SERVICE OF JUDICIAL AND EXTRAJUDICIAL
DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS (11131/05, 16372/06)
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland, Parliamentary Under Secretary of State, Department
for Constitutional Affairs
Thank you for your letter of 25 July 2006[104]
which was considered by Sub-Committee E at its meeting of 18 October
2006.
We note that a general approach was agreed at
the June Council meeting on the basis of a revised text. While
it appears that the majority of the changes are not significant
(we did not receive a copy of the revised proposal with your letter),
we are disappointed to see the addition of a new recital regarding
the single fixed fee. You will recall that the Committee was strongly
in favour of transparency of costs and the requirement for a single
fixed fee would be an important means of improving such transparency.
We understood that the objective of the revised Article 11(2)
was to introduce a single fixed fee for service in each Member
State. This interpretation is supported by your letter dated 22
March 2006 in which you say that you can "support the Presidency
text which now stipulates that there should be a single fixed
fee in each Member State and that Member States should notify
the Commission of how this fee should be paid" (emphasis
added). We would be grateful if you would explain why it was thought
necessary to amend the recitals and what the practical effect
is likely to be on fees for service in Member States.
19 October 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
Thank you for your letter of 19 October. I note
your comments on the addition of a new recital regarding the single
fixed fee. The issue of costs was one of the most contentious
during the negotiations. There was a range of opinions with at
one extreme Member States who wanted there to be no costs at all
while at the other Member States who wanted no restriction on
the costs that could be levied.
The original compromise was for Member States
that wanted to set a charge to have a single fixed fee. As I explained
in my letter of 25 July, the final agreement was that Member States
should be able to set different single fixed fees for different
types of service.
I presume that in practice most Member States
that charge fees will set only one fixed fee. France, for example,
already has a fixed fee of €69. Where a Member State opts
for a range of fixed fees they will have to be clear as to how
they are setting these fees. For example fees set for service
of different types of document or categorised in any other way
will have to be clearly stated and will be transparent in the
sense that those wishing to initiate service will know what they
are before service is effected. Importantly the requirement that
these fees must be proportional and non-discriminatory remains.
It should be remembered that those who request
the service of documents are not obliged to use a method which
incurs fees for the use of judicial officers and bailiffs. They
can all opt to use postal service instead and under the revised
Regulation the requirement of Member States to accept postal service
under the same condictions—ie by registered letter with
acknowledgment of receipt or equivalent—makes it even easier
for people to choose postal service without having to research
the requirements of each Member State.
You also mention in your letter that you did
not receive a copy of the revised text with my letter of 25 July.
I did not send the text then as the European Parliament's amendments,
which I did enclose, followed the same wording as that revised
text apart from some minor differences in wording in the recitals.
For ease of reference I enclose the text with this letter.
2 November 2006
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland
Thank you for your letter of 2 November 2006
which was considered by Sub-Committee E at its meeting of 29 November
2006.
We note that although the original compromise
was for Member States who wanted to fix a charge to have a single
fixed fee, the final agreement was that Member States should be
able to set different single fixed fees for different types of
service.
In your letter of 22 March 2006,[105]
on the basis of which we cleared this proposal from scrutiny (at
your request in light of proposed agreement of the text at the
April JHA Council), you said that, "we can support the Presidency
text which now stipulates that there should be a single fixed
fee in each Member State and that Member States should notify
the Commission of how this fee should be paid". We expressed
our commitment to transparency of fees both in our reply of 24
April 2006 and in our earlier letter of 9 February 2006.
Given the material nature of the change, it
is disappointing that you did not resubmit the proposal for scrutiny,
particularly as agreement was not in the event sought at the April
JHA Council. In future we would expect proposals to which material
changes have been made following clearance from scrutiny by this
Committee to be resubmitted to us for further consideration.
30 November 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
Thank you for your letter of 30 November. I
note your continued concern about the provision in this proposal
for Member States to set fees for service.
I do of course appreciate how important it is
to inform your Committee of any material changes to proposals
and will ensure that we continue to do so. As I have explained
before, the Government believes strongly that the question of
whether there should be costs for service should be a matter for
each Member State to decide but, as I said in my letter of 20
January, we believe that any provision on fees must strike the
right balance between respecting that right to set a charge while
ensuring that the charge set will be known to parties in advance
and will not be an extortionate amount.
While negotiating this proposal we were of course
mindful of your commitment to transparency of fees. However we
took the view that the proposed change does not affect materially
our shared position on this issue. The change to this provision
is not to the text of the proposed Regulation but rather to the
corresponding recital. Member States who levy charges will be
required to set fixed fees for each type of service. These fixed
fees must be set in a manner which is proportional and non-discriminatory
and will be known to requesting parties beforehand.
The problem with the current Regulation is that
the party requesting service in some Member States is unable to
determine how much the fees are likely to be. Under the current
wording of the proposal the costs will be transparent because
that party will know exactly how much he or she will be expected
to pay. While there will no longer be a requirement on Member
States to set one single fixed fee I suspect that in most cases
that it what they will do. However even if they choose to set
a number of different fees for different types of service—in
effect a scale of charges—the requirement remains that these
fees must be fixed. On the basis of this information the party
will be able to decide whether to serve the relevant documents
through the authorised servers in the Member State concerned or
to bypass the resulting costs by using service by post instead.
Therefore I am satisfied that this proposed
change will continue to provide transparency of fees and will
be a significant improvement over the current Regulation.
7 December 2006
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland
Sub-Committee E considered the above proposal
(16372/06) at its meeting on 31 January 2007.
Thank you for providing the Committee with the
amended proposal, which consolidates the original Regulation and
the amendments. We note that no substantive changes have been
made since we last considered the proposal and have decided to
clear it from scrutiny.
25 January 2007
104 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, p 376. Back
105
Correspondence with Ministers, 40th Report of Session 2006-07,
HL Paper 187, pp 374-375. Back
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