On 4th of March 2020 Vilnius county court (Vilniaus miesto apylinkes teismas) made a controversial decision to revoke the European Order for Payment (EOP) in the case E2-11777-854/2020.
It took 1 year and 3 months for the court to conclude that EOP should have to be revoked. The main reason for such court’s decision is that EOP could not be serviced to the defendant. The court grounded its’ arguments under recital 19 of the Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (EOPR).
In the above mentioned recital is established that <…> “Due to differences between Member States’ rules of civil procedure and especially those governing the service of documents, it is necessary to lay down a specific and detailed definition of minimum standards that should apply in the context of the European order for payment procedure. In particular, as regards the fulfilment of those standards, any method based on legal fiction should not be considered sufficient for the service of the European order for payment.”
However, it is worth to mention that under the EOPR, two options are established how EOP can be serviced to the defendant:
1. service with proof of receipt by the defendant;
2. service without proof of receipt by the defendant.
Since the official registered address of the defendant (a legal entity) was known to the court in the case, EuroClaim thinks that the second way of documents servicing had to be applied by the court. Otherwise, the defendant would be able to abuse its rights and willingly does not accept the documents to be serviced and this is exactly what happened.
The defendant maliciously did not accept the documents, in turn, the court decided to revoke EOP, stating that procedural documents cannot bet serviced properly to the defendant.
EuroClaim views that the court applied EOPR incorrectly. We ground our position under the arguments explained below.
First, under Art. 14, paragraph 1 of EOPR is stated: “The European order for payment may also be served on the defendant in accordance with the national law of the State in which service is to be effected, by one of the following methods:
(a) personal service at the defendant’s personal address on persons who are living in the same household as the defendant or are employed there;
(b) in the case of a self-employed defendant or a legal person, personal service at the defendant’s business premises on persons who are employed by the defendant;
(c) deposit of the order in the defendant’s mailbox;
(d) deposit of the order at a post office or with competent public authorities and the placing in the defendant’s mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time limits.”
Considering the above, the court did not try to service the documents to the defendant using the alternative means established in Art. 14, paragraph 1 of EOPR.
Second, according to the opinion of Mr Advocate General Bot delivered on 9 April 2014 in the joined cases Eco cosmetics GmbH & Co. KG v Virginie Laetitia Barbara Dupuy (C-119/13) and Raiffeisenbank St. Georgen reg. Gen. mbH v Tetyana Bonchyk (C-120/13), it was established that the defendant cannot be deprived of a remedy on the ground of a mere likelihood that service or notification has taken place where in his challenge he proves that he was not informed of EOP. He must, therefore, have an effective remedy of that kind to be able to demonstrate before the court of origin that that order did not reach him.
Explaining this General Advocate’s opinion, it is necessary to stress the argument, that if the defendant wants to dispute the documents servicing fact, it necessary to prove that EOP did not reach him. We think that this is a fully logical argument, not letting the defendant to abuse its’ procedural rights.
Third, in Art. 7, paragraph 2 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (Documents servicing regulation) is established that: “The receiving agency shall take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt. If it has not been possible to effect service within one month of receipt, the receiving agency shall:
(a) immediately inform the transmitting agency by means of the certificate in the standard form set out in Annex I, which shall be drawn up under the conditions referred to in Article 10(2); and
(b) continue to take all necessary steps to effect the service of the document, unless indicated otherwise by the transmitting agency, where service seems to be possible within a reasonable period of time.”
However, in the respective case, ignoring deadlines set by the Documents servicing regulation, it took 1 year and 3 months to conclude that the document servicing to the defendant is impossible. Summing up all arguments provided above, EuroClaim believes that Lithuanian court decision is controversial, because EU legal acts were applied improperly and EU case law was not followed.