Service of proceedings on the defendant as a safeguard of fairness in civil proceedings: in search of minimum standards from EU legislation and European case-law

Abstract

Service of proceedings on the defendant must be effected in such a way that he is able to adequately defend his legal position and is therefore directly linked to Article 6(1) of the European Convention on Human Rights and to Article 47 of the Charter of the Fundamental Rights of the European Union (EU). The European Court of Human Rights (ECtHR) has dealt with service-related issues on many occasions, and so has also the Court of Justice of the European Union (CJEU), especially when dealing with difficulties detected by national courts facing the application of EU legislation. Indeed, the EU lawmaker has been aware of the relevance of first service of process and has afforded it a very significant attention: when regulating cross-border service of the claim; in the context of specific “EU” civil proceedings (like the EU order for payment procedure, the EU small claims procedure or the EU account preservation order); and in the framework of recognition and enforcement of foreign decisions. It is the aim of this paper to analyse the way in which first service of process has been addressed in European legislation, and also, from the point of view of case-law, the way in which the ECtHR and the CJEU have approached this issue. By analysing both Regulations and case-law it may be possible to extract minimum European standards regarding this procedural safeguard which, undoubtedly, can serve as a starting point for EU legislative implementation and, in a perhaps not-so-distant future, to standardize national codes of procedural law.