JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN
CIVIL AND COMMERCIAL MATTERS
(20377)
8671/99
COM(99) 219
|
Draft Council Regulation on the service in the Member States of
judicial and extrajudicial documents in civil and commercial
matters.
|
| Legal base:
| Articles 61(c) and 65 EC; consultation; unanimity
|
| |
| Document originated:
| 26 May 1999 |
| Forwarded to the Council:
| 7 June 1999 |
| Deposited in Parliament:
| 5 August 1999
|
| Department: |
Lord Chancellor's and Scottish Executive Justice
|
| Basis of consideration:
| EM of 13 March 2000
|
| Previous Committee Report:
| None |
| To be discussed in Council:
| 27 March 2000
|
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| Cleared |
Background
2.1 The proposed Regulation on the service
in the Member States of the European Union of judicial and extrajudicial
documents in civil or commercial matters is based on the 1997
Convention on the same subject. The Convention was drawn up on
the basis of Article K.3 of the Treaty of the European Union and
was signed by all Member States, including the United Kingdom,
on 26 May 1997.
2.2 As the Convention was not ratified before
the Amsterdam Treaty came into force on 1 May 1999, the Commission
announced its intention to table a proposal for a Directive on
this subject, which would supersede the 1997 Convention with the
aim of ensuring that its provisions came into effect at an early
date. It was subsequently agreed that the draft Directive should
be converted into a draft Regulation.
2.3 The original Explanatory Memorandum
on this document — dated 19 November 1999 — did not
provide all the information necessary to understand this complex
proposal. We therefore requested amplification, and a substitute
Explanatory Memorandum, dated 13 March 2000, has now been deposited.
The document
2.4 The aim of the instrument is to simplify
and accelerate the procedure for transmission of legal documents
between Member States, in order to overcome problems of delay
that arise in some Member States.
2.5 The 1965 Hague Convention, on which
the proposal is based, established a procedure for international
service based on the transmission of documents to central authorities.
The proposed Regulation will therefore supersede the Hague Convention
only as it applies to service of documents between EU Member States.
The Hague Convention will continue to apply as between EU Member
States and non-EU States. The proposals are also concerned only
with State assisted service of documents — direct party
to party non State assisted service will not be affected.
2.6 The proposed Regulation covers judicial
and extra judicial documents. According to the Explanatory Memorandum:
"These groups of documents,
and in particular the latter, are not defined in the instrument.
They were not defined in the 1997 Convention on the same subject,
nor were they elaborated in the Explanatory Report attached to
that Convention. They were also not defined in the 1965 Hague
Convention on the same subject and this does not appear to have
caused problems in practice. It appears that extrajudicial documents
differ from judicial documents in that they are not directly connected
with legal proceedings. They are nevertheless normally instigated
by solicitors, served in accordance with the rules on service
of legal documents in a particular Member State and are of legal
effect in that State. Examples are demands for payment and notices
to quit in connection with leaseholds."
2.7 The general principle underlying the
proposal is a system of decentralised transmitting and receiving
agencies. The rationale is that by appointing local bodies or
officials for service of documents, the need to go through a central
authority would be removed and it would make service more direct
and therefore quicker. There is provision for a Member State to
declare that it will not decentralise and maintain its centralised
system for a period of five years, renewable at five-year intervals.
2.8 The UK central authority is currently
the Secretary of State for Foreign and Commonwealth Affairs. As
permitted under the Hague Convention, the UK has designated other
additional authorities to facilitate service of documents locally
within different UK jurisdictions and dependent territories.[17]
2.9 The Regulation also makes provision
for service to be carried out speedily, according to the law of
the Member State addressed. If after one month, service has not
taken place, the receiving agency will inform the transmitting
agency. Ancillary provisions relating to translation of documents,
the method of service and the date of service are included.
The Government's view
2.10 The Government states that it:
"broadly supports the
policy of providing scope for certain improvements for the service
of documents whilst retaining sufficient flexibility to allow
Member States to make best use of their own internal systems and
civil procedures. This will, for example allow the United Kingdom
to pursue a policy of retaining a central body in England and
Wales, but also set up and operate a new fully decentralised system
in Scotland. This was the basis on which the United Kingdom signed
the 1997 Convention on which the proposed Regulation is based."
2.11 Because the draft Regulation replaces
a Convention which was satisfactory to the UK, during the negotiations
it had only two main concerns. The first was the form of the instrument.
On that the Explanatory Memorandum states:
"Although it was originally
proposed that the instrument should take the form of a draft Directive,
it was subsequently agreed that the proposals should come forward
as a proposed Regulation. The Council Legal Service indicated
that there would be no legal difficulty with the Instrument taking
the form of either a Regulation or a Directive.
"Whilst a Directive has the advantage of enabling
the Member State to fit the requirements of the Directive to the
State's own particular circumstances, a Regulation has the advantage
of speed of implementation (not requiring transposition into national
systems), and arguably of consistency of interpretation and effect
(since there is no room for divergence in implementation by national
legislation).
"The UK took the position that a Directive might
be preferable, but it would be willing to agree to a Regulation
if the UK's position regarding Article 9 (see below) was safeguarded."
2.12 Article 9 determines the law in accordance
with which the date of service of a document is to be calculated.
The Government considered it insufficiently clear to be accepted
without further evaluation. It has now secured a derogation which
means that the date of service will be calculated in accordance
with the law of the relevant part of the United Kingdom. As the
Explanatory Memorandum notes:
"Article 9 of the 1997
Convention was the result of extensive negotiations, and it was
only the existence of paragraph 3, allowing for derogation, which
enabled some Member States to accept paragraphs 1 and 2 of the
Article. This situation changed when the Instrument came forward
as firstly a Directive, then as a Regulation, and the Council
Legal Service advised that such a right to derogate would be legally
unsound. A significantly more restrictive right to derogate was
proposed which the UK felt unable to accept without further consultation
[on the Article] among the judiciary and legal profession. However,
a compromise text put forward on 30 November 1999 is now considered
to be acceptable. It provides for an initial five year derogation
with appropriate reasons required to be given and the power thereafter
to renew the derogation for unlimited further periods of five
years, providing the derogating Member State gives reasons to
the Commission for the derogation, which reasons must be related
to its legal system. This should allow sufficient flexibility
for a proper evaluation to be made of the provision, both in principle
and in practice, before a decision is taken as to whether it should
be applied to the UK."
Conclusion
2.13 The draft Regulation replaces a
1997 Convention which all Member States, including the UK, signed.
It is obviously sensible to provide improved procedures for the
transmission of legal documents between Member States. We note
that the main point of difficulty to the United Kingdom has been
resolved by a derogation, and now clear the document.
17 In England and Wales incoming requests are dealt
with by the Masters' Secretary Department in the Royal Courts
of Justice. From there the documents are sent to the appropriate
county court bailiff for service on the addressee. Outgoing requests
are processed by the Master's Secretary who forwards them to the
appropriate central authority of the requested State. In Scotland
incoming requests are sent to the Crown Agent for Scotland who
instructs a local Sheriff Officer to serve it on the addressee.
In Northern Ireland documents are sent to the Master (Queen's
Bench and Appeals) in the Royal Court of Justice in Belfast and
then to a local process server. Back
| 
