Problems regarding service of judicial and extrajudicial documents are extremely relevant in practice; the new “Regulation (EU) 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters” (the Regulation) will probably not change this. Due to the practical importance of proper service, it is worth taking a preparatory look at the possible ways of service under the new Regulation, which applies as of 1 July 2022.
What’s new?
The Regulation seeks to improve the effectiveness and speed of judicial procedures by simplifying the service of judicial and extrajudicial documents in the EU. It aims to establish fast-track channels and uniform procedures for purposes of service. Compared to the 2007 version (Regulation (EC) 1393/2007, the 2007 Regulation), it has only been significantly revised in some parts. Although the new version is longer than the 2007 Regulation, it maintains the basic distinction between service by mutual legal assistance and direct service by post, as well as service by diplomatic and consular channels and service by public officers.
A major change and new means of service is electronic service provided for by Article 19 aimed at reducing time required for service. It has to be noted that Article 19 does not stipulate any binding minimum technical requirements for the electronic means of service.
Article 19 of the Regulation provides for two ways of electronic service: (i) by means of a qualified electronic registered delivery service (in Germany so far possible as De-Mail, but this has not proved practicable) and (ii) by simple e-mail. In both cases, the addressee must give his or her prior express consent, whereby in the former case abstract consent, i.e. consent generally related to court proceedings, is sufficient. If a qualified service is not used, it depends (solely) on the recipient's express consent vis-à-vis the court in the specific proceedings (i.e. after their commencement). In addition, the addressee must have acknowledged receipt of each document. The addressee may do this "by signing and returning an acknowledgement of receipt or by returning an email from the email address furnished by the addressee for service"; the acknowledgement of receipt may also be signed electronically (recital 33). Article 19(2) of the Regulation allows Member States to impose additional conditions for service by simple e-mail, such as the identification of the sender and the recipient, the integrity of the documents sent and the protection of the transmission against outside interference (see also recital 33).
On 10 June 2022, the German legislator has adopted a draft bill for the implementation of the new Regulation. The German implementing law, however, exclusively admits service by means of a qualified electronic registered delivery service (Art. 19 lit. a of the Regulation). Therefore it is questionable whether the intended simplification of service will be achieved in Germany. Moreover, it is unclear, whether German law is compatible with the Regulation. This depends on the interpretation of Article 19 of the Regulation and whether the Regulation imposes Member States to provide for both ways of electronic service or if it is sufficient if Member States’ law allows only for one way of electronic service. In the former case, German law would be incompatible with EU law taking precedence over national law (principle of primacy of EU law since the Costa/ENEL decision, Case 6/64, ECR 1964, 1215). As of 1 July 2022, the EU Regulation applies directly in the Member States pursuant to Art. 288 (2) TFEU. Unlike in the case of directives, there is no need for implementation into the national law of the Member States. Since Germany did not make use of the authorisation of further provisions on the authorisation of simple e-mail with the implementing law (Art. 19(2)), but instead wants to oppose the general possibility, the Regulation would supersede the opposing implementing law. As a consequence, German courts would have to disregard the new section 1068 ZPO with regard to the exclusion of service by simple e-mail.
Recast “light”
Each Member State is still free to allow service by postal services under the new Regulation (recital 29). This is the most relevant form of service in practice. The new Regulation does not contain any significant changes - service by post can continue to be effected by registered letter with acknowledgement of receipt or by means of equivalent proof (Article 18).
As was already the case under the 2007 Regulation, direct service on addressees in Germany will only be admissible if German civil procedure law expressly permits direct service (see Article 20 of the Regulation and Section 166(2) of the Code of Civil Procedure, Sections 191 et seq. of the Code of Civil Procedure). It is particularly provided for in compulsory enforcement and for attachment orders.
If the address of an addressee is not known to the party wanting to effect service, the provision in Article 7 of the Regulation is intended to provide assistance in determining addresses in the future.
Refusal of acceptance on the grounds of language is independent of the chosen method of service and will presumably continue to be a focal point in practice. The main change here is that the refusal of acceptance is now permitted for a period of two weeks (instead of the previous one week) (Article 12(3) of the Regulation). Recital 26 also provides helpful indications for checking whether the conditions for refusal of acceptance due to lack of language skills are met. However, the legislator still does not specify whose language skills are to be decisive, for example, in the case of a legal person.
Regarding service by mutual legal assistance, in the future, the Member States will use a decentralised IT system to transmit documents. This system has yet to be developed, which is why the corresponding regulations will only enter into force at a later date (according to Article 37(2) of the Regulation, three years after the entry into force of the implementing acts).
Conclusion
The new Regulation does not bring about major changes to the current legal system of cross-border service of documents. The major innovation regarding electronic service will continue to depend on the conditions provided for by the national law of the Member States without having a unified approach. Therefore, the speed of service will continue to vary across Member States. However, the new Regulation enhances and improves digitised cooperation between Member States.
