Solicitors Family Law Association
National Conference, Southampton 14-16 March 2003
International Committee: Brussels II Workshop
The Quick and the Dead:
International Service under the Brussels Service Regulation 1348/2000
David Truex
Introduction
On 1 March 2001 the European Union introduced
a new law throughout the EU (except Denmark, which declined to participate
in the new scheme) for establishing jurisdiction in matrimonial matters.
Article 2 of Council Regulation (EC) No 1347/2000 specifies the factual
bases on which divorce jurisdiction within the Member States shall
lie. In England and Wales this Brussels provision is supplemented
by an amendment to Section 5 of the Domicile and Matrimonial Proceedings
Act 1973. Section 5 now provides that, in England and Wales, the court
shall have jurisdiction for divorce or judicial separation if (and
only if) the court has jurisdiction under the Council Regulation or,
if no court of a Member State [including England and Wales] has jurisdiction
under the Council Regulation, that the courts in England and Wales
shall have jurisdiction if either of the parties to the marriage is
domiciled in England and Wales on the date when the proceedings are
begun.
The jurisdictional basis for divorce,
judicial separation and nullity proceedings in England and Wales has
been discussed at length in a number of articles, and a few cases,
over the past couple of years. The general rule is that the court
of the Member State which is first seised of proceedings will have
exclusive jurisdiction for divorce, judicial separation or nullity
(and presumably ancillary relief) and any court in another Member
State which is seised of such proceedings second in time must stay
its proceedings until the jurisdiction of the court first seised is
established, and must thereafter decline jurisdiction in favour of
that court (Article 11 (1), (2) and (3)).
The race to commence proceedings first
which this scheme encourages has been criticized, particularly in
England and Wales where the SFLA Code of Practice, the Family Law
Protocol and Civil Procedure Rules all support the good practice rule
of writing a letter before action in most cases, unless this would
be clearly contrary to the best interests of the client. It is now
a truth universally acknowledged that, in cases where choice of the
correct jurisdiction may be crucial to the client’s prospects
for success, the general rule is abrogated in the interests of securing
the tactical advantage of being petitioner/applicant in one’s
chosen jurisdiction. Issue first and ask questions later. If the solicitor
is not quick the client’s case may well be dead.
But is it sufficient just to issue proceedings
first? Article 11 (4) suggests not because taking the required steps
to serve the proceedings is a vital step in securing jurisdiction.
When is a court “first
seised”?
Article 11 (4) of Council Regulation
(EC) No 1347/2000 reads as follows:
11(4) For the purposes of this Article,
a court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an
equivalent document is lodged with the court, provided that the applicant
has not subsequently failed to take the steps he was required to take
to have service effected on the respondent;
or
(b) if the document has to be served before being lodged with the
court, at the time when it is received by the authority responsible
for service, provided that the applicant has not subsequently failed
to take the steps he was required to take to have the document lodged
with the court.
Paragraph (b) applies in jurisdictions
where legal proceedings are first served and then lodged with the
court after service. In England and Wales we need concern ourselves
only with subparagraph (a) as divorce proceedings must be issued before
they are served on the respondent.
It is apparent that Article 11 (4) (a)
requires two steps to be taken before a court shall be deemed to be
seised: lodging the documents with the court and then taking the required
steps to effect service. Merely lodging a divorce petition and having
it issued does not secure jurisdiction under Brussels II. One must
take the required steps to serve. The negative language of the provision
(… provided that the applicant has not subsequently failed to
take the steps…) is curious but the effect seems to be that
the petitioner is responsible for taking some positive required steps
to effect service and if he does not the omission or delay may be
fatal to his case. For example, if, while the “first”
petitioner is sitting on his petition after issuing and not taking
the required steps to serve, the other party subsequently issues divorce
proceedings in another Member State and does take the required steps
to serve, then Article 11 (4) (a) would mean that the party issuing
proceedings second in time shall have secured jurisdiction first.
Note that the date which the court is deemed to be seised is the date
on which the petition is lodged with the court. The subsequent acts
taken to effect service fix the establishment of jurisdiction retrospectively
to the date of lodging. Presumably this means that the party who merely
lodged his petition first cannot claim to be first seised by subsequently
taking the required steps to serve if the “second” party
beats him to the punch by taking such required steps first. The party
who lodged his petition second is deemed to have secured jurisdiction
first and the party who lodged proceedings first, but failed to take
the required steps to serve, is presumably estopped from claiming
“first seised” jurisdiction effective from his date of
lodging. Pity the litigants who first have to test this hypothesis
through the appeal courts!
It is therefore crucial to know what
are the required steps one must take to satisfy the service element
of Article 11 (4) (a).
The Brussels Service Regulation
It is no coincidence that the EU adopted
Regulation No 1348/2000 on service at the same time it adopted Regulation
No 1347/2000 on divorce jurisdiction (Brussels II). Both Regulations
were adopted on 29 May 2000. Brussels II entered into force on 1 March
2001 and the Service Regulation entered into force on 31 May 2001.
It was intended that the two Regulations would commence simultaneously
but apparently implementation of the Service Regulation was delayed
because of administrative difficulties in Germany.
As is apparent from Article 11 (4) (a)
of Brussels II, the Service Regulation is the key to answering the
question as to which Member State is first seised with divorce jurisdiction.
It was essential to have a complimentary service scheme for international
(that is, within the EU) cases to make the Brussels II system work.
There would not have been much sense in introducing Brussels II and
leaving individual Member States to determine questions of service
in accordance with disparate local domestic laws.
Therefore, the two Regulations operate
together to provide a comprehensive regime for establishing divorce
jurisdiction criteria and also to establish uniform criteria for determining
when required steps to effect service of divorce documents have been
taken. Local domestic laws in relation to service of documents within
a Member State continue to operate for domestic cases but when an
international Brussels II issue arises it must have been intended
that the Service Regulation would prevail over local domestic laws.
Where local law is consistent with the Service Regulation, the local
law can continue to be of effect in a Brussels II situation. However,
where the local law conflicts, the Service Regulation must prevail.
The Service Regulation is intended to
establish a mandatory and exclusive scheme for service within the
EU (except for Denmark). Therefore Article 11 (4) (a) of Brussels
II must be interpreted as requiring the applicant to take the required
steps to effect service in accordance with the Service Regulation.
Failure to do so means that the court which issued the proceedings
is not seised of jurisdiction. Failure to comply with the Service
Regulation leaves the door open for the other party to secure exclusive
jurisdiction in another Member State by issuing proceedings subsequently,
but then being first to take required steps to serve.
It is therefore essential to comply
with the Service Regulation as soon as the petition has been issued.
What are the required steps?
Complying with the Service Regulation
Article 11 (4) (a) of Brussels II does
not require actual service to be effected. Merely taking the required
steps to serve is sufficient to secure jurisdiction.
The conscientious family lawyer should
carefully read the Service Regulation and its Explanatory Report.
Really diligent practitioners who aspire to be SFLA Accredited Specialists
should also read the Protocol to the Service Regulation and the Explanatory
Report to the Protocol. Trainees, as well as committing all of the
above to memory, should make a habit of reviewing the regular bulletins
and corrigenda about the Service Regulation and the Protocol which
are issued by the EU and published online at:
www.http://europa.eu.int/comm/justice_home/unit/civil_reg1348_en.htm.
Here are the citations from the EU Official
Journal:
Service Regulation (EC) No 1348/2000
Official Journal L160/37, 30.06.2000
Explanatory Report to the Service [Convention]
Regulation
Official Journal C261/26, 27.08.1997
Protocol to the Service [Convention]
Regulation
Official Journal C261/18, 27.08.1997
Explanatory Report to the Protocol
Official Journal C261/26, 27.08.1997
What follows is a brief summary of the
most important provisions of the Service Regulation.
Article 1
The Regulation does not apply where
the address of the person to be served is not known. Although the
Explanatory Report does not expand on this, it does suggest that the
receiving agency should “try to complete or correct [an address]
with the means at its disposal”. It is also reasonable to infer
that the petitioner is required to make reasonable enquiries. Note
that in some EU jurisdictions postal service, including service to
a PO box, is allowed so it is arguable that any contact details such
as a work address or a care of address (query relatives address, an
email address etc) would be sufficient.
Articles 2 and 3
These require Member States to establish
transmitting and receiving agencies responsible for serving documents
and central bodies to supply information to transmitting agencies
and resolve any difficulties in service.
For England and Wales the contact details
are:
The Senior Master
Foreign Process Section
Room E10
Royal Courts of Justice
Strand
London WC2A 2LL
DX 44450 London/Strand
Tel No: 020 7947 6691/6327
Fax No: 020 7947 6975
Article 7
The receiving agency shall itself serve
the document or have it served in accordance with the law of the Member
State addressed or by a particular form requested by the transmitting
agency, unless such method is incompatible with the law of that Member
State. This is to be effected as soon as possible and a report of
non-service must be made if service is not effected within one month.
Article 8
Receiving agencies may refuse to accept
a document if it is not in the language of the Member State addressed
or a language of the Member State of transmission which the addressee
understands.
Article 9
The date of service is determined in
accordance with the law of the Member State addressed (Note: date
of service is not the date seised of jurisdiction under Brussels II:
see pages 2-4 above).
Articles 12, 13 and 14
These provide for individual Member
States to allow for service by diplomatic or consular agents, service
by post and direct (personal) service.
According to Information published by
the EU at Official Journal C151/4, 22.05.2001, many countries have
made special rules under these provisions. For example, service of
documents in Germany may be effected by registered letter with acknowledgement
of receipt if the documents are in German or have a German translation
or if they are in the official language of the Member State from which
the documents are served where the addressee is a national of that
Member State. Service throughout the United Kingdom may be effected
by first class/air mail. In England, Wales and Northern Ireland direct
(personal) service is not allowed but in Scotland it is.
It is essential to note that documents
for service must pass through the transmitting and receiving agencies.
For example, air mail service direct from a French court or avocat
to a respondent in England would not be valid service. Similarly,
postal service of a divorce petition direct from the Principal Registry
or any other court to a respondent in Belgium would not be valid service,
nor would a solicitor arranging for personal service of an English
divorce petition on a respondent in Belgium
My limited research suggests that many
family lawyers, and some courts, in England and Wales are following
the wrong procedure by simply air mailing divorce petitions to respondents
in Member States. This should be considered invalid service as it
does not comply with the Service Regulation. However, I expect that
in many cases the respondent does not object and simply returns the
acknowledgement of service whereupon the English court accepts jurisdiction.
Nevertheless, serious problems could
arise if, for example, a respondent in the Netherlands received an
English divorce petition by post from an English solicitor and then
decided, presumably on legal advice, not to cooperate. If the respondent
then issues Netherlands divorce proceedings and complies with Brussels
II Article 11 (4) (a) by sending the documents to the Netherlands
transmitting agency he will have secured jurisdiction first in time.
The English court would then be obliged to decline jurisdiction under
Article 11 (3).
In summary, the simple answer is this:
if you want to secure English jurisdiction for divorce and the respondent
is in another EU Member State (except Denmark) the petition should
be issued and then sent straight to the Foreign Process Section at
the Royal Courts of Justice with instructions to serve. As soon as
you do this you have secured English jurisdiction for divorce from
the date you first lodged the petition.
The documents, with any necessary translations,
could be accompanied by Form N224 Request for Service of Document
Abroad - pursuant to CPR 1998 Rule 6.26A. The Form N224 will have
to be adapted for the appropriate court and matter heading and should
require service by the relevant authority designated in accordance
with Council Regulation 1348/2000. See also the Practice Direction
at note 6BPD.1 of the White Book (Autumn 2002, Volume 1, Page 191).
Note that the Service Regulation is set out in full at page 201 et
seq of the White Book.
You will need to make enquiries at the
Foreign Process Section as to whether any fees will be payable. At
present, for example, there is no fee for transmitting documents to
Germany for service but France charges a fee of €69.
Service in Non-Service Regulation
Member States
The Service Regulation only operates
as between Member States. Denmark is the only EU member which has
opted out of the Service Regulation and service there, as in some
other European countries which are not part of the EU such as Switzerland,
is governed by the Hague Convention of 15 November 1965. This Convention
also continues to cover foreign service as between the United Kingdom
and a number of other jurisdictions including United States, Canada,
and most of Eastern Europe including the Russian Federation. This
paper deals only with service as between Member States pursuant to
the Service Regulation. Guidance for service in other jurisdictions
can be sought in Part 6 of the CPR 1998 and FPR 1991, Rule 10.6.
One final tip
When a divorce petition is to be served
out of England and Wales always check that the issuing court has amended
the Notice of Proceedings to show the correct number of days for filing
the acknowledgment of service and, if appropriate, an answer. A Table
of days required is set out in the White Book, Vol 1, page 195 (Autumn
2002), and also in Rayden and Jackson on Divorce and Family Matters,
Vol 1, pages 366-367 (17th ed, 1997). You can work out for yourself
why the number of days given in each Table is different even though
both Tables are correct.
David Truex
13 March 2003
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