On 2 June 2022, the CJEU ruled in Case C-196/21 that courts are not ‘applicants’ in the meaning of Article 5(2) of the 2007 Service Regulation and should thus not bear the costs of translating documents sent to foreign based third parties seeking to intervene in the court proceedings.
The reasons given by the CJEU are quite narrow and formalistic. Unfortunately, the decision does not address broader questions such as whether courts may impose translation of documents that they intend to serve, and whether third parties applying for intervening in judicial proceedings may benefit from a right to translation.
Two parents who, it seems, were both residents in Romania, started proceedings in Romania for the dissolution of the marriage and various issues relating to parental responsibility over their child.
During the proceedings, various members of the family (siblings of the child, paternal grand father) residing in France applied for leave to intervene in the proceedings in support of the husband/father of the child.
The issue arose as to whether certain judicial documents to be served on the interveners by the court ought to be translated in French, and most importantly who should pay for it.
Burden of Translation Costs
Art. 5(2) of the 2007 Service Regulation, which has now become Article 9(2) the 2020 Service Regulation Recast, provides:
1. The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.
2. The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs.
In this case, the Romanian court had ruled that the parties to the original proceedings (ie the parents of the child) should bear the costs of translating the documents to be served on the interveners. The parents refused, and argued that they were no “applicant” in the meaning of Art. 5(2), but that the court was the “applicant”, since it had ordered transmission of the relevant documents to the addressees (here, the interveners).
Decision of the CJEU
The CJEU rules that a court cannot be considered as “the applicant” in the meaning of Art. 5(2).
The CJEU puts forward a number of arguments based on the wording of the Service Regulation, which distinguishes between courts and applicants.
It also refers to legislative history, and points to the explanatory report to the 1997 Service Convention, which stated with respect to a similar provision:
“applicant” means in all cases the party interested in transmission of the document. It therefore cannot refer to the courts.
Finally, the CJEU explains that courts are responsible for ensuring fairness of the service process, and that it would be weird if they were themselves applicants, as they would not be impartial in serving this function.
This decision is a bit surprising in the narrowness of its focus. One wonders whether the most important issues raised by the case were not missed.
First, there is no obligation to translate documents under the Service Regulation. Art 5(2) addresses the issue of the burden of the costs of translation if the applicant chooses to translate the relevant document. The applicant is free to serve judicial documents without any translation, as the addressee may never use his right to refuse service on the ground of language. In this case, it seems likely that the addressees were all Romanian emigrés, and it may well be that they did not need any translation. So the first problem in this case was that the Romanian court had decided to impose immediate translation, and then was looking for someone to pay.
Indeed, isn’t the rationale of Art. 5(2) to put the burden of paying the costs of translation on anybody insisting on such translation at a stage where it is unclear whether it will be needed? In other words, Art 5(2) aims at avoiding an externality. It was much easier for the Romanian court to impose the (non existing) obligation in the first place if it knew it would not pay it.
The second issue raised by this case is that the ‘addressee’ was a third party applying to intervene in foreign proceedings. The critical question was therefore whether a party choosing to participate in judicial proceedings (as opposed to a defendant) should have any right of receiving a translation of judicial documents, and if so whether it would extend to documents exchanged by the original parties beforehand.