knowledge 6 October 2022 |

You’ve been served!  Service of judicial and extrajudicial documents between Member States under the new EU Service Regulation

The Recast Service Regulation aims to improve the efficiency and speed of transmitting and serving documents thus reducing delays and costs for individuals and businesses while ensuring security and protection of those documents, safeguarding the rights of addressees and respecting privacy and personal data. It also aims to provide greater legal certainty and simpler, digitalised procedures, encouraging individuals and businesses to engage in cross-border transactions, thereby boosting trade within the Union and the functioning of the internal market.

Methods of Service in Ireland

Except for the introduction of electronic service mentioned below, the Recast Service Regulation does not extensively amend the 2007 Regulation. In fact the Recast Service Regulation still provides for broadly the same methods of transmission and serving of documents as under the 2007 Regulation, particularly transmission through transmitting and receiving agencies. The Recast Service Regulation also retains provisions relating to service by postal services, direct service and transmission by consular or diplomatic channels, although regard should be had to the law of the Member State in which service is sought to ensure these alternative means are available.

In Ireland, Order 11D of the Rules of the Superior Courts (the “Rules”) governs cross-border service pursuant to the 2007 Regulation. These Rules were last updated in April 2019, so they pre-date the introduction of the Recast Service Regulation. We expect that the Order will soon be amended to reflect the changes introduced by the Recast Service Regulation.

1. Electronic Service (Article 19)

The possibility of effecting service of documents directly by electronic means on an addressee with a known address in another Member State is a significant new means of service provided for under Article 19 of the Recast Service Regulation.

Article 19 does not stipulate any binding minimum technical requirements for electronic service however a number of conditions apply, including the need for prior express consent from the addressee.

Other attempts to digitise and therefore modernise service within the EU involve:

• e-CODEX (Article 5)
  
  The Recast Service Regulation envisages that in the transmission of documents, there be mandatory recourse by Member State designated agencies and bodies, to a secure decentralised digital infrastructure provided via the e-CODEX system;  

• Electronic signature of deeds, documents, and forms (Article 5(3))
  
  Where documents to be served require or feature a seal or handwritten signature, qualified electronic seals or qualified electronic signatures (signatures as defined in Regulation (EU) No 910/2014) may now be used instead pursuant to Article 5(3).

2. Service of documents through transmitting and receiving agencies (Articles 3, 8 & 10)

Each Member State must designate a transmitting agency, a receiving agency and a central body to assist the transmitting agencies. An applicant who wishes to serve documents on a defendant within the EU must make an application to the transmitting agency.  The transmitting agency in the applicant’s Member State sends the documents to the receiving agency in the defendant’s Member State who then arranges for the service of the document on the defendant.

The documents should be translated into the language of the receiving state or language which is understood by the defendant if necessary.

Since April 2019, the designated transmitting agency in Ireland has been the Combined Court Office, Castlebar, County Mayo.  

3. Service by postal services (Article 18)

Article 18 allows for the service of judicial documents to be effected directly by postal services on persons in other Member States. Whilst the Irish High Court in Grovit v Jansen¹ had held that individuals were not permitted to serve documents by registered post, the updated wording under the Recast Service Regulation suggests a change.  In comparison with the equivalent provision under the 2007 Regulation which provided that each Member State was free to effect postal direct service (Article 14) the Recast Service Regulation omits any reference to ‘Member States’, although Recital 29 in the Recast Service Regulation continues to use that language so it remains to be seen whether Article 18 alters the position or not. 

4. Direct Service (Article 20)

As an alternative to postal delivery, under the Recast Service Directive any person interested in a judicial proceeding may effect direct service of judicial documents.

The limitations that previously applied under Article 15 of the 2007 Regulation continue to apply under Article 20 of the Recast Regulation:

1. the documents are to be served through judicial officers, officials or other competent persons of the state addressed; and

2. this form of service is only permitted where that Member State addressed has permitted such direct service.

Ireland has notified the Commission that direct service is permitted in Ireland. Solicitors and summons servers are permitted to effect the direct service of documents in Ireland.  The Commission has made that information available through the European e-Justice Portal which contains an overview of how the Recast Service Regulation interacts with Member States’ domestic legislative landscape.

Defendant not entering an appearance (Article 22)

Where a party is served under the Recast Service Regulation and a defendant has not entered an appearance, judgment will not be given until it is established that service was effected in sufficient time for the defendant to enter a defence and that the document was validly served under the law of the Member States addressed for service or it was validly served in line with the Recast Service Regulation.

Concluding remarks

The Recast Service Regulation does not endeavour to bring about major changes in relation to the cross-border service of documents. It is, fundamentally, a ‘smartening up’ of current practices; to expedite, electronicise and improve the effectiveness of current judicial processes.

It is too soon to provide any meaningful conclusion on the efficacy of this Regulation in relation to its aims.  Certain practicalities with regard to the means of communication to be used by transmitting agencies, receiving agencies and central bodies, the transmission of documents and the receipt of documents by receiving agencies will apply at a later date and some of the more material provisions (such as mandating the use of the decentralised IT system as means of communication for transmission/receipt of requests etc.) will only start applying from May 2025.

In addition, much of the innovation regarding electronic service will continue to depend on the practical implementation by the national law of the Member States. Without a unified approach, the permitted methods and speed of service of documents will continue to differ from Member State to Member State.

Also contributed by Ellen Maguire