Service of Documents

Marie-Odile Baur1, who is a magistrat, worked for a number of years in the European and International Affairs Department of the French Justice Ministry. While there, she prepared the draft Convention on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil Commercial Matters. She took part in the Council negotiations for the adoption of the convention and subsequently for its conversion into a Community regulation.

Ms Baur is a national expert currently seconded to the Directorate-General for Justice and Home Affairs of the European Commission, with responsibility for draft Community instruments on civil law matters.

I. Introduction

As a foundational stage in the creation of a European judicial area, the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 2 already required that a court seised of a 'Community' dispute should stay the proceedings so long as it was not shown that the defendant had been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, or that all necessary steps had been taken to this end. It also provided that the recognition and enforcement of a judgment could be refused, where it was given in default of appearance, if the defendant was not fully served with the document which instituted the proceedings in sufficient time for him to arrange for his defence.

The smooth functioning of the convention presupposes due respect for the rights of the defence, which is a fundamental principle of the law of all Member States of the European Community.

In practice, failures regularly occurred in the operation of the arrangements for transmitting judicial documents from one Member State to another for the purposes of service, and preliminary discussions on this matter started in the early 1990s.

At the time, civil judicial documents were transmitted between Member States in accordance with several Hague conventions, particularly the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, to which most of the Member States were party, or under various bilateral agreements.

There was a wide variety of procedures for transmitting documents: in addition to the six methods laid down in the 1965 Hague Convention, there were those in the bilateral agreements.

This inevitably caused uncertainty among practitioners over the choice to be made between the various possibilities open to them.

In addition while some agreements allowed direct transmission between courts in different Member States, it was sometimes found that the competent central administrations had not put in place any reliable means whereby those involved locally could be made aware of the contact details of their counterparts abroad.

As to the internal arrangements applied by some Member States for transmitting documents to another Member State, these sometimes involved up to three intermediate steps between the drafter of the document and the office responsible for sending it abroad. This naturally led to considerable delays, so much so that the period...

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