The Commission has proposed amendments to Regulation (EC) 1393/2017 on the service of judicial documents in civil and commercial matters (“the Service Regulation”). The amendments are ostensibly to provide smoother cross-border judicial proceedings, specifically introducing new electronic, “direct” means of service. But the proposals leave many questions unanswered; the main being, “will this work in practice?”.
The amendments replace Article 15, with a new clause which provides for direct, electronic service of judicial documents. A new Article 15a is inserted, which allows for the transmission of judicial documents via “qualified electronic registered delivery services” under Regulation (EU) 910/2014 (“the eIDAS regulation”). This would result in a document being served by a party in one Member State to be submitted to the mailbox of another party in a different Member State, using a method set out in the eIDAS Regulation.
This presents a number of practical issues. Namely, it is unclear how this would be carried out in practice, as there are still several disparities between Member States on such delivery services and their use. They are used to a varying extent by each nation, and public awareness of the service is currently limited.
There is also the risk of the services failing and causing delays to the judicial process. At present, it is down to the Member States’ discretion as to whether they use an electronic delivery service, meaning there are varying degrees of reliability in these services across the European Union. The amendments mean that a Member State could decide to use the service of another Member State to serve judicial documents; if such services are not subject to a minimum requirement, this could lead to ineffective systems being under strain. The amendments do not provide for a contingency service should there be a failure of the systems.
The amendments also provide for changes to the service of documents via postal service. The updated Article 14 would introduce a requirement to use an Acknowledgment of Receipt to be filled in by the postal service provider when a judicial document is served by post. It would also provide that, in the addressee’s absence, the document can be served on adult persons living in the same household, or employed by the addressee. The Acknowledgment of Receipt is provided at Annex IV, and is extensive, involving details such as the sender, recipient, name of adult person accepting the document and the date of return of an unclaimed document.
According to the Royal Mail, this poses substantial practical issues for national postal operators which don’t use hard-copy confirmation of delivery forms anymore. Royal Mail instead provide electronic confirmation of delivery. They will therefore need to go back to outdated procedures, and overhaul their existing practices to accommodate the changes. Furthermore, it may be viewed as putting excessive strain on domestic postal services, by requiring that staff are responsible for identifying relevant postal items in the general post bag, finding an acceptable alternative recipient to sign for the package (which may be different to usual postal protocols) and for filling in and then processing the complex acknowledgment of receipt.
The proposal is currently with the Council. Some amendments have been made, but none have substantively clarified how the updated Service Regulation can be put into action effectively.
The draft text can be found here.