New EU regulation enters force on cross-border servicing of documents

The European legislator has moved to further improve and speed up the transmission and service of judicial and extrajudicial documents in civil and commercial matters through the digitisation of the procedure, the introduction of a duty of assistance of the receiving Member State, and the extension of the period for the addressee to refuse the documentation.

Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) introduces a range of significant changes. 

The regulation entered into force on 1 July 2022 and is the third version on this matter, following the repeal of Regulations (EC) No. 1393/2007 and 1348/2000.

Mandatory IT systems

The new legislation brings in a mandatory use of IT systems between Member States' designated agencies (article 5.1), which are the main actors in the cross-border service of documents. In this regard, swift communication between these agencies and bodies is crucial for improving the service.

Article 5 sets out that the transmission of judicial and extrajudicial documents between designated agencies and bodies shall take place using a secure, reliable, and decentralised IT system, including national IT systems that are interconnected and technically interoperable (this is currently e-Codex, but is subject to the technology progressing further).

E-seals and signatures

There are special provisions for electronic documents; namely, the use of electronic seals and signatures (article 5.3). Dealing with electronic signatures and referring to Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market, the new legislation sets out that if the documents to be served require or feature a seal or handwritten signature, qualified electronic seals or qualified electronic signatures may be used instead.

Provision of assistance

One of the most substantial modifications - the two previous versions did not provide for this - is the provision of assistance if the domicile of the addressee is unknown (article 7). If the address of the person to be served is unknown, the Member State where the service is to be provided is required to assist in determining the domicile or residence of the addressee.

To that effect, the regulations set out three options for providing such assistance, of which each Member State must offer at least one: 

• "providing for designated authorities to which transmitting agencies may address requests on the determination of the address of the person to be served; 
• allowing persons from other Member States to submit requests, including electronically, for information about addresses of persons to be served directly to domicile registries or other publicly accessible databases by means of a standard form available on the European e-Justice Portal; or
• providing detailed information, through the European e-Justice Portal, on how to find the addresses of persons to be served."

This is a step forward in European judicial cooperation. With this new provision, the number of services currently carried out “without domicile or known residence” should be considerably reduced.

Right to refuse

Further refinements have been made to the addressee's right to refuse to accept a document (article 12), while preserving the general principle that sets out that the addressee may refuse to accept the document to be served if the document is not written in, or is not accompanied by a translation into, either a language that the addressee understands or one of the official languages of the place where the service is to be effected.

If the document to be served is not accompanied by a translation into one of the abovementioned languages, the receiving agency shall inform the addressee of their right to refuse to accept a document. 

This refusal can occur at two different times: at the time of service or, in a new development, within two weeks from the time of service by making a written declaration of refusal of acceptance (this period was one week in the previous regulation). The refusal can be made either with the form provided in the regulation or with a written declaration.

Serving documents electronically

Article 19 covers the possibility to serve documents directly by electronic means. It states: "the service of judicial documents may be effected directly on a person who has a known address for service in another Member State by any electronic means of service" that are permitted by the laws of the Member State in which service is to be effected.  

In this regard, the regulation establishes the necessary guarantees so that this electronic service may be carried out, with the prior consent of the recipient; and with the confirmation of receipt by the recipient. However, any Member State may specify additional conditions under which it allows electronic services. 

Osborne Clarke comment

The new regulation of cross-border services is a legislative instrument of enormous practical importance for legal actors, individuals and businesses. This latest update and modernisation should help to reduce delays and costs, two of the great fears that users of the administration of justice very often have. 

From an operational point of view, recital 36 of the regulation allows the European Commission to draw up a manual containing all the relevant information for its proper application.