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ECJ judgment "LKW Walter" on Article 8 EUTMR 2007: Time limit for refusing to accept service from another European country and national time limits

Problem definition

The possibility of being able to enforce one’s own rights as easily and quickly as possible in cross-border EU business transactions, which is very welcome in principle, has some pitfalls. The author’s experience shows that traders are often overwhelmed when they receive legally relevant mail from abroad. This is not least due to the fact that court documents received from abroad often do not meet the requirements of European law. Art. 8 of the European Service Regulation 2007 (Regulation No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; in short: EUZVO 2007) stipulates that every document that courts within the EU wish to serve must be accompanied by a form set out in the annex to the regulation, which sets out the important rights of the recipient. Without this form, service is ineffective and time limits do not begin to run. Furthermore, Art. 8 of the EUTMR stipulates that the addressee has the right to refuse acceptance or to return the document within one week if they are unable to understand it. This case is very relevant in practice because it is more the rule than the exception that documents are sent without being translated into the recipient’s language.

In its judgment of 7 July 2022 (C-7/21; “LKW Walter”), the CJEU recently dealt with the latter protective right of the recipient – the one-week reflection period – with regard to the important question of how national appeal periods and the period for refusing acceptance (reflection period) interact.

This ruling of the European Court of Justice is of great importance, as it once again makes it clear that the European regulations for the protection of the recipient in cross-border deliveries must be interpreted strictly and that national regulations that reduce this protection are unlawful and therefore irrelevant.

The “LKW-Walter” ruling by the ECJ

In brief, the judgment of the CJEU of 7 July 2022 (C-7/21) was based on the fact that, in an Austrian-Slovenian constellation, the Slovenian courts had deemed an objection lodged from Austria against a Slovenian payment order to be untimely. In this case, the Slovenian courts had based the start of the objection period on the day of service in Austria and thus disregarded the one-week period under Art. 8 EUZVO 2007 when calculating the very short eight-day objection period. Calculated from the date of service, the objection lodged by Austrian lawyers was then also time-barred. The Slovenian courts adhered to their calculation method throughout all instances. The case was only referred to the European Court of Justice in the context of lawyers’ liability proceedings.

With regard to the ultimately only relevant question referred for a preliminary ruling, namely whether the one-week time limit under Art. 8 EUTMR 2007 suspends national time limits for appeals, the ECJ made the following findings in particular:

’35 That possibility of refusing to accept the document to be served constitutes a right of the addressee of that document (judgment of September 6, 2018, Catlin Europe, C 21/17, EU:C:2018:675, paragraph 32 and the case-law cited). The addressee may exercise that right when the document is served or within one week, provided that he returns the document within that period.”

“36 It is also apparent from the case-law of the Court that that right to refuse to accept a document to be served makes it possible to protect the rights of the defense of the addressee of that document, in compliance with the requirements of a fair trial laid down in Article 47(2) of the Charter. Even if Regulation No 1393/2007 is primarily intended to improve the effectiveness and speed of judicial proceedings and to ensure the proper administration of justice, those objectives cannot be achieved by compromising in any way the effective protection of the rights of the defense of the addressees of the documents concerned (see, to that effect, judgment of 6 September 2018, Catlin Europe, C 21/17, EU:C:2018:675, paragraph 33 and the case-law cited).”

“41 The practical effectiveness of the right to refuse to accept a document to be served presupposes, first, that the addressee has been informed of the existence of that right and, second, that he has the full period of one week to assess whether he should accept or refuse to accept the document and, in the event of refusal, to return it.”

’45 However, the objective pursued by Article 8(1) of Regulation No 1393/2007, which is to avoid any discrimination between those two categories of addressees, requires that addressees who receive the document in a language other than that referred to in that provision be able to exercise their right to refuse to accept that document without suffering any procedural disadvantage in view of their cross-border situation.

“46 Consequently, if the document to be served is not drawn up in or translated into one of the languages referred to in this provisionthe period of one week provided for in Article 8(1) of Regulation No 1393/2007 shall not begin to run at the same time as the period prescribed for lodging an appeal under the legislation of the Member State to which the authority which issued the document belongs belongs as otherwise the practical effectiveness of this provision in conjunction with Article 47 of the Charter would be impaired. On the contrary, the period for lodging an appeal must, in principle, begin to run after the expiry of the period of one week provided for in Article 8(1) of Regulation No 1393/2007.”

Conclusion

Recipients of court documents from other EU countries should ensure that the foreign court strictly observes the rights of the recipient in accordance with the EU Regulation. In case of doubt, violations will result in the service being invalid. Time limits under the national law of the country of origin cannot begin to run until effective service has been effected on the addressee. This includes the recipient having the full one-week period for consideration under Art. 8 EUTMR 2007 [Note: The new EUTMR 2020 now provides for a two-week period in Art. 12].

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