case-law cited).
49


As regards the second part of the question, relating to the consequences of failure to comply with that obligation, it is settled case-law that failure to attach the standard form in Annex II to Regulation No 1393/2007 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 direct, rapid and effective means of transmission between Member States of documents in civil and commercial matters (judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 57 and the case-law cited).
50


On the other hand, as the communication of that standard form is an essential formal requirement intended to safeguard the rights of defence of the addressee of the document, its omission must be remedied in accordance with the provisions of that regulation. The authority responsible for service must therefore immediately inform the addressee of the document of his right to refuse to accept it, by transmitting to him the standard form, pursuant to Article 8(1) of that regulation (see, to that effect, judgment of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 58 and the case-law cited).
53


Furthermore, according to the Court’s case-law, in the case of irregular service such as that at issue in the main proceedings, the European order for payment has not validly become enforceable and the period in which the defendant may lodge a statement of opposition has not started to run (see, by analogy, judgment of 4 September 2014, eco cosmetics and Raiffeisenbank St. Georgen, C‑119/13 and C‑120/13, EU:C:2014:2144, paragraphs 41 to 43 and 48).