Study on the Service of Documents – Comparative Legal Analysis of the Member States’ Relevant Provisions and Practices and Minimum Standards
Regulation 1393/2007 of 13 November 2007 on the service of judicial and extrajudicial documents in civil and commercial matters (the “Regulation” or the “Service Regulation”) has proven to be a successful means of improving judicial cooperation and transmission of documents within Europe and to function fairly well in practice. However, as the Commission Report of 4 December 2013 on the application of Regulation 1393/2007 expressly states, some obstacles still remain, particularly with reference to substantive matters related to service (which, apart some exceptions, are not directly regulated by European instruments) and in those areas where national practices diverge.
In addition, commentators and practice have identified critical issues in the practical application of the Regulation.These issues, in turn, directly impact on European citizens’ ability to access a rapid and cost-effective justice as well as on the protection of the right to be heard and, more in general, on legal certainty. The need to address these obstacles in the transnational context becomes compelling when circulation of judgments in Europe is gradually becoming easier and exequatur procedures are being abolished.
Against this backdrop, the objective of the proposed study is three-fold:
To survey, collect and make available information and data on national rules and practices relating to the service of documents, with emphasis on transnational service and on those domestic rules that have an impact on or are applied in connection with transnational service;
To identify obstacles to service originating in diverging national practices or country-related specificities and related issues;
To propose recommendations to be implemented at the national or European level, including by way of common rules, principles, best practices or minimum standards, to achieve a higher level of efficiency and uniformity in the service of judicial or extra-judicial documents between Member States.
These recommendations would also include proposals on how the Regulation could potentially be revised in order to enhance the attainment of its goals if the findings of the study support such proposals.
The purpose is, thus, first to gain knowledge of how different Member States deal with service of process, both at a theoretical and normative as well as at a more practical – but of utmost importance – level.
Secondly, to employ this knowledge to put forward reasoned and circumstantiated proposals and recommendations enhancing the existing regime of service of documents, including by setting minimum standards or highlighting best practices that should be followed by all national authorities.
It should be highlighted that there are two levels of issues and that the project will cover and address both: (i) problems in the rules of the Regulation and their domestic legal implementation (gaps and divergences, problems with the interplay between the national system of service and transnational rules); and (ii) local problems in practice (including issues of resources, knowledge, training, guidance, as well as how the actors respond in practice to problems of interplay or gaps in the system).