Can Service in English be Refused in Litigation Between Businesses Engaged in International Trade?

According to Article 12(1)(a) of Regulation 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Recast Service Regulation), the addressee may refuse service if the document is not written in, or is not accompanied by a translation into, “a language which the addressee understands”.

The million Dollar question is when, precisely, a recipient can be deemed to understand the language of the document. Recital 26 provides some guidance by stating that, for the purposes of assessing whether the refusal was justified, the court should take into account all the relevant information on the file. Regard should be had to any pertinent factual elements, such as

documents written by the addressee in the language concerned, whether the addressee’s profession involves particular language skills, whether the addressee is a citizen of the forum Member State or whether the addressee previously resided in that Member State for an extended period of time.

A recurring question, in this context, is whether an English translation would suffice in proceedings opposing businesses involved in an international commercial transaction, given that the use of English is obviously very common in this field. In fact, the view has been advanced by some authors that service in English should not be refused on language grounds in these circumstances, regardless of whether English is an official language of the Member State addressed (or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected).

What follows is a presentation of a judgment rendered by the Thessaloniki Court of Appeal (Judgment No 1111 of 6 May 2022, unreported), which took an objectionable stance on the matter.

The Judgment of the Thessaloniki Court of Appeal

A Greek company sued a Slovak company before the Court of First Instance of Thessaloniki for damages in a typical commercial dispute. The act instituting the proceedings, accompanied by a translation in English, was transmitted to the competent Slovak authorities for service. However, the defendant refused to accept service, invoking the lack of service in Slovak. The first instance Court ordered that proceedings be stayed, until a Slovak translation was filed by the claimant.

The claimant appealed on the following three grounds. None of them was eventually considered to be well-founded, and the appeal was dismissed.

Communication between the Parties in English

The applicant provided documentary evidence that the communication and commercial correspondence between the parties was conducted exclusively in English. The Court of Appeal held that this piece of evidence did not necessarily implied an adequate understanding of the English language. According to the Court of Appeal, the exchange of electronic messages has a low degree of difficulty compared to legal texts, the understanding of which requires a greater degree of familiarity than that required in everyday transactions.

Operation of an English-language Website

The respondent maintained a website in both Slovak and English. The Court of Appeal, however, dismissed the appellant’s assertion whereby this was poof of the fact that the respondent was not entitled to refuse service. The Court held that what is decisive is the knowledge of the English language by the legal representatives of the appellee. This is not evidenced by the operation of the website in English. Furthermore, the Court of Appeal observed, here, too, that the contents of the website have a low degree of difficulty compared to legal texts, the understanding of which presupposes a greater degree of familiarity than that required in everyday transactions.

Bilingual wording of contracts concluded between the parties

The parties had agreed to conclude two contracts in the course of their commercial cooperation. Both were drawn up in English and Slovak, and were submitted to the court by the appellant. The Court of Appeal regarded the inclusion of the Slovak language as an indication of the fact that the Slovak company did not sufficiently understand the English version, and concluded that, in these circumstances, the use of English in the contracts did not provide evidence of the knowledge of the English language by the respondent.

Comments

Around the same time, two first instance courts had an opportunity to deal with matters raising a similar question. The conclusions they reached depart from those of the Court of Appeal of Thessaloniki described above.

By a judgments a ruling of 18 May 2022 (unreported), the Court of First Instance of Thessaloniki ruled on a dispute between a Greek claimant and a Spanish defendant. The former had served the document introducing the proceedings on the latter together with an English version of the Greek original document. The defendant had refused service. The Thessaloniki Court of First Instance ruled that the refusal was vexatious, given that the parties communicated throughout their business cooperation in English.

In the second case, the claimant served proceedings in Estonia, attaching a translation of the document in English. The Estonian company did not accept service. Following evaluation of the case file, the First Instance Court of Patras held on 30 June 2023 that, having regard to all available information, the language skills of the defendant and, in particular, the defendant’s status as a limited liability company, its financial and business activities, its field of activity related to international trade, and its constant and not occasional cooperation with the claimant, the refusal by the defendant company to accept service of the claim is not justified. The Court stressed, on the one hand, that the defendant was a company engaged in international trade, and the English language is a common and ordinary language in international commercial transactions, with the result that the defendant has the capacity and the ability to communicate through the translation of the document in the  English language.

In the Commentary on the European Service Regulation published by Edward Elgar in 2023 under the editorship of the author of this post and Marta Requejo Isidro, Gilles Cuniberti offers a clear analysis of the issue in question [at para 12.32]. His view is that

Where the applicant and the addressee have used a given language in their previous professional dealings, it is submitted that it would be illegitimate for one of them to refuse to accept a document written in that language. Their previous professional dealings demonstrate that each of the parties understands the relevant language reasonably well … Thus, the existence of communications between the parties in the relevant language, or contractual documents written in the relevant language, should suffice to consider that all parties ‘understand’ the language for the purpose of the Regulation. Whether they actually do should be irrelevant: prior use of the language would then demonstrate that they were happy to bear the costs of translating the relevant documents to understand them, and it would be illegitimate for them to demand translations at a later stage.

Conclusion

The presentation of the Greek case law on the subject matter indicates that courts take inconsistent views on this practically important issue. For the time being, no judgment has been rendered by the Court of Justice to deal specifically with the problema, and no requests for a preliminary ruling have been made.

Courts are entrusted with the task of deciding whether the refusal was legitimate or abusive. The judgment of the Thessaloniki Court of Appeal deviates from the path that the majority of scholars appear to endorse.