Being sued is always unpleasant. However, if you have to deal with a lawsuit from abroad, the annoyance is considerably greater for various reasons, just to mention the often considerable costs. The first question you should ask yourself when you find a claim from abroad in your letterbox is: Is service of the claim effective at all? This is often not the case, which brings you various advantages (e.g. saving time, possibility of taking your own procedural steps, etc.).

Using the example of an action from another EU country, the requirements for effective service and the recommended reaction are described below.

Conditions for the effectiveness of service of process from (EU) foreign countries

According to the EU Service of Documents Regulation (Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of November 13, 2007 on the service of judicial and extrajudicial documents in civil or commercial matters), there are two essential requirements for effective service:

• As a rule, the complaint must be submitted in a German translation. Exceptions can only be considered if you as the defendant can prove that you speak the language of the plaintiff.
• The complaint must be accompanied by the form in accordance with Annex II to the EU Service of Documents Regulation in German, together with instructions on the right to refuse acceptance.

The plaintiff must also be able to provide proof of service. If the foreign court sends the claim by ordinary mail, it is advisable in any case to ignore the incoming mail.

Legal situation if one of the requirements for effective service is not met

Defects in service have the following legal consequences:

Lack of translation of the complaint from abroad

If there is no translation, the following applies:

A right to refuse acceptance exists if the recipient does not understand the language of the original. In the case of English, there is some dispute here, but for all other languages it can be clearly stated that the German recipient can insist on a translation and may therefore refuse acceptance.

In principle, acceptance would have to be refused to the bearer (= post office).

This is practically impossible with a registered letter, as is usually the case, because the contents are not yet known at the time of delivery. The law therefore provides for a period of one week within which the document must be returned using the above-mentioned form, which must also contain the return address.

Lack of form and/or effective instruction in the case of legal action from abroad

As stated above, the translated complaint must also be accompanied by the form in German. If the form is missing or is not in German, there is no effective instruction.

In particular, the lack of effective notification, but also the lack of the form as such, constitutes a defect in service which, unless remedied, will render the service ineffective.

Options for action in the event of delivery errors

A foreign title (judgment) based on an action not validly served would be subject to an obstacle to enforcement in Germany.

As the defendant, you could therefore consider not taking any further action. This applies in any case if there is a lack of effective information. According to the case law of the European Court of Justice (ECJ ruling of 2.3.2017 (C-354/15), the mere expiry of a deadline cannot remedy the lack of instruction. The instruction must therefore be made up for.

However, the legal situation described above is not entirely certain. Especially not if the defendant remains completely inactive. This is because European procedural law endeavors to ensure the smoothest possible legal protection in the European area. The latter means that the plaintiff may be required to respond to the court in the country of origin despite the lack of service.