In 2008, Mr. and Mrs. Adler, who resided in Germany, started civil proceedings against Mr. and Mrs. Or?owksi, two Polish residents, before the District Court of Koszalin (S?d Rejonowy w Koszalinie). The District Court requested the applicants to communicate to it, within one month, the name of a representative in Poland authorized to accept the service of judicial documents and inform them that, according to the Polish Code of Civil Procedure (Article 1135), in case they failed to do so, any documents addressed to them would have been added to the file case and deemed to be effectively served.
The applicants did not comply with the District Court’s request and, as a consequence, the court’s notice about the date of the hearing and the counterparts’ briefs were placed in the case file and deemed to have been effectively served to them. The applicants did not appear to the hearing scheduled on 5 June 2008 and the claim was eventually dismissed. Lacking any challenge, the judgment became final.
In October 2009, the claimants lodged a new application with the District Court requesting the resumption of proceedings. The applicants argued that they have not been allowed to participate effectively to the trial, due to the fact that judicial documents had not been served to them, in breach of the principle of non?discrimination on grounds of nationality guaranteed by EU law.
On 23 June 2010, the District Court declined to resume proceedings as it found that the Polish Code of Civil Procedure was fully consistent with EU law. However, the Regional Court of Koszalin (S?d Okr?gowy w Koszalinie), to which Mr. and Mrs. Alder appealed, overturned the judgment of the District Court by finding that the fictitious service provided for by the Polish Code of Civil Procedure was not in compliance with Regulation (EC) 1393/2007. The case was referred back to the District Court.
The District Court disagreed with the Regional Court’s conclusions. Accordingly, it decided to stay the national proceedings and to raise a question for preliminary reference before the CJEU, asking, in essence:
“Are Article 1(1) of Regulation... No 1393/2007... and Article 18 TFEU to be interpreted as meaning that it is permissible to place in the case file, deeming them to have been effectively served, judicial documents which are addressed to a party whose place of residence or habitual abode is in another Member State, if that party has failed to appoint a representative who is authorized to accept service and is resident in the Member State in which the court proceedings are being conducted?”.
At the outset, the CJEU engaged in defining the scope of application of Regulation (EC) 1393/2007 in order to assess whether such Regulation also covered cases in which, according to the concerned Member State’s national legislation, there should not be any cross?border service of judicial documents in another Member State. According to the Court, then absence of any precise indications as to the cases in which the service “has to be” made in another Member State according to Article 1(1) of Regulation (EC) 1393/2007 does not mean that such cases have to be determined based on the Member State’s national provisions. To the contrary, the Court applied a systematic interpretation of the Regulation and concluded that there are only two circumstances in which the service of judicial documents falls outside the Regulation’s scope of application: (i) when the permanent or habitual residence of the addressee is unknown; and (ii) when the addressee has appointed a representative authorized to accept the service of judicial documents in the State where proceedings are taking place. In all other cases, when the addressee of the service of judicial documents resides abroad, Regulation (EC) 1393/2007 applies and, therefore, the service must be undertaken according solely to its provisions. It follows that, according to the Court, the cases in which judicial documents have to be serviced abroad cannot be determined by reference to the national provisions of the Member State where proceedings are taking place. This interpretation of Article 1(1) of Regulation (EC) 1393/2007 would indeed undermine the uniform application of EU law.
The Court then proceeded to assess the compatibility of Article 1135 of the Polish Code of Civil Procedure with Regulation (EC) 1393/2007. The Court first noticed that the Regulation contains an exhaustive list of means of transmission of judicial documents, which does not include forms of national (fictitious) service such as the one provided for in Article 1135 of the Polish Code of Civil Procedure. The Court thus concluded that Regulation (EC) 1393/2007 “precludes a procedure of national service such as that in force in Poland” (para. 32).
According to the CJEU, this finding is further corroborated by a teleological reading of the Regulation at stake. The Court stressed that the main objective behind the adoption of this Regulation is to establish a system of intra?Community service for the purpose of the proper functioning of the internal market and to improve and expedite the transmission of documents among Member States. According to the Court, however, these objectives “cannot be attained by undermining 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 for the Protection of Human Rights and Fundamental Freedoms (...)”(para. 35, where it recalled its settled case?law on the point). The Court noticed, in this respect, that several provisions contained in Regulation (EC) 1393/2007 are indeed characterized by the attempt to strike an appropriate balance between the need to increase the efficiency of the transmission procedure, on the one hand, and the full respect of the right of the defence, on the other hand. Taking this into account, the Court excluded that the system for national service provided for in Polish law – which deprives the addressee who resided outside Poland of the right to effectively receive judicial documents and defend himself – may be deemed compatible with the objective of protecting the right of the defence, which is enshrined in Regulation (EC) 1393/2007.
In light of the above, the Court concluded that “Article 1(1) of Regulation No 1393/2007 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, 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 authorized to accept service and is resident in the first Member State, in which the judicial proceedings are taking place” (para. 42).