The necessity for a translation of the documents for service in the European Union
If a judicial or extrajudicial document needs to be transmitted in a civil oder commercial matter from an EU member state to another EU member state, the EU Regulation (Regulation (EG) Nr. 1393/2007 of the European Parliament and of the Council of the 13th November 2007 on the service in the member states of judicial an extrajudicial documents in civil or commercial matters (service of documents) and repeal of the council regulation (EG) Nr. 1348/2000) applies. The EU Service regulation modulates whether and in what language such a document has to be translated.
Classification and Notes for practical use
The decision, if a document to be served needs to be translated remains to the person who wishes to have the document served.
However, the recipient is able to refuse the document at the time of service or return it within one week if the document isn’t in one of the following languages or if no translation is included:
a) a language the recipient is able to understand, or
b) in an official language of the receiving member state
So there are two possible approaches:
- If you want to be safe from the beginning, the document should be translated into an official language of the member state. Depending on the member state, there might be several languages, which are only partially spoken in certain parts of the country. The right choice of language is linked with the costs of translation.
- If you want to try to safe those costs, you can deliver the document in a language that the recipient might understand. If the recipient then refuses to accept, you can still hand in the translation later.
There is no risk that when choosing the second option, following the refusal of acceptance by the recipient, that there will be any deadlines missed: According to Article 8, section 3 of the EU service regulation, the document is generally considered to have been served only on the second service (with the translation). However, if under the law of a member state, a document has to be served within a certain time period, the first service (without the translation) is relevant to the applicant.
The EU service regulation doesn’t regulate who is to be considered a “recipient”, especially in the case of legal persons, nor does it say when a recipient understands a specific language. These two requirements have been substantiated by case law, in particular by a decision of the European Court of Justice (EuGH (3rd chamber), 8.5.2008 – C-14/07 engineering office M.Weiss and Partner GbR/IHK Berlin , NJW 2008, 1721 following a submission by the BGH, 21.12.2006 – VII ZR 164/05, EuZW 2007, 187).
Here are some key points:
In this regard, the courts didn’t decide uniformly
- View 1: It has to be based on the language skill of the person responsible for this situation. Regularly this is the legal department (if available) and it is irrelevant if the sales manager, who is responsible for the German market is able to speak German (LG Frankfurt a. M., 3.4.2014 – 2-03 O 95/13, BeckRS 2014, 16716)
- View 2: In case a business is organized by a division of labor it is not permissible to focus on the person receiving the documents, but rather if the existing language skills are fitting or if the skills should be available due to the scale of business in a particular country (AG Berlin-Mitte, 8.3.2017 – 15 C 364/16, IPRax 2018, 408). On one hand, recourse to all internal sources is reasonable for the recipient; on the other hand, changes in the … are … and therefore not visible for the sender. (e.g. AG Erding, 5.12.2013 – 4 C 1702/13, BeckRS 2014, 16268)
- the level of language proficiency must enable the recipient to understand official documents and the language of the judiciary used (LG Frankfurt a.M., 3.4.2014 – 2-03 O 95/13, BeckRS 2014, 16716)
- it is not for the recipient to decide wether he understands a particular language or not, as otherwise the recipient could decide on the validity of the service.
- the signing of a clause providing for the use of a particular language for correspondence and contract can’t be a reason for knowledge in the agreed language (but merely a guide, especially if the clause refers to the communication with authorities and public institutions).
- Other indications might be:
- The recipient has communicated in this language before. It is irrelevant whether he himself has written letters in this language or has been helped by a language expert as long as he signs the letters himself (LG Bonn, 30.11.2010 – 10 O 502/09, BeckRS 2011, 21269)
- The original contract contains clauses, with which the courts of the transmitting state are made responsible for legal disputes or the contract is subject to the law of that member state
- the recipient of the document has answered the court in German and has demonstrated through the content, form and mode of expression that he knows how to explain his request in German (LG Düsseldorf, 12.01.2010 – 4b O 286/08, BeckRS 2011, 03329).
- The recipient has answered a pre-litigation letter from the applicant in German (AG Berlin-Mitte, 8.3.2017 – 15 C 364/16, IPRax 2018, 408)
- the recipient maintains a website in German wird a .de address (AG Berlin-Mitte, 8.3.2017 15 C 364/16, IPRax 2018, 408)
- Due to the extent of its business activities in a particular country (e.g. more than 20 million customers in Germany), the recipient must have legally-trained employees who speak a particular language (AG Berlin-Mitte, 8.3.3027 – 15 C 364/16, IPRax 2018, 408)