Case C‑519/13

Alpha Bank Cyprus Ltd

v

Senh Dau Si and Others

(Request for a preliminary ruling
from the Anotato Dikastirio Kyprou)

(Reference for a preliminary ruling — Judicial cooperation in civil or commercial matters — Service of judicial and extrajudicial documents — Regulation (EC) No 1393/2007 — Article 8 — Refusal to accept the document — Failure to provide a translation of one of the documents served — Failure to use the standard form set out in Annex II to that regulation — Consequences)

Summary — Judgment of the Court (First Chamber), 16 September 2015

1.        Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Objectives

(European Parliament and Council Regulation No 1393/2007)

2.        Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Refusal to accept a document — Powers and obligations of the receiving agency — No power to assess the conditions for refusal — Assessment to be carried out by the national courts of the Member State of origin

(European Parliament and Council Regulation No 1393/2007, Arts 7, 8(1), (2) and (3) and Annex I)

3.        Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Refusal to accept a document — Right conferred on the addressee of the document in certain circumstances — Obligation for the receiving agency to inform that addressee about his right using the standard form in Annex II to that regulation — No margin of discretion

(European Parliament and Council Regulation No 1393/2007, Art. 8(1) and Annex II)

4.        Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Failure of receiving agency to inform the addressee of the document about his right to refuse using the standard form in Annex II — Consequences — Nullity of the procedure — Absence — Obligation for the receiving agency to rectify that omission

(European Parliament and Council Regulation No 1393/2007, Annex II)

1.        See the text of the decision.

(see paras 29-33)

2.        In accordance with Article 7 of Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, the receiving agency is required to effectively serve the document on the addressee. In that context, it must, first, keep the transmitting agency informed of all the relevant aspects of that operation by returning the standard form set out in Annex I to that regulation and, secondly, in accordance with Article 8(1) thereof, inform the addressee that it may refuse to accept the document if it is not translated into one of the languages referred to in that provision, namely either a language which the interested party understands, or the official language of the receiving Member State or, where appropriate, one of the official languages of the place where that document must be served, languages which the addressee is expected to understand. Where such a refusal is effectively given by the latter, he is in addition required, under Article 8(2) and (3) of that regulation, immediately to inform the transmitting agency and return the request and the document of which a translation is requested. By contrast, those agencies are not required to rule on questions of substance, such as those concerning which language(s) the addressee of the document understands and whether the document must be accompanied by a translation into one of the languages stated in Article 8(1) of the regulation. More particularly, that regulation does not confer on the receiving agency any competence to assess whether the conditions, set out in Article 8(1), according to which the addressee of a document may refuse to accept it, are satisfied.

On the contrary, it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature, since they oppose the applicant and the defendant. That court will be required to determine, at the request of the applicant, whether the refusal by the addressee to receive a document on the ground that it was not drafted in a language which he understands or is deemed to understand was justified. To that effect, it must take due account of all the evidence in the file in order, first, to determine the linguistic knowledge of the addressee of the document and, secondly, to decide whether, in view of the nature of the document at issue, a translation of it is required.

In essence, that court will be required, in each individual case, to ensure that the respective rights of the parties concerned are upheld in a balanced manner, by weighing the objective of efficiency and of rapidity of the service in the interest of the applicant against that of the effective protection of the addressee’s rights of defence.

(see paras 36, 37, 40-43)

3.        Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters must be interpreted as meaning that the receiving agency is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document, by using systematically for that purpose the standard form set out in Annex II to that regulation.

That regulation does not contain any exceptions to the use of the two standard forms which are set out, respectively, in Annexes I and II to that regulation. In addition, those forms constitute, as is stated in recital 12 of the preamble to that regulation, instruments by means of which addressees are informed of their ability to refuse to accept the document to be served.

As is apparent from the wording itself of the title and contents of the standard form set out in Annex II to the regulation, the ability to refuse to accept the document to be served, as provided for in Article 8(1), is defined as a ‘right’ of the addressee of that document. In order for that right conferred by the EU legislature to usefully produce its effects, the addressee of the document must be informed in writing thereof. In the system established by Regulation No 1393/2007, that information is provided to him using the standard form set out in Annex II.

Accordingly, Article 8(1) of Regulation No 1393/2007 contains two statements which admittedly are connected, but nevertheless distinct, namely, first, the substantive right of the addressee of the document to refuse to accept it, on the sole ground that it is not drafted in or accompanied by a translation in a language he is expected to understand and, secondly, the formal information about the existence of that right brought to his knowledge by the receiving agency. In other words, the condition relating to the languages used for the document relates not to the information given to the addressee by the receiving agency, but exclusively to the right to refuse reserved to that addressee.

In those circumstances, it appears that the refusal itself is indeed clearly conditional, in so far as the addressee of the document may validly make use of the right only where the document at issue is not drafted in or accompanied by a translation either in a language he understands or in the official language of the receiving Member State or, if there are several official languages in that Member State, in the official language or one of the official languages of the place where service is to be effected.

The fact remains that the exercise of that right to refuse presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right.

Therefore, the receiving agency, where it serves or has served a document on its addressee, is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document.

(see paras 44, 45, 47, 49-51, 53-55, 58, 77, operative part)

4.        Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters must be interpreted as meaning that the fact that the receiving agency, when serving a document on its addressee, fails to enclose the standard form set out in Annex II to the regulation, does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation.

It does not follow from any of the provisions of that regulation that a failure to provide the addressee of a document with information, using the standard form set out in Annex II to that regulation leads to the invalidity of the procedure for service. Moreover, concerning the consequences of the refusal by the addressee of a document to accept it on the ground that that document was not accompanied by a translation in a language which he understands or in the official language of the receiving Member State, the Court has already held, with respect to Regulation No 1348/2000, which preceded Regulation No 1393/2007, that it was necessary not to declare the procedure invalid, but to allow, by contrast, the sender to remedy the lack of the required document by sending the requested translation. A similar solution must be reached where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document. The lack of that standard form and the refusal to accept a document in the absence of an appropriate translation are closely linked in so far as, in both situations, the exercise, by the addressee of such a document, of his right to refuse to accept the document at issue could be impeded. Moreover, to declare either the document to be served or the procedure for service invalid would be incompatible with the objective pursued by Regulation No 1393/2007, which consists in providing a means of direct, rapid and effective transmission between Member States of documents in civil and commercial matters.

Consequently, in the event of a failure to provide information using the standard form set out in Annex II to the regulation, it is for the receiving agency to inform without delay the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1) of the regulation, that standard form.

(see paras 59-61, 63, 64, 66, 67, 72, 76, 77, operative part)