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Entry into force of EU Regulation no. 1784/2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters

On 1st July 2022, the the (EU) Regulation no. 1784/2022 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters entered into force (hereinafter referred to as the “Regulation”), repealing the previous (EC) Regulation no. 1393/2007.

The Regulation recalls and develops the previous EU legislation on the subject issue, placing itself in line with the discipline provided therein but, at the same time, enriching it with some important innovations.

Indeed, on one hand, the Regulation confirms the methods of service already provided for in the previous EU legislative sources. These are, in particular, the service by transmission of the documents between the transmitting and receiving agencies designated for this purpose by each Member State (subject to the innovations below), the service by diplomatic or consular channels, the service by postal services (i.e. by registered letter with return receipt or other equivalent means) and the direct service (i.e. through the Bailiffs of the Member State where the service is to be effected).

On the other hand, the Regulation adds to the aforementioned modalities an electronic service mechanism which, as such, is something new within the EU relevant legal framework.

In this respect, Article no. 19 of the Regulation provides for the possibility to serve judicial documents (but the same is extended to extajudicial documents thanks to the provision of Article no. 21 of the Regulation) directly on a person who has a known address for service in another Member State by any electronic means of service available under the law of the forum Member State for the domestic service of documents. Such a possibility is subject to the existence of either of the following requirements:

  1. the documents have to be sent and received using qualified electronic registered delivery services within the meaning of Regulation (EU) No 910/2014 (concerning the electronic identification and trust services for electronic transactions in the internal market) and the addressee has to give prior express consent to the use of electronic means for serving documents in the course of legal proceedings;
  2. the addressee has to give prior express consent to the court or authority seised of the proceedings or to the party responsible for service of documents in such proceedings to the use of email sent to a specified email address for the purpose of serving documents in the course of those proceedings and the addressee has to confirm receipt of the document with an acknowledgement of receipt, including the date of receipt;

In line with the above spirit of innovation, the Regulation, in case the interested opted for the traditional method of service through transmitting and receiving agencies, also introduces new (and faster) mechanisms for the transmission of deeds and documents between these agencies. In particular, the Regulation provides that such transmission shall take place through a safe, reliable “decentralised IT system” based on an interoperable solution such as e-CODEX, specifying that the provisions of the aforementioned (EU) Regulation no. 910/2014 shall also apply to this method of transmission.

To the extent of securing the implementation and use of the afore said “decentralised IT system”, the Regulation delegated to the EU Commission the adoption of the relevant implementing acts, entrusting it in particular with the definition of the relevant technical specifications. The EU Commission has already exercised this delegation by the Implementing (EU) Regulation no. 423/2022, which identifies and regulates the technical requirements and methods necessary for the operation of the “decentralised IT system”.

Among the other innovations introduced by the Regulation, it is worth mentioning the introduction of a more complete discipline for the protection of personal data processing (in line with EU Regulation no. 2016/679) and the creation (as well entrusted to the EU Commission and to be finalized within 2nd July 2023) of a detailed monitoring programme of the outcomes, results and effects of the Regulation itself.

Lastly, it should be noted that the Regulation provides for a “postponed” entry into force only for the provisions relating to the transmission of acts and documents between transmitting and receiving agencies by means of the new “decentralised IT system”, stating that such provisions will apply three years after the date of entry into force of the implementing acts adopted by the EU Commission for this purpose and that, in the meantime, the provisions of (EC) Regulation no. 1393/2007 concerning this specific issue will continue to apply (the only ones saved, albeit temporarily, from the repeal effect brought by the Regulation).

 

Pietro Mordiglia

pietro.mordiglia@mordiglia.it