CJEU decides whether service out of the jurisdiction is valid if defendant not told of right to refuse to accept documents

http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d57221b3f3166249c0b4e6bee5a7451285.e34KaxiLc3eQc40LaxqMbN4ObNmPe0?text=&docid=167824&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=816856

Regulation (EC) No 1393/2007 (the service regulation) provides that certain documents should be served on a defendant where service is being made out of the jurisdiction of the claimant (and the defendant is domiciled in another Member State). In this case, the English defendants argued that service had been invalid because various documents had not been served on them (including an English translation of the order giving permission to serve outside of Cyprus and a standard form annexed to the regulation). It was said that the English receiving authority "did not consider it useful" to serve on the defendants information about their right to refuse to accept a document if it is not translated..

The CJEU has now ruled as follows:

  1. The receiving authority must tell the defendant about its right to refuse to accept the document if it is not translated (ie Annex II of the regulation). The receiving authority has no discretion about whether to do this.
  2. However, where the form in Annex II is not served, that can be remedied: "the fact that the receiving agency, when serving a document on its addressee, fails to enclose the standard form set out in Annex II…does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation".