When legal processes have a cross-border element, this often delays and complicates proceedings considerably, even within the EU. The new versions of the EU Service Regulation (in Germany: EuZVO) and the EU Regulation on the Taking of Evidence (EuBVO), which have been in force since 01.07.2022, aim to contribute to simplification and acceleration.
Untraceable recipients
One of the core problems of cross-border service of documents is certainly that the addressee simply cannot be found abroad. In such cases, the European legal systems make use of very different mechanisms: In Germany, for example, service is effectuated publicly, which means nothing more than that a notice to that effect is placed in display boxes specially provided for that purpose at local courts.
In cross-border service, however, this is not an option, so that the European legislator had to find other solutions and has found them: If the addressee’s whereabouts are unknown, the authorities of the member states are obliged, in contrast to the previous situation, to provide assistance in determining the address or to indicate the possibility of public service. What this assistance looks like can be gathered from a specially created court atlas.
Electronic service
It is often objected, quite rightly, that documents can simply be “served” by e-mail, especially abroad. And this, too, is made possible by the new version of the regulations. Of course, such service by e-mail is subject to the recipient’s prior consent and confirmation of the service of the document and the date of service. Regrettably, the legislator has given the member states the option of imposing additional requirements on such electronic service, presumably to ensure the security of the transmission. As a result, the German legislator has completely excluded service by e-mail. Corresponding preliminary ruling proceedings before the ECJ are therefore already foreseeable.
Direct delivery
In day-to-day business, however, direct service is likely to be predominant. In the cross-border variant, such direct service occurs if the person initiating service directly instructs the foreign service organ to effect service. What is considered normal in domestic legal relations – the court serves the parties’ pleadings on each other – is difficult in legal relations with foreign countries. It should be noted that such direct service is only possible if it is also admissible under the law of the receiving state.
In light of this, the German legislator’s view, that – especially in the case of incoming service – only those documents can be served directly, that functionally correspond to those for which German civil procedure law expressly permits direct service, may seem understandable.
This German restriction is not necessary, however, because in the cases in question a bailiff takes over the service anyway and thus the sovereign character of the service is immediately recognisable. For service abroad, the aforementioned court atlas will now provide further assistance, which should reveal comparable variations in other member states.
Translations
For the practically most pressing question of translation, the previous regulation already offered a rather sophisticated system, which is now being continued. In essence, the Regulation does not require a translation of the documents to be served, even if it is clear that the addressee does not know the language of the documents. The protection of the addressee is ensured by the fact that he decides whether to refuse acceptance or to accept service. The addressee is informed of these options on a form specifically designed for this purpose.
If the addressee refuses to accept the documents, the protection of the person who initiated service becomes relevant, which is essentially realised by the fact that the initiator can then obtain translations at his own expense and the renewed transmission with the corresponding translation has retroactive effect to the time of the first, translationless service. The system goes one step further on the question of time limits: For time limits to be observed by the addressee, the date of service with translation applies, for time limits of the initiator of service, the first attempt at service applies.
Lack of proof of service not an obstacle to proceedings
It is immediately obvious that effective service of the claim on the defendant, for example, must be one of the pillars of every civil action. Those who now expect a stalemate if the opposing party simply does not engage in the process underestimate the European legislator. According to the Regulation, courts may decide even if the opponent does not react at all.
The essential prerequisite is that the document in question was properly served in accordingance with the law of the receiving member state. Of course, this requires corresponding proof, which is easy to obtain in some Member States. This lapse on the part of individual Member States should not be to the detriment of the party required to be served under the new version of the Regulation: Member States may allow their courts to deliver a judicial decision even if no proof of service can be obtained.
To do so, a period of six months must have expired and “reasonable steps” must be taken to obtain proof of service. These “reasonable steps” also expressly include the use of “modern communication technology”; the addressee may therefore have to be informed of the procedure via his or her available social media profiles, by e-mail, and/or text message.
Cross-border taking of evidence
Once the proceedings have been successfully initiated, it is often necessary to take evidence, which in cross-border legal relations is regulated by the EuBVO.
Until now, the EuBVO has known two methods of taking evidence. It was either requested to take evidence by way of mutual assistance, in which the trial court asked the court of another Member State to take evidence, in particular to hear a witness. Or, on a voluntary basis, a direct taking of evidence took place, in which the trial court conducts the taking of evidence in the other state itself, i.e. it makes an inspection there or hears a witness.
The latter direct taking of evidence is now facilitated. Since the prerequisite of authorisation by the competent authorities of the respective Member State caused considerable problems in the past, for example because such requests were often processed slowly or not at all, there is now a presumption of authorisation: The court requesting authorisation may at first send a reminder to the competent authorities after 30 days. If this reminder is not answered within 15 days after acknowledgement of receipt, it is now presumed that the request for direct taking of evidence by the foreign authorities has been granted.
Just as in the case of service by e-mail, modern technology can then also play a significant role in the direct taking of evidence. In particular, videoconferences, in which the court can directly question persons providing evidence and also obtain its own direct impression, especially in the case of witnesses, are now to form the standard case of a cross-border hearing of witnesses. Such a hearing by way of videoconference is only possible if the necessary technology is available and the court considers this to be “appropriate”.
Finally, the legislator falls back on the venerable legal institution of international law. With the new version, consular hearings in another Member State are also possible in all those cases in which the person to be heard has the nationality of the requesting state. If Germans living abroad are to be questioned by a court, they no longer have to travel to Germany but can also be questioned at the consulate.