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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Alder v Orlowski [2012] EUECJ C-325/11 (20 September 2012)
URL: http://www.bailii.org/eu/cases/EUECJ/2012/C32511.html
Cite as: ECLI:EU:C:2012:824, EU:C:2012:824, [2012] EUECJ C-325/11
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OPINION OF ADVOCATE GENERAL
BOT
delivered on 20 September 2012 (1)
Case C-325/11
Krystyna Alder
Ewald Alder
v
Sabina Orlowska
Czeslaw Orlowski
(Reference for a preliminary ruling from the Sąd Rejonowy w Koszalinie (Poland))
(Service of judicial and extrajudicial documents – Regulation (EC) No 1393/2007 – Scope – Determination of cases in which a document must be sent from one Member State to another – National provision providing for deemed service by placing the document on the case file where the party domiciled in the territory of another Member State fails to appoint a representative domiciled in national territory authorised to accept service
1. The present reference for a preliminary ruling concerns the interpretation of 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. (2)
2. In particular, the question from the referring court is whether the Member States have freedom of action in deciding in which cases a document must be served by way of cross-border service in accordance with the arrangements laid down by Regulation No 1393/2007.
3. As the uniform application of the rules for the service of judicial documents in all Member States a represents a major contribution to the construction of a European judicial area, the technical aspect and the complexity of the subject, characterised by the labyrinth of national, international and Union-law rules and by the coexistence, within the legal system of the European Union itself, of the rules arising from Regulation No 1393/2007 and from other instruments, should not conceal the undoubted importance of this question, which gives the Court an opportunity to clarify the points of connection between national procedural laws and the legal system of the Union.
4. The present case arises from an action for payment brought on 20 November 2008 before the Sąd Rejonowy w Koszalinie (Poland) by Krystyna Alder and Ewald Alder, (3) who reside in Germany, against Sabina Orlowska and Czeslaw Orlowski, who reside in Poland.
5. The abovementioned court informed the claimants of their obligation to designate, within one month, a representative authorised to accept service of documents pursuant to Article 1-1355 of the Polish Code of Civil Procedure (Kodeks postepowania cywilnego), which provides that, failing the designation, by the party whose place of residence is abroad, of a representative who is authorised to accept service of documents, judicial documents addressed to that party will be placed in the case file and will be deemed to have been served.
6. As the claimants failed to designate a representative authorised to accept service of documents, their claim was dismissed by judgment of 5 June 2009 after a hearing at which they did not appear.
7. On 29 October 2009 the claimants lodged an application for the proceedings to be resumed and for the judgment to be set aside on the grounds that they had not been able to act as they had not in fact been summoned to the hearing and that the Sąd Rejonowy w Koszalinie, by failing to serve the judicial documents at their address in Germany, had breached the prohibition of discrimination on grounds of nationality. On 23 June 2010 that court dismissed their application.
8. On appeal by the claimants, the Sąd Okręgowy (Regional Court) in Koszalin (Poland) set aside the judgment and, taking the view that the fiction of service was contrary to Regulation No 1393/2007, referred the case back to the lower court for a fresh ruling.
9. The Sąd Rejonowy w Koszalinie, which does not agree with that conclusion, stayed the proceedings and requested the Court of Justice to give a preliminary ruling on the following question:
‘Are Article 1(1) of Regulation (EC) No 1393/2007 … and Article 18 TFEU to be interpreted as meaning that it is permissible to place in the case file, deeming them to have been effectively served, court documents which are addressed to a party whose place of residence or habitual abode is in another Member State, if that party has failed to appoint a representative who is authorised to accept service and is resident in the Member State in which the court proceedings are being conducted?’
I – The legal context
A – Union law
1. Article 18 TFEU
10. Article 18 TFEU provides:
‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.’
2. Regulation No 1393/2007
11. Regulation No 1393/2007, which repeals and replaces Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, (4) establishes a system for the service of judicial and extrajudicial documents in civil or commercial matters in the Member States of the Union. With the aim of expediting and facilitating the transmission of documents, Regulation No 1393/2007 provides for the transmission of documents directly and as soon as possible (5) between the transmitting and receiving agencies designated by the Member States, (6) while accepting other means of transmission (7) without establishing a hierarchy between them, (8) such as service by diplomatic or consular channels, in the case of exceptional circumstances, (9) service by diplomatic or consular agents, (10) service by post (11) or service through judicial officers at the request of any person interested. (12)
12. Recitals (6) to (9) of the preamble to Regulation No 1393/2007 are worded as follows:
‘(6) Efficiency and speed in judicial procedures in civil matters require that judicial and extrajudicial documents be transmitted directly and by rapid means between local bodies designated by the Member States.
(7) Speed in transmission warrants the use of all appropriate means, provided that certain conditions as to the legibility and reliability of the document received are observed. …
(8) This Regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party.
(9) The service of a document should be effected as soon as possible, and in any event within one month of receipt by the receiving agency.
13. Article 1 of Regulation No 1393/2007 provides:
‘(1) This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii).’
(2) This Regulation shall not apply where the address of the person to be served with the document is not known.
(3) In this Regulation, the term “Member State” shall mean the Member States with the exception of Denmark.’
14. Under the last paragraph of Article 26 of Regulation No 1393/2007, the Regulation ‘is binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community’.
B – Polish law
15. Under Article 1-1355 of the Polish Code of Civil Procedure:
‘1. A party whose place of residence or habitual abode or registered office is outside the Republic of Poland and who has not appointed, for purposes of the conduct of proceedings, an authorised representative resident in the Republic of Poland must appoint a representative who is authorised to accept service of documents in the Republic of Poland.
2. If no representative authorised to accept service is appointed, court documents addressed to that party shall be placed in the case file and shall be deemed to have been effectively served. The party must be notified to that effect at the time of the first service. That party must also be informed of the possibility of submitting a response to the document initiating the proceedings and written statements of position, and must also be informed of those persons who can be appointed as an authorised representative.’
II – My assessment
16. The question referred by the the Sąd Rejonowy w Koszalinie entails examining the compatibility of Article 1-1355 of the Polish Code of Civil Procedure with Union law from two points of view. First, it is necessary to ascertain whether the fiction of service in default of the designation of a representative is authorised in the light of Regulation No 1393/2007. Secondly, it is necessary to verify whether the provision at issue is consistent with the principle of non-discrimination laid down by Article 18 TFEU.
17. For the sake of clarity, I shall consider these two aspects of the question separately.
A – Examination of the provision at issue in the light of Article 1 of Regulation No 1393/2007
18. Under Article 1(1) of Regulation No 1393/2007, the Regulation is applicable ‘where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there’.
19. The Regulation was adopted on the basis of Article 61(c) EC, which authorises the Council to adopt measures in the field of judicial cooperation in civil matters only if they have ‘cross-border implications’ and the Regulation is applicable only to international service and not to internal service.
20. As Article 1 of the Regulation does not state the cases in which a document ‘has’ to be transmitted abroad for service there, the question arises as to whether it is left to each Member State to decide when a document has to be transmitted abroad for service or whether, on the contrary, it applies whenever the address of the addressee of the document to be served is in another Member State.
1. The parties’ arguments
21. The defendants in the main proceedings and the Polish and Italian Governments are in favour of the first alternative in claiming that, in accordance with the principle of procedural autonomy, Regulation No 1393/2007 merely regulates the implementation of the forms of service required by national laws of procedure.
22. The Polish and Italian Governments add that similar obligations to designate a representative authorised to accept service of documents exist in Union law. (13)
23. The Polish Government also considers that the institution of the representative authorised to accept service of documents, provided for by Polish law, has the same objectives of efficiency and rapidity of judicial procedures as those pursued by Regulation No 1393/2007.
24. The claimants, the Portuguese Government and the Commission opt in favour of the second alternative and submit that the arrangements for the service of documents provided for by Regulation No 1393/2007 apply if the party on whom the document is to be served resides in another Member State and his address is known.
25. For the claimants, by applying the Regulation to the first service only, the Polish national rule blocks the Community circulation of judicial documents, although Article 14 of the Regulation authorises service by post.
26. On the basis of the last subparagraph of Article 26 of Regulation No 1393/2007, the Portuguese Government considers that the provisions of the Polish Code of Civil Procedure can apply only to citizens who reside in a State outside the Union as the duty of transmission under the Regulation is entirely due to the fact that the residence, habitual abode or registered office of one of the parties is not situated in the Member State in which the action was brought, which confers a transnational character on the case, irrespective of national procedural law.
27. Although the Commission also considers that the obligation to designate a representative in Poland is not consistent with Regulation No 1393/2007, the Commission, which points out that the compatibility of Article 1-1355 of the Polish Code of Civil Procedure with Union law is the subject of a dialogue with the Polish authorities following a petition addressed to the Parliament, (14) devotes the greater part of its observations to the compatibility of that provision with Article 18 TFEU. The Commission argues that the obligation to designate a representative in Poland is incompatible with that Article because it amounts to indirect discrimination on the ground of nationality in so far as it generally affects nationals of other Member States who in many cases will not have a residence, habitual abode or registered office in Poland.
2. My assessment
28. In agreement with the position taken by the claimants, the Portuguese Government and the Commission, I consider that it is not consistent with Regulation No 1393/2007 to penalise, by means of a fiction of service, the failure by a party residing abroad to designate a representative, residing in Poland, who is authorised to accept service of documents.
29. Regulation No 1393/2007 repeals and replaces Regulation No 1348/2000, which originates from the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the service in the Member States of the European Union of judicial or extrajudicial documents in civil or commercial matters. (15) The 1997 Convention, which was intended to draw up an instrument to improve and expedite the transmission of judicial and extrajudicial documents between the Member States, did not enter into force as it was not ratified before the Treaty of Amsterdam entered into force.
30. Although it included certain innovations (16) in order, in particular, to safeguard the rights of the parties, the 1997 Convention was directly derived from the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, (17) which set up a system for administrative cooperation permitting the service of a document through a central authority responsible for receiving requests for service and taking the appropriate action. In addition, Article IV of the Protocol annexed to the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, (18) as amended by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, (19) set up as an optional means of transmission of judicial documents service by one public officer upon another public officer.
31. The 1965 Hague Convention is regarded as non-binding since it is applicable only if the national law of the State of the court before which the matter is brought decides that a document must be transmitted abroad for the purpose of service. Accordingly, the practical handbook on the operation of the Convention, edited by the Permanent Bureau of the Hague Conference on Private International Law, (20) states that a ‘brief look’ at the practice of the signatory States ‘appears to confirm, apart from a few exceptions, the non-binding nature of the [said] Convention’, (21) while adding, as if with regret, that, in order to achieve fully the aim of ensuring that the document served is actually brought to the notice of the addressee, the 1965 Hague Convention ought to have intervened in national law and itself laid down the conditions for valid service, which would have been the only means of eliminating forms of fictitious service such as service at the public prosecutor’s office.
32. However, I think that the far-reaching developments in the matter since it acquired a Community dimension entail a re-assessment of the relationship between the rules evolved from Regulation No 1393/2007 and national laws of civil procedure.
33. Indeed, it is necessary to take into account the development of the objectives of Union policy concerning judicial cooperation in civil matters and the aim of creating a European judicial area in order, first, to ensure the free movement of judicial and extrajudicial documents and, secondly, to safeguard fundamental rights.
34. Let me reconsider those two inseparable objectives in turn.
35. Regulation No 1393/2007 is in line with the creation of a European judicial area within which the free movement of judicial and extrajudicial documents must be ensured.
36. As the Court held in Case C-443/03 (22) and Case C-14/08, (23) the objective of the Treaty of Amsterdam of creating ‘an area of freedom, security and justice’, thereby giving the European Community a ‘new dimension’ and the transfer from the EU Treaty to the EC Treaty of the body of rules enabling measures in the field of judicial cooperation in civil matters having cross-border implications to be adopted testify to the will of the Member States to ‘anchor’ such measures firmly in the legal order of the Union. (24)
37. That ‘anchorage’ gives a new consistency to the cross-border system for the service of documents which contributes to the efficient operation of the internal market by ensuring the free movement of judicial and extrajudicial documents.
38. The aim of creating a European judicial area has also led the Union legislature to go further than the path of merely coordinating national procedures by making advances in setting up specific Community procedures for settling cross-border disputes more rapidly and efficiently, such as the European enforcement order for uncontested claims (25) and the European procedures for an order for payment (26) and for small claims. (27)
39. Although they do not go on to unify methods of service at the European level, these new instruments establish minimum standards in the light of which both Regulation No 805/2004 and Regulation No 1896/2006 make it clear that a method of service based on a legal fiction cannot be judged sufficient. (28)
40. While procedural acts in the territory of another Member State were traditionally considered to encroach upon the sovereignty of those States, those different regulations, by establishing minimum standards, amount to a gradual, but limited, waiver of certain attributes of sovereignty since they provide for the direct cross-border service of documents by post, (29) without giving the Member States the option of objecting to that means of transmission. In the same way, unlike the Hague 1965 Convention, which provides for the destination State in which enforcement is sought to object to the direct transmission of judicial documents by post to persons in its territory, (30) Regulation No 1393/2007 does not permit the Member State in whose territory the addressee resides to exclude it or even lay down the conditions for its use. (31)
41. Secondly, the creation of a European judicial area is inseparable from the general purpose of a Union of law which is constituted by the promotion of fundamental rights.
42. In particular, the new European judicial area has the objective of promoting the procedural safeguards which are components of the right to a fair hearing flowing from the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, while reconciling them with the imperatives of speed and efficiency of civil justice.
43. Following on from the European Council of Tampere on 15 and 16 October 1999 and the Hague programme adopted in 2004, in the Stockholm programme adopted in 2010 (32) the European Council stated that the main objective of the action taken in the field of the provisions of procedural law in civil cases consists in ensuring that the frontiers between the Member States do not constitute an obstacle to the settlement of civil cases or to the initiation of judicial procedures or the enforcement of judgments in civil cases. The European Council also stated that priority should be given to setting up procedures for easier access to justice so that citizens can assert their rights everywhere in the Union. Going further than traditional judicial cooperation, the construction of a ‘Europe of law and justice’ (33) therefore has the direct purpose of meeting the needs of individuals. (34)
44. The use of efficient methods of service is among the procedural safeguards of a fair hearing. The European Court of Human Rights considers that the ‘right to a court’ and the principle of equality of arms, inherent in a fair hearing, ‘covering the entire procedural law of the Contracting States … applies also to the particular field of the service of judicial documents on the parties’ (35) and that the obligation of the Contracting States ‘to organise their judicial system so that their courts can guarantee to every person the right to obtain a final judgment on disputes relating to that person’s rights and obligations of a civil nature within a reasonable period … also entails the establishment of efficient procedures for service ensuring that the parties are notified of the date of hearings in good time’. (36)
45. In Case C-14/07 (37) the Court, which had stated that the interpretation of Regulation No 1348/2000 could not be dissociated from the context of developments in the field of judicial cooperation in civil matters, which include that regulation, stressed the protection of the rights of defence in observing, by analogy with the approach taken for interpreting Regulation No 44/2001, that the objectives of Regulation No 1348/2000 of improving and expediting the transmission of documents ‘cannot be attained by undermining in any way the rights of the defence’, which ‘derive from the right to a fair hearing guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms’ and ‘constitute a fundamental right forming part of the general principles of law whose observance the Court ensures’. (38)
46. Several provisions of Regulation No 1393/2007 bear witness to the aim of creating a system for the service of judicial documents which is capable of safeguarding the right to a fair trial. The double-date system, which, where a document has to be served within a particular period, permits the law of the Member State of origin to be taken into account in order to determine the date with respect to the applicant, while taking account of the law of the Member State addressed in order to determine the date with respect to the addressee of the document, meets the requirement for balancing the interests of the parties. Protection for the addressee of the document is provided by the option which he has of refusing to accept the document if it is not translated into a language which he understands or into the official language of the Member State addressed. Protection is also provided by the court‘s obligation to stay judgment where the defendant does not enter an appearance and by the court’s power to relieve the defendant from the effects of the expiry of the time for appeal from the judgment if the defendant did not have knowledge of the proceedings in sufficient time to appeal, and if the defendant has disclosed a prima facie defence to the action on the merits.
47. The objective of protecting the rights of defence, which gave rise to Regulation No 1348/2000, is also assisted by the changes made to it by Regulation No 1393/2007 which, for example, improve the addressee‘s information by requiring him to be informed, by means of a standard form, that he may refuse to accept the document to be served at the time of service if it is not written in a language which he understands or in the official language of the Member State addressed. (39) Regulation No 1393/2007 likewise provides for greater certainty of receipt by providing for service of judicial documents to be effected by postal services by registered letter with acknowledgement of receipt or equivalent. (40)
48. Regulation No 1393/2007 must be interpreted in the light of those objectives while respecting the need for uniform application of its provisions. In that connection it must be observed that, while the Commission had at first presented a proposal for a directive to convert the 1997 Convention into a Community instrument, (41) the Commission followed the differing opinion of the Parliament, which had proposed legislating by way of a regulation, (42) in order to ensure the ‘rapid, clear and homogeneous implementation’ of the new provisions. (43) The choice of a regulation, rather than a directive, as the instrument for setting up the system, shows the importance which the Community legislature attaches to the ‘direct applicability’ of the provisions of Regulation No 1393/2007 and to their ‘uniform application’. (44)
49. In my opinion, the service of a judicial document must necessarily be effected in conformity with the requirements of Regulation No 1393/2007 where the addressee of the document resides in another Member State.
50. That interpretation is supported by the wording, the objectives and the general scheme of the Regulation.
51. First, that is indicated by a literal interpretation of Article 1 of Regulation No 1393/2007. Although Article 1 is ambiguous because it does not state in which cases a judicial or extrajudicial document ‘has’ to be transmitted from one Member State to another for service there, this must be read in conjunction with Article 1(2), which adds that ‘this Regulation shall not apply where the address of the person to be served with the document is not known’. As the case where the address of the addressee is not known is the only case where the application of Regulation No 1393/2007 is expressly excluded, it may be inferred by contrary reasoning that the Regulation applies in all cases where the addressee has a known address situated in another Member State.
52. Secondly, I think that to allow each Member State to continue to apply national provisions for notional service where the addressee resides in another Member State would compromise the objectives of the free movement of documents and the promotion of fundamental rights. In particular, it must be stressed that the inclusion of the rules for the service of judicial documents in the components of a fair hearing in order to guarantee, for the claimant, the right of access to the court and, for the defendant, the right to be informed in good time of the subject-matter and the ground of the claim so as to be able to defend himself, entails the prohibition of any method of notional service which has the consequence of depriving the parties of the rights of protection in Regulation No 1393/2007. A fiction of service such as that at issue in the main proceedings could, for example, have the effect of depriving a defendant residing in another Member State of the right to refuse to accept a document instituting proceedings which has not been translated into a language which he understands or the official language of the Member State addressed. (45)
53. Third, it appears from the general scheme of Regulation No 1393/2007 that the system for the service of documents which it establishes aims to ensure the actual and effective receipt of the judicial document by the addressee, which represents the common denominator of the different methods of service available to the Member States. From that viewpoint, service which is entirely fictitious on the basis of a legal presumption that the documents have been placed in the case file cannot be accepted. Therefore, contrary to the argument of the Polish Government, I do not think that the procedural device of fictitious service by the placing of the document in the case file can be validly compared with the procedures for the service of documents established by Regulation No 1393/2007.
54. The fact that the national law applicable to the main proceedings provides, with respect to the service of judicial documents, for a presumption which makes it unnecessary to serve the document at the true address of the party living abroad seems to me contrary to the letter, the purpose and the general scheme of Regulation No 1393/2007 and is likely to deprive it of practical effect by circumventing the system for the service of judicial documents which the Regulation establishes.
55. The judgment of 15 March 2012 in Case C-292/10 (46) corroborates that interpretation.
56. In that case, where the question was whether a provision of the German Civil Code (Zivilprozessordnung) for service by public notice of the document initiating the proceedings when the defendant’s address was not known was compatible with Union law, the Court laid down the conditions under which judgment could be given by default against the defendant on whom the document initiating the proceedings had been served by public notice in accordance with national law as it had not been possible to locate the defendant. Although the circumstances of the main proceedings were such that Regulation No 1393/2007 was not applicable because the defendant’s address was not known, (47) a consideration of the case provides two pointers which are relevant to the reply to be given to the question now referred.
57. The first point is that the Member States’ freedom of action to lay down procedural rules applicable to actions brought before their courts is necessarily limited by the obligation to observe Union law. Thus the Court itself has affirmed that ‘while, in the absence of systematic regulation of national procedures by European Union law, it is … for the Member States, in the context of their procedural autonomy, to lay down the procedural rules applicable to actions brought before their courts, those rules must not infringe European Union law’. (48)
58. The second point arising from the abovementioned judgment is that a method of service which does not aim to enable the addressee actually to receive the document, such as service by public notice, can be allowed only where the addressee’s address is not known and all investigations required by the principles of diligence and good faith have been undertaken to trace the addressee. (49) It follows that, by contrary inference, where the addressee’s address is known, the document must be served at that address.
59. The conclusion that Regulation No 1393/2007 precludes a fiction of service such as that provided for by the national measure at issue is, however, open to three objections which I now wish to refute.
60. The first objection relates to Article 1-1355 of the Polish Code of Civil Procedure which, while it institutes a fiction of service, also provides that, at the time of the first service, the parties are to be informed of the need to appoint a representative and of the possibility of seeking exemption from court costs and the designation of an authorised representative.
61. However, that warning does not seem to me to justify a derogation from the provisions of Regulation No 1393/2007 and to make the fiction of service, which does not meet the requirements of a fair hearing, acceptable. Apart from the fact that the Polish Government states that a first service is only ‘more often’ effected pursuant to that Regulation, from which it follows that it is not applied systematically, I think that the information given initially does not ensure that the parties will be given an opportunity to state their case and consequently it cannot make up for the lack of subsequent service of the judicial documents.
62. Furthermore, to allow a fiction of service on the pretext that the addressee was warned of the obligation to designate a representative to accept service of documents is not consistent with the principles of genuine cooperation and mutual trust, which imply that all judicial documents which must be served on an addressee residing in another Member State are to be served in accordance with the system established by Regulation No 1393/2007.
63. The second objection is based on recital (8) of Regulation No 1393/2007, which states that the Regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place, regardless of the place of residence of that party.
64. However, I consider that that exception which, furthermore, is set out only in a recital without being repeated or explained in a particular article, must be interpreted strictly and can refer, apart from to the appointment of an authorised representative, only to a voluntary address for service resulting from a manifestation of intention whereby the person whose address is given as the address for service is authorised to accept service of judicial documents.
65. The third objection, concerning the existence of provisions of Union law providing for the election of domicile, does not seem to me to be any more relevant.
66. It is true that both Regulation No 44/2001 and Regulation No 2201/2003 require the party seeking enforcement in a Member State of a judgment given in another Member State to give an address for service within the jurisdiction of the court before which the matter has been brought or to designate an authorised representative if the law of the Member State to which the request is addressed does not recognise the election of domicile.
67. However, I do not see how the existence at the European level of that arrangement, which is an exception to the ordinary rules of law based on Regulation No 1393/2007, could authorise the Member States to institute or to maintain in their national legal system rules for cross-border service which would replace the system for service laid down by Regulation No 1393/2007 even if the conditions for using it were met.
68. In addition, the requirement of an address for service, which is specific to the enforcement procedure and is intended to enable the applicant to be informed of the decision on his application and to enable an appeal to be lodged by the party against whom enforcement is sought, applies, ex hypothesi, without distinction to any citizen of the European Union irrespective of his or her nationality.
69. Finally, while the consequences of a breach of the rules relating to the address for service are laid down by the law of the Member State to which the request is addressed, the Court has nevertheless restricted the freedom of action of the Member States by ruling that ‘the sanction provided for may neither cast doubt on the validity of the enforcement order or nor in any way prejudice the rights of the party against whom enforcement is sought’. (50)
70. As for the argument based on the Rules of Procedure, it seems to me to be wholly irrelevant, since that document is not comparable with the instrument for harmonising national legislation which is constituted by Regulation No 1393/2007. I would add, for the stake of completeness, that the election of domicile provided for in Article 38(2) of the Rules of Procedure is purely optional, (51) and that, moreover, if a party has not given an address for service or has not agreed that service may be affected by a technical means of communication, all service on the party will be affected by registered letter addressed to the agent or lawyer of that party.
71. Those are the reasons why I find that the provision at issue must be considered incompatible with Regulation No 1393/2007. Whatever its omissions and shortcomings, particularly regarding the arrangements for service by post, (52) the Regulation represents a major advance and also an essential condition for the construction of a European judicial area in which there is no room for a ‘procedural fossil’ (53) in the form of service by placing the document on the procedural file.
72. Therefore I propose that the Court rule that Article 1 of Regulation No 1393/2007 must be interpreted as precluding the legislation of a Member State, such as that in question in the main proceedings, which provides that judicial documents which are addressed to a party whose place of residence, habitual abode or registered office is in another Member State are placed in the case file and deemed to have been served if that party has failed to designate a representative who is authorised to accept service and is resident in the Member State in which the court proceedings are being conducted.
73. The foregoing observations are sufficient to reply to the question from the referring court. However, should the court not accept my proposed interpretation of Regulation No 1393/2007, it seems to me advisable to consider the question briefly in the light of Article 18 TFEU.
B – Examination of the provision at issue in the light of Article 18 TFEU
74. Like the claimants, the Portuguese Government and the Commission, I consider that the obligation to provide an address for service is inconsistent with the principle of non-discrimination on grounds of nationality under Article 18 TFEU.
75. The consequence of that obligation within the European judicial area is the obligation to respect equal treatment of all individuals of the Union, irrespective of their nationality or place of residence. As the European Council acknowledged at the meeting in Tampere on 15 and 16 October 1999, ‘the enjoyment of freedom requires a genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own’.
76. The Court has repeatedly held that a rule of national civil procedure requiring, on an appeal, the payment of security for the costs of the proceedings (cautio judicatum solvi) may not discriminate against persons to whom Community law gives the right to equal treatment. (54)
77. In Case C-398/92 (55) the Court stated that a national provision of civil procedure which, in the case of a judgment to be enforced in another Member State, authorises seizure simply on the ground that enforcement is to take place abroad, whereas for a judgment to be enforced within the national territory, the provision authorises seizure only on the ground that it is probable that enforcement will otherwise be made impossible or substantially more difficult, is a covert form of discrimination which is not justified by objective circumstances.
78. In the light of those judgments, I consider that a procedural provision which requires parties residing in another Member State to designate a representative in the Member State where the proceedings are taking place to accept service of judicial documents is incompatible with the principle of non-discrimination.
79. Even if, as the Polish Government observes, Article 1-1355 of the Polish Code of Civil Procedure does not show direct discrimination on grounds of nationality because it applies in all cases where a party, irrespective of nationality, resides in another Member State, the fact remains that, as the Commission rightly observes, that provision will apply mainly to nationals of other Member States who do not usually have their residence or place of habitual abode in Poland, rather than to Polish citizens.
80. In addition, the Polish Government’s assertion that the fiction of service is not discriminatory because an identical sanction is laid down in Article 136(2) of the Polish Code of Civil Procedure against the party residing in Poland is, in my view, incorrect. In actual fact, unlike the party residing abroad, the party residing in Poland is not required to designate a representative to accept service. The party residing in Poland is exposed to the sanction of fictitious service only in the particular case of failing to inform the court of a change of address or registered office in the course of the proceedings.
81. The reasons put forward by the Polish Government in support of the obligation to give an address for service in Poland, that is to say, mainly, the need to ensure that the judicial procedure is conducted efficiently, do not seem to me to constitute reasons which can justify retaining that requirement since Regulation No 1393/2007 has precisely the objective of improving and expediting cross-border transmission by providing for various means of transmission of documents.
82. Therefore I consider that Article 1-1355 of the Polish Code of Civil Procedure constitutes discrimination with regard to Article 18 TFEU.
III – Conclusion
83. I propose that the Court’s reply to the question referred by the Sąd Rejonowy w Koszalinie should be as follows:
Article 1 of 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, must be interpreted as precluding legislation of a Member State, such as that in question in the main proceedings, which provides that judicial documents which are addressed to a party whose place of residence, habitual abode or registered office is in another Member State are to be placed in the case file and deemed to have been served if that party has failed to designate a representative who is authorised to accept service and is resident in the Member State in which the court proceedings are being conducted.
1 – Original language: French.
2 – OJ 2007 L 324, p. 79.
3 – ‘The claimants’.
4 – OJ 2000 L 160, p. 7.
5 – Article 4(1).
6 – Article 2(1) and (2).
7 – Section 2.
8 – Case C-473/04 Plumex [2006] ECR I-1417, paragraphs 19 to 22.
9 – Article 12.
10 – Article 13.
11 – Article 14.
12 – Article 15.
13 – The Polish and Italian Governments cite Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). The Polish Government adds Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) and the Court’s Rules of Procedure.
14 – Petition 0277/2010, presented by A.K., a Polish national, concerning the impossibility in Poland of serving judicial and extrajudicial documents by post or by email.
15 – OJ 1997 C 361, p. 2, ‘the 1997 Convention’.
16 – See point 3 of the introduction to the Explanatory Report to the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the service in the Member States of the European Union of judicial or extrajudicial documents in civil or commercial matters (OJ 1997 C 261, p. 26).
17 – ‘The 1965 Hague Convention’.
18 – OJ 1972 L 299, p. 32.
19 – OJ 1997 C 15, p. 1.
20 – Practical Handbook on the Operation of The Hague Service Convention, Permanent Bureau – Hague Conference, 3rd ed., Wilson & Lafleur Ltée, Montreal, 2006.
21 – Point 41, p. 43.
22 – Leffler [2005] ECR I-9611.
23 – Roda Golf and Beach Resort [2009] ECR I-5439.
24 – Leffler (paragraph 45); Roda Golf and Beach Resort (paragraph 48).
25 – Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European enforcement order for uncontested claims (OJ 2004 L 143, p.15).
26 – Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1).
27 – Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European small claims procedure (OJ 2007 L 199, p. 1).
28 – According to recital (13) to Regulation No 805/2004, ‘any method of service that is based on a legal fiction as regards the fulfilment of those minimum standards cannot be considered sufficient for the certification of a judgment as a European enforcement order’ and, in the words of recital (19) of Regulation No 1896/200, ‘any method based on legal fiction should not be considered sufficient for the service of the European order for payment’.
29 – Article 13(1)(c) of Regulation No 805/2004; Article 14(1)(c) of Regulation No 1896/2006, and Article 13(1) of Regulation No 861/2007.
30 – Article 10(a).
31 – Article 14 of Regulation No 1393/2007 requires a registered letter or acknowledgment of receipt or equivalent.
32 – The Stockholm programme – an open and secure Europe serving and protecting citizens (OJ 2010 C 115, p. 1).
33 – Stockholm programme, point 3.
34 – See, to that effect, Hess, B., ‘Nouvelles techniques de la coopération judiciaire transfrontière en Europe’, Revue critique de droit international privé, 2003, p. 215. This writer refers to a ‘conceptual change’ in the European system of judicial cooperation which ‘is no longer defined from the viewpoint of cooperation between states but on the basis of the interests and needs of individuals’ (pp. 221 and 222).
35 – European Court of Human Rights, 13 October 2009, Ovüs v Turkey, paragraphs 46 and 47, and cases cited.
36 – European Court of Human Rights, 10 May 2007, Gospodinov v Bulgaria, paragraph 40.
37 – Weiss und Partner [2008] ECR I-3367.
38 – Paragraph 47.
39 – Article 8(1) of Regulation No 1393/2007.
40 – Article 14.
41 – Proposal for a Council directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [COM(1999) 219 final].
42 – See the amended proposal for a Council regulation on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [COM(2000) 75 final].
43 – See the reasons for amendment I in the report on the proposal for a Council directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (A5-0060/1999 final).
44 – Leffler, cited above, paragraph 46, and Roda Golf and Beach Resort, cited above, paragraph 49.
45 – See, to that effect, Schack, H.,’Transnational Service of Process: A Call for Uniform and Mandatory Rules’, Revue de droit uniforme, April 2001. According to that writer, ‘insofar as national rules on service of process deny the defendant’s right to be heard, they infringe the fair proceeding requirement of Article 6 I ECHR’ (p. 836).
46 – G [2012] ECR I-0000.
47 – The judgment applied the rule laid down in Article 26(2) of Regulation No 44/2001, which states that the court is to stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. However, there is an identical stay of proceedings rule in Article 19(1) of Regulation No 1393/2007, which is easily explained because the rule in Article 26(2) of Regulation No 44/2001 was imported direct from Article 15 of the 1965 Hague Convention, which was the example for Regulation No 1393/2007 (see, to that effect, Pataut, E., ‘Notifications internationales et règlement ‘Bruxelles I’, Vers de nouveaux équilibres entre ordres juridiques, in Mélanges en l’honneur d’Hélène Gaudemet-Tallon, Dalloz, Paris, 2008, p. 377, especially p. 381).
48 – G, cited above, paragraph 45.
49 – Ibid., paragraph 55, and case cited.
50 – Case 198/85 Carron [1986] ECR 2437, paragraph 14.
51 – The provision provides that, in addition or ‘instead’ of the election of domicile, the application may indicate that the lawyer or agent consents to service being made upon him by fax or any other technical means of communication.
52 – On that subject, see Hess B., op. cit.
53 – The term is used by Herbert Roth to describe the method of fictitious service by means of ‘delivery to the public prosecutor’s office’, previously in force in the legal systems of several Member States (see Roth, H., ‘Remise au parquet und Auslandszustellung nach dem Haager Zustellungsübereinkommen von 1965’, Praxis des Internationalen Privat-und Verfahrensrechts, 2000, p. 497).
54 – Case C-43/95 Data Delecta and Forsberg [1996] ECR I-4661, paragraph 12; Case C-323/95 Hayes [1997] ECR I-171, paragraph 13, and Case C-122/96 Saldanha and MTS [1997] ECR I-5325, paragraph 19.
55 – Mund & Fester [1994] ECR I-467.
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