Service of judicial and extrajudicial documents in civil and commercial matters in Member States

Written on 30 Mar 2016

Thanks to Regulation nº 1393/2007, which repealed the previous Regulation nº 1348/2000, the service of judicial and extrajudicial documents alike between Member States has been streamlined and accelerated, reducing the periods that were previously produced due to the management of the process by the Central Authorities of each State.

The increasingly common interaction between the various jurisdictions of the Member States and the needs arising from this such as the service of judicial and extrajudicial documents prompted the passing of the aforementioned Regulation nº 1393/2007. The intention was none other than to reduce the huge delays which were caused when, for example, trying to notify other parties residing abroad of the judicial proceedings.

The Regulation established a flexible procedure whereby the “transferring or recipient bodies”, designated by Member States, served documents to the recipient through standard forms in the various official languages and these bodies were responsible for carrying out this procedure in accordance with their national Law or in the form required by the transmitting agency, provided that they were not incompatible. Offsetting this, the recipient had the option of refusing service of the notification or transfer by claiming ignorance of the language or infringement of the provisions of the Regulation.

Notification by post were also contemplated in the Regulation (specifically Art. 14); although in many cases complications have appeared due to the recipient not being at home or by the absence of proof of receipt. In such cases, the notification was overruled and the parties were forced to attempt notification by other means.

In Spain, with the present modification of the Civil Procedure Act (introduced by Law 42/2015), we have gone a step further by introducing the possibility of serving documents through electronic means. As of January 2016, companies are required to designate an email address for the purposes of summons to appear before the court, which will undoubtedly cut the periods experienced prior to the reform even further, making the idea of bringing an international dispute (with participants residing in Spain) be seen not to be adversely affected by the costs and delays carried by the notification of parties residing in other Member States.

For this task, the Senior Judicial Clerks of the different judicial districts have been designated to receive service of judicial documents and carry out their transfer to the recipient, appointing a Court to coordinate the management of the procedure.

We must not forget the exceptions to the application of the process of service of documents established by the Regulation, amongst which matters such as the following are found: taxation, customs or administrative matters, or State liability for actions or omissions in the exercise of their authority.

In short, the streamlining of the procedures through the abolition of the Central Authorities and the previous bureaucratic requirements of the Regulation have enshrined the idea of developing an area of freedom, security and justice within the framework of the European Union. This would allow, within the field of civil and commercial law in which cross-border investments take place, the speed of the judicial procedures to be guaranteed in a quick and efficient manner.