Alpha Bank Cyprus Ltd v Dau Si Senh and Others.
Date: 2015-09-16
28. The scope of that provision must therefore be determined having regard to its context. To that effect, it is necessary to examine the objectives pursued by Regulation No 1393/2007 and the system established by it, of which Article 8 forms part (see, to that effect, judgment in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 45).
29. As far as concerns, in the first place, the objectives of Regulation No 1393/2007, it should be noted that that regulation, which was adopted on the basis of Article 61(c) EC, seeks, as is apparent from recital 2 in the preamble thereto, to establish a system for intra-Community service of judicial and extrajudicial documents in civil or commercial matters, for the purpose of the proper functioning of the internal market (see judgments in Alder , C‑325/11, EU:C:2012:824, paragraph 29, and Fahnenbrock and Others , C‑226/13, EU:C:2015:383, paragraph 40).
30. Therefore, with the aim of improving the efficiency and speed of judicial procedures and ensuring proper administration of justice, that regulation establishes the principle of direct transmission of judicial and extrajudicial documents between the Member States (see judgment in Leffler , C‑443/03, EU:C:2005:665, paragraph 3), which has the effect of simplifying and accelerating the procedures. Those objectives are noted in recitals 6 to 8 in the preamble to that regulation.
31. However, as the Court has already held on numerous occasions, 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 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, inter alia, judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 35 and the case-law cited).
32. In that regard, it is important 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 assert his rights in the Member State of transmission (see, to that effect, judgment in Alder , C‑325/11, EU:C:2012:824, paragraphs 36 and 41, and, by analogy as regards Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 2000 L 160, p. 37), which preceded Regulation No 1393/2007, judgment in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraphs 64 and 73).
33. With this in mind, it will thus be necessary to interpret Regulation No 1393/2007 so as, in each specific case, to guarantee 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 (see judgments in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 48, and Alder , C‑325/11, EU:C:2012:824, paragraph 36).
34. As far as concerns, in the second place, the system established by Regulation No 1393/2007 in order to attain those objectives, it should be noted that, as results from a combined reading of Articles 2 and 4(1) of that regulation, read in the light of recital 6 in the preamble thereto, the service of documents is, in principle, to be effected between the ‘transmitting agencies’ and the ‘receiving agencies’ designated by the Member States (see judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 30). Under Article 4 of that regulation, the document or documents to be served are to be transmitted directly and as soon as possible, by any appropriate means, by the transmitting agency to the receiving agency.
42. In that regard, after initiating the procedure for service by defining the relevant documents to that effect, that court will rule only after the addressee of a document has effectively refused to accept it on the ground that it was not drafted in a language which he understands or is expected to understand. Therefore, that court will be required to determine, at the request of the applicant, whether such a refusal was justified (see, by analogy, judgment in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 85). To that effect, it must take due account of all the evidence in the file in order to, first, determine the linguistic knowledge of the addressee of the document (see judgment in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 80) and, secondly, decide whether, in view of the nature of the document at issue, a translation of it is required.
45. In that regard, it must be pointed out, first, that Regulation No 1393/2007 does not contain any exceptions to the use of those forms.
49. In that regard, as is apparent from the wording itself of the title and contents of that form, the ability to refuse to accept the document to be served, as provided for in Article 8(1), is defined as a ‘right’ of the addressee of that document.
50. In order for that right conferred by the EU legislature to usefully produce its effects, the addressee of the document must be informed in writing thereof. 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 Regulation No 1393/2007, in the same way that the applicant is, from the beginning of the procedure, informed of the existence of that right on the part of the addressee of the document by means of the standard form set out in Annex I to that regulation.
54. The fact remains that the exercise of that right to refuse presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right.
57. Therefore, the above interpretation is such as to guarantee transparency by enabling the addressee of a document to know the extent of his rights and to allow uniform application of Regulation No 1393/2007 (see, by analogy, judgments in Leffler , C‑443/03, EU:C:2005:665, paragraph 46, and Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 60), without creating any delay in the service of that document, but, on the contrary, contributing to simplifying and facilitating that service.
58. It must therefore be held 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 systematically using for that purpose the standard form set out in Annex II to Regulation No 1393/2007.
The consequences of a failure to provide information using the standard form set out in Annex II to Regulation No 1393/2007
60. In addition, it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.
61. Moreover, concerning the consequences of the refusal by the addressee of a document to accept it on the ground that that document was not accompanied by a translation in a language which he understands or in the official language of the receiving Member State, the Court has already held, w ith respect to Regulation No 1348/2000, which preceded Regulation No 1393/2007, that it was necessary not to declare the procedure invalid, but to allow, by contrast, the sender to remedy the lack of the required document by sending the requested translation (see, to that effect, judgment in Leffler , C‑443/03, EU:C:2005:665, paragraphs 38 and 53).
62. That principle is now laid down in Article 8(3) of Regulation No 1393/2007.
63. A similar solution must be reached where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document.
64. The lack of that standard form and the refusal to accept a document in the absence of an appropriate translation are closely linked in so far as, in both situations, the exercise, by the addressee of such a document, of his right to refuse to accept the document at issue could be impeded.
65. It appears therefore appropriate to conclude that identical legal consequences must be applied to those two situations.
66. Moreover, to declare either the document to be served or the procedure for service invalid would be incompatible with the objective pursued by Regulation No 1393/2007, which consists in providing a means of direct, rapid and effective transmission between Member States of documents in civil and commercial matters.
67. In those circumstances, it must be possible to remedy the failure to provide information using the standard form set out in Annex II to Regulation No 1393/2007.
68. With regard to the details of such a solution, it should be noted that there are only two circumstances in which the service of a judicial document between Member States falls outside the scope of Regulation No 1393/2007: first, where the permanent or habitual residence of the addressee is unknown and, secondly, where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place (see judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 24).
69. By contrast, in other situations, where the person to be served with the judicial document resides in the territory of another Member State, the service of that document necessarily comes within the scope of that regulation 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 (see judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 25).
70. Consequently, it is necessary to rely only on Regulation No 1393/2007 in order to remedy an omission, such as that at issue in the main proceedings.
71. Such a solution is, in addition, supported by the need for uniform application of that regulation (see, to that effect, judgment in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 60 and the case-law cited).
72. In a situation such as that in the cases in the main proceedings, it is therefore for the receiving agency to inform without delay the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1) of Regulation No 1393/2007, the standard form set out in Annex II to that regulation.
74. In the event that court holds that the refusal to accept the document at issue is well founded, the translated version of that document must still be submitted to the addressees, in accordance with the procedure laid down in Regulation No 1393/2007 and, in particular, Article 8(3) thereof.