Postal Service from Greece to Germany – Recalling Henderson v Novo Banco

On 5 April 2021, the Greek Supreme Court issued a judgment relating to a dispute between two German companies. The case revolved around the interpretation of Article 14 of the Service Regulation, according to which “Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent”. The document introducing the proceedings had been served by mail by the lawyer of the appellant. The Supreme Court ruled that a certificate of the Greek post authority is an equivalent document for the purposes of Article 14. The Court referred to the judgment of the CJEU in Andrew Marcus Henderson v Novo Banco SA. A closer look at the facts reveals however some flaws.

Facts

It is not common for litigation to occur in Greece between parties that are all based outside Greece. The following circumstances explain why this happened. The appellant was originally the defendant in proceedings  brought by a Greek company in Thessaloniki. In the course of the proceedings, the defendant – a German company – filed an action on a warranty against another German company in accordance Article 6(2) of the Brussels I Regulation (now Article 8(2) of the Brussels I bis Regulation). The latter company challenged the jurisdiction of the seised court on the ground that it had entered into a choice of court agreement with the Greek whereby jurisdiction had been conferred on the courts of Cologne. The court upheld the choice of court and dismissed the claim for lack of jurisdiction (Court of First instance Thessaloniki 2063/2010, published in: Armenopoulos 2014, pp. 785 et seq).

The case was later abandoned by the Greek company, not by the German company. An appeal on a point of law (which in Greece is known as αναίρεση, i.e., cassation) was then lodged before the Supreme Court. The appellee did not appear in the hearing.

Judgment

Before entering into the examination of the grounds of cassation, the court chose to verify the propriety of notification to Germany. The court referred for this to the judgment of the CJEU in Henderson, stating the following:

The service of a document instituting proceedings by post is valid, even if the acknowledgment of receipt of the registered letter was replaced by another document, however, upon the condition that such document provides equivalent guarantees as regards information provided and evidence.

On the facts, the Supreme Court ruled that:

By virtue of the receipt of the registered letter, dated from 15-07-2019, issued by the post office (in Thessaloniki), the petition, dated from 22-11-2019, to trace the acknowledgment of receipt, and the reply of the Hellenic Post, dated from 17-12-2019, which certifies that the registered letter was delivered to the recipient on the 19 July 2019, and to which a copy of the recipient’s signature is attached, it is evidenced that a true copy of the appeal, duly translated in the German language, and to which a summons is attached, has been duly and timely served by post to the appellee.

Comments

In Henderson, the CJEU was confronted with almost the same facts; the sole difference concerned the nature of the recipient, which in the case at hand was a legal entity, not a natural person. The CJEUD was called on to interpret Article 14 of the Service Regulation, and focused on three aspects: the equivalence of the document produced; the person receiving the document, other than the recipient; the gravity of the standard form set out in Annex II of the Service Regulation.

I will attempt to juxtapose the interpretation given by the CJEU to the findings of the Supreme Court.

The Equivalent Document

The Supreme Court ruled that service was good, based mainly on the confirmation letter issued by the Hellenic Post. Indeed, the latter gave clear information with respect to the document served, and the place and time it was served. However, no reference is made to the person receiving the document.

The CJEU ruled in this respect the following:

… a registered letter allows tracing of the various stages of its route to the addressee. As regards the acknowledgment of receipt, which is completed when that addressee, or, where appropriate, his representative, receives the letter, it indicates the date of delivery, the place of the delivery and the qualities and signature of the person who received that letter … (para 76).

It added:

In those circumstances, if a third party can validly accept a judicial document in the name and on behalf of the addressee, that possibility must nevertheless be reserved for clearly defined situations, to ensure that the rights of the defence of that addressee are observed as fully as possible (para 93).

Hence, an equivalent document lacking any reference to the capacity under which a person received the document on behalf of the party, is no good service. Even more, when the defendant is a legal entity, a sheer reference that the document was served to the recipient, is again no good service: it is impossible to serve directly to the company. The equivalent document must have been received by a person, whose name is stated in the document, acting as an authorized representative.

Failure to Produce the Standard Form (Annex II of the Service Regulation)

The Supreme Court ruled that service was good, without confirming that the standard form under Annex II was handed over to the recipient, or included in the file. It did mention though, that the appeal was translated in German.

The CJEU ruled in this respect the following:

As regards the scope which must be given to that standard form, the Court has already held that Regulation No 1393/2007 does not contain any exceptions to its use (para 55).

It went on to say:

From that consideration and the aim pursued by the standard form set out in Annex II to Regulation No 1393/2007…, the Court has inferred that the receiving agency is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document, by using systematically for that purpose that standard form (para 56).

It concluded:

Consequently, the lack of information resulting from that omission can only be validly remedied by the delivery, as soon as possible and in accordance with the provisions of Regulation No 1393/2007, of the standard form set out in Annex II thereto (para 65).

Hence, the non-production of the standard form by the appellant should have led to a stay of proceedings, until the Receiving Agency remedies the omission. This was not taken into account by the Supreme Court, which presumably considered that the attached translation makes the standard form redundant.

Finally: Who is Allowed to Serve by Post?

The question has popped up more than 15 years ago, again in the course of Greek proceedings involving litigants domiciled in Germany. According to the prevailing view in Germany, postal service may only be effected by a Transmitting Authority declared officially by the Member State in question. Given that Greece has declared the courts as the sole Transmitting Authorities, postal service by a private person, most of the times the lawyer representing the claimant, is deemed to be improper. In addition, by allowing this kind of service, Article 15 of the Service Regulation would be circumvented, and direct service would be introduced to Germany through the backdoor (Germany opposed to this form of service).

The question led to contradicting rulings in Trier and Cologne courts. Burkhard Hess supported a more liberal view, by allowing postal service made by private persons. The issue was finally solved by pertinent legislation. However, the new wording in Article 18 of the Service Recast Regulation nr. 2020/1784 is expected to change the scene: The reference to each Member State has been deleted.