Case C-325/11

Krystyna Alder and Ewald Alder

v

Sabina Orlowska and Czeslaw Orlowski

(Reference for a preliminary ruling from the Sąd Rejonowy w Koszalinie)

‛Regulation (EC) No 1393/2007 — Service of documents — Party domiciled in the territory of another Member State — Representative domiciled in national territory — None — Procedural documents placed in the case file — Presumption of knowledge’

Summary — Judgment of the Court (First Chamber), 19 December 2012

1. Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Scope — Determined by national legislation — Not permissible

   (Council Regulation No 1393/2007)

2. Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Service of judicial documents to a party whose place of residence or habitual abode is in another Member State and who has failed to appoint a representative in the State of the proceedings — National legislation providing for service by placing those documents in the case-file — Not permissible

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Regulation No 1393/2007, Art. 1(1))

1.  See the text of the decision.

   (see paras 19-27)

2.  Article 1(1) of Regulation No 1348/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and repealing Regulation No 1348/2000 must be interpreted as precluding legislation of a Member State which provides that judicial documents addressed to a party whose place of residence or habitual abode is in another Member State are placed in the case file, and deemed to have been effectively served, if that party has failed to appoint a representative who is authorised to accept service and is resident in the first Member State, in which the judicial proceedings are taking place.

   Since Regulation No 1393/2007 lays down the means of transmission of the judicial documents in an exhaustive manner, it does not provide any place for, and therefore precludes, a procedure for notional service such as that in force in Poland.

   Moreover, such a system for notional service deprives of all practical effect the right of the person to be served, whose place of residence or habitual abode is not in the Member State in which the proceedings take place, to benefit from actual and effective receipt of that document because it does not guarantee for that addressee, inter alia, either knowledge of the judicial act in sufficient time to prepare a defence or a translation of that document.

   The objectives of Regulation No 1393/2007, namely improving and expediting the transmission of judicial documents between Member States, cannot be attained, if national provisions undermine in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights and Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms.

   (see paras 32, 34-36, 41, 42 and operative part)

Case C-325/11

Krystyna Alder and Ewald Alder

v

Sabina Orlowska and Czeslaw Orlowski

(Reference for a preliminary ruling from the Sąd Rejonowy w Koszalinie)

‛Regulation (EC) No 1393/2007 — Service of documents — Party domiciled in the territory of another Member State — Representative domiciled in national territory — None — Procedural documents placed in the case file — Presumption of knowledge’

Summary — Judgment of the Court (First Chamber), 19 December 2012

1. Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Scope — Determined by national legislation — Not permissible

   (Council Regulation No 1393/2007)

2. Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation No 1393/2007 — Service of judicial documents to a party whose place of residence or habitual abode is in another Member State and who has failed to appoint a representative in the State of the proceedings — National legislation providing for service by placing those documents in the case-file — Not permissible

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Regulation No 1393/2007, Art. 1(1))

1.  See the text of the decision.

   (see paras 19-27)

2.  Article 1(1) of Regulation No 1348/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and repealing Regulation No 1348/2000 must be interpreted as precluding legislation of a Member State which provides that judicial documents addressed to a party whose place of residence or habitual abode is in another Member State are placed in the case file, and deemed to have been effectively served, if that party has failed to appoint a representative who is authorised to accept service and is resident in the first Member State, in which the judicial proceedings are taking place.

   Since Regulation No 1393/2007 lays down the means of transmission of the judicial documents in an exhaustive manner, it does not provide any place for, and therefore precludes, a procedure for notional service such as that in force in Poland.

   Moreover, such a system for notional service deprives of all practical effect the right of the person to be served, whose place of residence or habitual abode is not in the Member State in which the proceedings take place, to benefit from actual and effective receipt of that document because it does not guarantee for that addressee, inter alia, either knowledge of the judicial act in sufficient time to prepare a defence or a translation of that document.

   The objectives of Regulation No 1393/2007, namely improving and expediting the transmission of judicial documents between Member States, cannot be attained, if national provisions undermine in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights and Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms.

   (see paras 32, 34-36, 41, 42 and operative part)