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Refusal to accept the document to be served between EU Member States

2015-06

Service of documents is a procedural element, which, if done improperly, can lead to violation of important procedural rights of the parties and such violation can later be a reason for an appeal against the judgement.

Croatia is the party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters from 1965 (“The Convention 1965”) and the provisions thereof are applicable for service of documents between Croatia and other states that are parties of the Convention 1965 and which are not European Union (“EU”) Member States.

With regard to the service of documents in civil and commercial matters between EU Member States the Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (“service of documents”), and repealing Council Regulation (EC) No 1348/2000 (“The Regulation”) is directly applicable in Croatia as of 1 July 2013.

The Regulation is applicable in civil and commercial matters and its application does not extend to revenue, customs or administrative matters.

The Regulation shall also not apply if the address of the person to whom the document is to be served is not known.

The Regulation provides for different methods of service between Member States: via transmitting and receiving agency, via consular or diplomatic officials, via post or directly.

It is important that the parties are familiar with their procedural rights under the Regulation in order to be able to protect them effectively.

Namely, the person to whom the document is being served should be duly informed that he/she has the right to refuse to accept the document already upon service or by returning the document to the receiving agency within one week (7 days) if the document is not written in, or accompanied by a translation into, a language, which that person understands or an official language of the Member State addressed.

If there are several official languages in a Member State it is sufficient that the document is written in or translated into an official language of the place where the service is to be performed.

In any event, even if the person is not duly informed about it, he/she has the right to refuse to accept the document to be served under above stated conditions with regard to all methods of service provided by the Regulation.

In practice, the above would mean that, for example, a legal person having registered seat in Brussels, Belgium can refuse to accept a lawsuit if the lawsuit is written in Croatian language where the person doesn’t understand Croatian and the lawsuit is not accompanied by a translation to Dutch or French nor to some other language, which the person understands. This means, that although English is not an official language in Brussels, a translation to English would be sufficient for proper service if the person understands English. In the latter case a possible issue could arise if one would need to prove that the person served with the document understands English if the service was refused.

By refusing to accept the document without the appropriate translation, the service is in fact only temporary delayed since the service of the document can be corrected by repeated service that would include translation.

The documents and all papers that are transmitted shall be exempted from legalisation or any equivalent formality.

Consequently, the Regulation, unlike the Convention 1965, explicitly provides for the rule that permits the refusal of accepting the service of document if the document does not comply with conditions stipulated by the Regulation regarding languages in which it is written or regarding corresponding translation. However, since the objective of the Regulation is increasing efficiency of court proceedings and enabling faster document transmission between Member States, the Regulation provides for a deadline of maximum 7 days within which the addressee is authorised to refuse to accept the document to be served.

Authors

Picture of Sandra Lisac
Sandra Lisac
Partner
Zagreb