The Supreme Court recently ruled(1) on whether and under which circumstances a service of process is valid in a location different from that originally listed. According to the court, the law of the state that executes the service of process applies.

Under Article 7(1) of the EU Service Regulation (1393/2007), the law of the state executing the service of process applies (unless otherwise requested). The relevant law regulates:

  • the modalities of the service of process;
  • how it must be executed in detail; and
  • the technical details therein.

However, it is still unclear whether local law also answers the question of whether a service of process can be valid in a location different from that stipulated as the recipient's address.

According to the Supreme Court, in order to judge whether the service of process is lawful, a court must generally apply the law governing it. However, in accordance with Section 106(2) of the German Code of Civil Procedure, where the service of process is part of inter-court assistance, then – from an Austrian legal standpoint – the law of the state which executed the service of process applies. Therefore, the relevant Austrian law refers to the law of the respective state.

If a court requests a service of process according to the law of the state executing the request, this does not explicitly result in a service of process in accordance with the Service of Documents Act. Conditional on a resolution according to Section 7 of the act, an unlawful service of process would result if it is delivered to another address. This is because the Service of Documents Act provides for only the "technical details" of the service of process in Austria; these details do not apply in other countries. In accordance with Section 106(2) of the German code, where a service of process is part of inter-court assistance, the Austrian service of process refers to the respective state's service of process.

The Supreme Court ultimately held that a request for service of process can be lawfully interpreted only according to the respective state law. If that law states that the service of process can also take place in a different location, there is no reason to view this as unlawful. In other words, the appropriate location of the service of process – meaning the place where the service of process is served in line with Section 2(4) of the Service of Documents Act – must be determined by the law of the respective state.

For further information on this topic please contact Klaus Oblin at Oblin Melichar by telephone (+43 1 505 37 05) or email (klaus.oblin@oblin.at). The Oblin Melichar website can be accessed at www.oblin.at.

Endnotes

(1) Supreme Court, September 29 2016, 2 Ob 158/16y.

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