Where a judicial or extrajudicial document in a civil or commercial matter is to be transmitted from one EU Member State to another for the purpose of service, the EU Service Regulation applies (\u201cRegulation (EC) No 1393\/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348\/2000\u201d). The EU Service Regulation determines whether such a document must be translated and, if so, into which language.<\/p>\n
Structure and Practical Guidance
\nUnder the EU Service Regulation, the decision whether a document to be served should be translated is left to the person wishing to have the document served.<\/p>\n
However, the recipient of the document may refuse to accept service, or may return the document within one week, if it is not drawn up in one of the following languages or accompanied by a translation into one of the following languages:
\na) a language which the recipient understands; or
\nb) an official language of the Member State addressed.<\/p>\n
There are therefore two practical options:<\/p>\n
1.\tIf one wishes to be on the safe side from the outset, the document to be served should be translated into an official language of the Member State addressed. Depending on the Member State, there may be several such languages, sometimes applicable only in certain parts of that Member State. This option entails the costs of translation.
\n2.\tIf one wishes to try to avoid those costs, the document may be served in a language which the applicant believes the recipient understands. If the recipient then refuses to accept service, the translation can still be submitted subsequently.
\nIn the second option, there is no risk that a time limit will be missed if the recipient validly refuses to accept service. Under Article 8(3) of the EU Service Regulation, the document is generally deemed to have been served only upon the second service, that is, service with the translation. However, where the law of a Member State requires a document to be served within a specific time limit, the first service \u2014 that is, service without the translation \u2014 is decisive in relation to the applicant.
\nCase Law
\nThe EU Service Regulation does not define who is to be regarded as the \u201crecipient\u201d, particularly in the case of legal persons, nor does it specify when a recipient is deemed to \u201cunderstand\u201d a particular language. These requirements have been clarified by case law, in particular by a judgment of the Court of Justice of the European Union (CJEU, Third Chamber, 8 May 2008, C-14\/07, Ingenieurb\u00fcro M. Weiss und Partner GbR v IHK Berlin, NJW 2008, 1721), following a reference for a preliminary ruling by the German Federal Court of Justice (BGH, 21 December 2006, VII ZR 164\/05, EuZW 2007, 187).
\nThe following key points should be noted:
\na) \u201cRecipient\u201d
\nThe courts have not adopted a uniform approach on this point.
\n\u2022\tView 1: The relevant language skills are those of the person responsible for the specific matter. This will usually be the legal department, if one exists, and it is irrelevant that the sales manager responsible for the German market has a very good command of German. (Regional Court of Frankfurt am Main, 3 April 2014, 2-03 O 95\/13, BeckRS 2014, 16716)
\n\u2022\tView 2: In the case of a business organised on a division-of-labour basis, the assessment of the required language skills should not focus on the person who physically receives service. Rather, it must be examined whether the company has the relevant language skills internally or, given the extent of its business activities in a particular country, ought to have them (Local Court of Berlin-Mitte, 8 March 2017, 15 C 364\/16, IPRax 2018, 408). On the one hand, it is reasonable to expect the recipient to have recourse to all internal resources; on the other hand, changes in corporate appointments are purely internal and are not apparent to the sender. (See, for example, Local Court of Erding, 5 December 2013, 4 C 1702\/13, BeckRS 2014, 16268)
\nb) \u201cUnderstand\u201d
\n\u2022\tThe level of language proficiency must enable the recipient to understand official documents and the judicial language used in them. (Regional Court of Frankfurt am Main, 3 April 2014, 2-03 O 95\/13, BeckRS 2014, 16716)
\n\u2022\tIt is not for the recipient to decide whether he or she understands a particular language; otherwise, the recipient would effectively be able to determine the validity of service.
\n\u2022\tSigning a clause providing for the use of a particular language in correspondence and in the performance of a contract cannot create a presumption of knowledge of the agreed language; it may merely serve as an indication, particularly where the clause also covers communications with authorities and public institutions.
\n\u2022\tFurther possible indications may include the following:<\/p>\n
o\tThe recipient of the document has in fact corresponded in the language of the document served. It is irrelevant in this respect whether the recipient personally drafted letters in that language or obtained assistance from someone proficient in that language, provided that the recipient signed the letters personally. (Regional Court of Bonn, 30 November 2010, 10 O 502\/09, BeckRS 2011, 21269)
\no\tThe original contract contains clauses conferring jurisdiction for disputes on the courts of the transmitting Member State or subjecting the contract to the law of that Member State.
\no\tThe recipient of the document replied to the court in German and, by the content, form and wording of the reply, demonstrated that he or she was able to present the matter in German. (Regional Court of D\u00fcsseldorf, 12 January 2010, 4b O 286\/08, BeckRS 2011, 03329)
\no\tThe recipient responded in German to a pre-litigation letter from the applicant. (Local Court of Berlin-Mitte, 8 March 2017, 15 C 364\/16, IPRax 2018, 408)
\no\tThe recipient maintains a website in German and uses a .de domain address. (Local Court of Berlin-Mitte, 8 March 2017, 15 C 364\/16, IPRax 2018, 408)
\no\tGiven the scale of the recipient\u2019s business activities in a particular country \u2014 for example, more than 20 million customers in Germany \u2014 the recipient must have legally knowledgeable employees who speak the relevant language. (Local Court of Berlin-Mitte, 8 March 2017, 15 C 364\/16, IPRax 2018, 408)<\/p>\n","protected":false},"excerpt":{"rendered":"
Where a judicial or extrajudicial document in a civil or commercial matter is to be transmitted from one EU Member State to another for the purpose of service, the EU Service Regulation applies (\u201cRegulation (EC) No 1393\/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member […]<\/p>\n","protected":false},"author":29,"featured_media":55674,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[139],"tags":[],"class_list":["post-55673","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-en"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t