Service of court documents within the European Union
European Regulation (EC) 1784/2020 entered into force on 01.07.2022 and regulates judicial cooperation in civil and commercial matters between EU member states when a judicial or extrajudicial act must be transmitted from one to another for service. Member states designate the transmission services responsible for the transmission of documents to be served in another Member State, as well as the receiving authorities responsible for receiving such documents. The central authority in Cyprus is the justice ministry which must, when submitting the document to be transmitted, point out to the applicant that the recipient may refuse to receive the document if it is not drawn up in the official language of the receiving member state. The applicant bears the costs of translating the transmitted document. Regulation (EC) 1784/2020 replaced (EC) 1393/2007 which was repealed, after reformulation for reasons of clarity and adding substantial amendments for the better and faster transmission of judicial and extrajudicial acts served or notified to civil or commercial cases.
Form A contains details of the service of transmission and reception, the applicant and the recipient, the method of service or notification, the nature of the act if it is judicial or extrajudicial, the language of notification, and the need to return a copy of the act accompanied by the certificate of service or notification. When the document/s reach the receiving service, it ensures that it is served as soon as possible and in any case within one month of receiving it. At the same time, he informs the recipient that he can either refuse receipt at the time of service to the person who serves or notifies him of the document/s, or he can return it within two weeks if the deed has not drawn up or not accompanied by a translation into a language understood by the addressee.
Regulation (EC) 1784/2020 also provides for other ways of transmission and service or notification of judicial documents, such as through diplomatic or consular channels, service or notification by diplomatic or consular agents, service or notification by registered mail with acknowledgment of receipt or equivalent document, as well as electronic service or notification.
An issue arose when the addressees of court documents served in their country with the leave of the court by private mail (DHL Express) submitted an application to set aside the service on the grounds that the provisions of the regulation on service were not followed, as well as the judgement which was issued in absentia against them.
The court of first instance held that European Regulation 1393/2007, which was in force at the time, should definitely have been part of the legal basis of the application for the issuance of the order that allowed the service of the summons notice of the lawsuit out of jurisdiction, which was not the case. Nor was the decree for service outside the jurisdiction issued as per the provisions of the regulations, since the relevant permission from the court provided for service by private mail. This omission, it considered, justified the request to set aside the order for service outside the jurisdiction, but also to set aside the judgement issued in absentia.
The Supreme Court, in the context of the decision examining the appeal of the banking institution, disagreed with the first instance decision, which it set aside, emphasising that Regulation (EC) 1393/2007 in addition to maintaining the system of transmission of documents through a Central Authority at the same time establishes and recognises a number of other ways of service, direct or indirect. Furthermore, it held that the leave of the court in the case under discussion to serve the relevant documents by private mail (DHL Express) did not contain any error in any way, which could lead to its being set aside.
The Supreme Court concluded that it was a possibility and a choice, not only in application of the Civil Procedure Rules and well-established jurisprudence of the courts on the issue, but also as a directly prescribed method of service in Regulation (EC) 1393/2007. The contrary conclusion of the court of first instance is not adopted and ordered that the first instance decision, including the order for costs, be set aside.
George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, coucounis.law@cytanet.com.cy