Setting off abroad

I gave an outline of the Regulation of the Council of the European Union of 29 May 2000 on the Service in the Member States of Judicial and Extra Judicial Documents in Civil and Commercial Matters (“the Regulation”) in my article in the November 2000 Journal at pages 36 and 37. The Regulation (Council Regulation (EC) No 1348/2000) came into force on 31 May 2001. It does not apply in respect of Denmark. It is now time to update my article.

Readers will recollect that the Regulation establishes a system for service of judicial and extrajudicial documents (“documents”) in Member States (other than Denmark) by means of transmitting and receiving agencies to be designated by the individual Member States. The agencies designated for Scotland do not include sheriff officers, as originally envisaged, but are messengers-at-arms who are members of the Society of Messengers-at-Arms and Sheriff Officers, and solicitors approved for that purpose by the Law Society of Scotland. The Scottish Ministers have been designated as the central body for the purposes of article 3 of the Regulation. (See the European Communities (Service of Judicial and Extrajudicial Documents) (Scotland) Regulations 2001 (SSI 2001/172), regs 3 and 4.)

Information maintained by the European Commission

By virtue of articles 17(a) and 23 of the Regulation, the Commission publishes in the Official Journal, and regularly updates on its Justice and Home Affairs website:

1. A Manual of Receiving Agencies;
2. A Glossary of Documents Which May Be Served; and
3. Information communicated by the Member States with respect to the Regulation.

The Regulation itself is also found at this website. To access the website, go to www.europa.eu.int/comm/justice_home/index_en.htm, click on “documentation centre”, then “civil matters-judicial co-operation” and then “documents-service”. Alternatively one may use the link provided on the National Association of Belgian Sheriff Officers website, referred to below.

Of the three information documents maintained on the Justice and Home Affairs website, the Manual of Receiving Agencies is the most extensive (963 pages in its most recent version). It lists all the receiving agencies in the Member States. Transmitting agencies are not included in the Manual as these are contained in the information document, number 3 in the above list.

The entries in the Manual (and also in the Glossary) are given in all 11 official languages of the EU. The official languages at State level, into which copies of documents are to be translated prior to service, are noted later in this article.

If one wishes to look for information in English in the Manual and the Glossary, look for “EN” in relation to each entry for an individual state.

The Manual

For some states the entry is very straightforward. For Belgium, for example, the receiving agency is the Chambre Nationale des Huissiers de Justice/Nationale Kamer van Gerechtsedeurwaarders, translated as “the National Association of Bailiffs”, but perhaps more accurately for a Scottish practitioner, “the National Association of Belgian Sheriff Officers” (see below).

The German entry takes up what seems like hundreds of pages, as there is a separate receiving agency for each locality in Germany.

Some states (e.g. Greece, Finland and Sweden) follow the Belgian example by having only one receiving agency (in all three cases, the Ministry of Justice), while other states are similar to the German model by having a detailed list of receiving agencies for each locality (e.g. The Netherlands and Spain).

The Glossary

This lists the various documents which may be transmitted for service under the Regulation. The UK entry seems to have been drafted almost exclusively with regard to the terminology of English law. With regard to extrajudicial documents, some of the entries are not very helpful. For example, the Dutch entry refers to “documents that can be served under the Regulation: judicial and extrajudicial documents in civil and commercial matters”, and the Italian entry to “extrajudicial documents in general”. The Austrian entry, by way of contrast, defines an extrajudicial document as one “seeking to safeguard, pursue or counter a civil or commercial claim, but without involving civil court proceedings”. The German entry, which is similar to the Austrian, gives notarised deeds, and out of court settlements, as examples of extrajudicial documents. The French entry reads: “les actes extrajudiciares émanant des autorités et des officiers ministeriels”. The English translation “ministry officials” is inaccurate because “officiers ministeriels” are officials such as notaries public and huissiers. In the Scottish context, though not mentioned in the UK entry, extrajudicial documents would include extracts of documents registered in the Books of Council and Session, or sheriff court books.

Other information

This document lists the transmitting agencies, and gives information about alternative modes of service in the member states. It indicates the languages in which requests for service of documents may be transmitted to the receiving state. According to this information, all member states except Luxembourg and Portugal will accept request forms completed in English. In Luxembourg, request forms must be in French or German. In Portugal, they must be in Portuguese or Spanish. The document to be served must, however, in all cases be in an official language of the place of service in the receiving state, or the language of the transmitting state which the addressee can understand (see below).

All states accept postal service as an alternative method of service but often subject to particular conditions. These must be consulted in each case before arranging for postal service.

Austria, England and Wales, Germany, Northern Ireland and Portugal object to the direct service of documents through the judicial officers of their states.

Diplomatic or consular agents may not serve documents in Belgium and only on their own nationals in Germany, Italy and Luxembourg.

Where a document is served in Scotland, all states except Luxembourg, Portugal and Spain will accept a certificate of service completed in English. For documents emanating from Luxembourg, the certificate must be in French or in German; for documents from Portugal, in Portuguese or Spanish; and in documents from Spain, only in Spanish.

Information maintained by the National Association of Belgian Sheriff Officers

The National Association of Belgian Sheriff Officers maintains an English language website on which may be found the Regulation and standard forms in English (which can be downloaded) for use under the Regulation. Unfortunately, the “interesting links” takes one only to the standard forms. In order to obtain access to these links, click on to the left hand abbreviation NL(=Dutch), FR(=French), or DE(=German) and you will be taken to the Dutch, French or German version of the website. The links operate from these websites. The links include the Commission website in relation to the Regulation, a list of central bodies acting under the Regulation, and the websites of National Associations of Sheriff Officers in Belgium, France, the Netherlands and Scotland. To access the English language website, go to: www.eu-procedure.be/EN

For direct access to the Dutch, French and German sites replace the “EN” with “NL”, “FR” or “DE” respectively.

Translation of documents to be served

According to the Court of Session Rules 1994 and the Sheriff Court Ordinary Cause Rules 1993, a document to be served or intimated abroad must be accompanied by a “translation in an official language” (RCS 16.6(1), RCS 16.8(1), OCR 5.5(6)) of the country in which service is to be executed, unless English is an official language of that country.

According to article 8(1) of the Regulation, the addressee may refuse to accept the document unless it is in:
(a) the official language of the Member State in which service is to be effected, or “one of the official languages of the place where service is to be effected”; or
(b) a language of the Member State of transmission which the addressee understands.

Since the Regulation takes precedence over national rules (R v Secretary of State for Transport, ex parte Factortame [1991] AC 603), it would be possible to dispense with a translation if the defender understood English, but this might not be advisable if it is likely to lead to disputes about whether the defender understands English, or time need be taken up explaining to the court why its rules of procedure have not been observed.

The language in which the document must be served is an official language of the country “unless one of the official languages is English” (court rules), but “one of the official languages of the place where service is to be effected” (the Regulation). This is not usually a practical problem in the EU as most states have only one official language, even if regional languages exist in the territory of the state in which service or intimation is to be made. Thus in France, for example, a document would be served on a Breton-speaker in French and not in Breton; in the Netherlands, on a Frisian-speaker in Dutch and not in Frisian; and, when Slovakia joins the EU next 1 May, on a Hungarian speaker in the Hungarian speaking regions of Slovakia in Slovakian and not in Hungarian. Where, however, the regional language has status as an official language alongside the national language in the region concerned, for example, Catalan in Catalonia, German in Alto Adige, Italy, and when Slovenia joins the EU next 1 May, Hungarian and Italian in the Hungarian and Italian speaking areas of Slovenia respectively, the document might – if more convenient – be translated into the co-official language of the region. English is an official language in the Republic of Ireland alongside Irish, and in Malta alongside Maltese (relevant when Malta joins the EU next 1 May). The court rules seem to suggest no translation should be made into Irish, or Maltese; this conflicts with the Regulation, but of course there is no point in making a translation if it is not needed; English suffices for these countries.

Finland and Belgium are two special cases. In the Åland Islands, Swedish, not Finnish is the official language; elsewhere in Finland, either Swedish or Finnish may be used. In Belgium, there are four linguistic regions: the French-speaking, the Dutch-speaking, the German-speaking, and the bilingual region of Brussels-Capital. Documents must be translated into the language of the region in which service or intimation is to be executed; in Brussels, documents may translated into either Dutch or French. (Note: Nederlands (Dutch), and not Vlaams (Flemish) is the official language of the Flemish Region and one of the official languages of Brussels: www.taalunie.nl).

Implementation of the Regulation

The Regulation has direct effect in Scotland, without any need for implementing legislation (Treaty Establishing the European Community, art 249). With one exception, the court rules do not make reference to the Regulation. An exception to this is that reference is made to the Regulation in the Sheriff Court Ordinary Cause Rules, but only to restrict requests for transmission for service by the Scottish Ministers as central body, and through consular officials, to exceptional circumstances only (OCR 5.5(1)(d), inserted by AoS (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2003, para 2(4)). While this is in line with art 3(c) relating to central bodies, it conflicts with art 13 (service by consular officials): it is arguable that restriction on service under art 3 is ultra vires as it conflicts with the UK declaration that the UK does not object to art 13 service in the United Kingdom, and is silent in relation to its use for service abroad (cf Taylor v Marshall’s Food Group 1998 SC 841).

George Jamieson, Pattison & Sim, Paisley