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THE EUROPEAN SERVICE REGULATION
ELGAR COMMENTARIES IN PRIVATE INTERNATIONAL LAW
Series Editor: Gilles Cuniberti, Professor of Comparative and Private International Law,
University of Luxembourg
Volumes in this series provide comprehensive commentary and analysis on major directives,
regulations and conventions across the spectrum of Private International Law (PIL), from the
European sphere of the Brussels regime and Rome Regulations to the international sphere that
includes the Hague conference and UNCITRAL. The series addresses the full range of issues
associated with PIL, including jurisdiction, applicable law, and recognition and enforcement of
judgments. The substantive reach extends from family law and succession to international com-
mercial contracts and arbitral proceedings. With a clear and structured format that mirrors the
logic of the instrument itself and facilitates pin-point searches, each Commentary examines the
context, interpretation and implementation of key instruments governing the complex field of
cross-border disputes. Featuring the original text of the respective articles, along with detailed
lists of relevant cases and associated regulation, the Commentaries form valuable reference works
for both scholars in PIL who want a platform for their research, and practitioners who need
clear guidance on interpreting the rules.
For a full list of Edward Elgar published titles, including the titles in this series, visit our
website at www​.e​-elgar​.com​.
THE EUROPEAN SERVICE
REGULATION
A Commentary

Edited by

APOSTOLOS ANTHIMOS
Attorney at law, Thessaloniki Bar, Greece

MARTA REQUEJO ISIDRO

Professor of Private International Law, Universidade de Santiago de Compostela, Spain and Legal
Secretary, Court of Justice of the European Union

ELGAR COMMENTARIES IN PRIVATE INTERNATIONAL LAW

Cheltenham, UK • Northampton, MA, USA

 THE EUROPEAN SERVICE REGULATION:
INTRODUCTION

Andreas Stein1

A. HISTORY – ORIGINS OF THE SERVICE the Forum Member State 0.34

REGULATION0.01 2. Direct Service 0.35
B. THE MAIN NEW FEATURES OF THE RECAST 3. Defendant Not Entering an Appearance 0.37
SERVICE REGULATION: DIGITALISATION 0.04 E. RELATIONSHIP WITH OTHER EU PROCEDURAL
1. Exchanges between Agencies or Central INSTRUMENTS0.40
Bodies0.05 1. The Brussels Ia Regulation 0.42
2. Direct Electronic Service 0.10 a. Refusal ground for recognition and
C. OTHER NOVEL FEATURES 0.14 enforcement of a default judgment 0.42
1. Scope – Cross-Border Service 0.14 b. Protection of the defendant against
2. Assistance in Address Enquiries 0.15 a default judgment in the initial
3. Refusal to Accept a Document for proceedings0.45
Language Reasons 0.19 2. Specific EU Procedures 0.47
a. Structure of the provision 0.21 a. Minimum standards on methods of
b. Use of the standard form 0.22 service0.48
c. Language of the standard form 0.23 b. Exceptional review  0.49
d. Formal requirements for the refusal 0.25 F. THE RELATIONSHIP WITH THIRD STATES,
e. Legal effects of the refusal 0.26 INCLUDING THE UK AFTER BREXIT 0.50
f. Unresolved issues 0.27 1. Denmark 0.50
4. Postal Service 0.28 2. A Lugano Convention on Service? 0.51
5. Further New Features  0.33 3. The UK and Brexit 0.52
D. ELEMENTS OF THE COMMISSION PROPOSAL 4. Other Third States – the 1965 Hague
THAT WERE NOT RETAINED 0.34 Convention and National Law 0.53
1. Obligation to Appoint a Representative in

A. HISTORY – ORIGINS OF THE SERVICE REGULATION

The service of documents as a key component of judicial proceedings with a direct bearing on 0.01
the right to a fair trial,2 which presents particular problems in cross-border situations, has been

1 The author is an official of the European Commission. The views expressed are exclusively his personal opinion and do
not reflect the position of the European Commission.
2 On the fundamental rights aspects of service with particular regard to Art. 6(1) of the European Convention on Human
Rights (ECHR) and Art. 47 of the Charter of Fundamental Rights of the European Union (CFREU) Fernando
Gascón Inchausti, ‘Service of Proceedings on the Defendant as a Safeguard of Fairness in Civil Proceedings: In Search

1
 THE EUROPEAN SERVICE REGULATION

the subject-matter of bi- and multilateral agreements long before the existence of the European
Union, let alone the conferral of powers on the Union in the field of civil judicial cooperation.
Already the 1905 Hague Convention on Civil Procedure3, later replaced by the 1954 Hague
Convention on Civil Procedure,4 dealt with service as one of several elements addressed. The
1965 Hague Convention on the service abroad of judicial and extrajudicial documents in civil
or commercial matters5 was the first multilateral agreement exclusively dedicated to service
introducing central authorities in all Contracting Parties to process requests for service origi-
nating from other Contracting Parties. The Convention has been ratified by 79 States6 to date
including all 27 EU Member States.7

0.02 In order to bring about closer cooperation between the Member States of the European Union,
the Council drew up and recommended the adoption of a Convention in 1997.8 However, the
project of such a convention was overtaken by the Treaty of Amsterdam, bringing civil judicial
cooperation and specifically the cross-border service of documents within the realm of EU
competence.9 The contents of the draft Convention were then essentially converted into an EU
instrument and Council Regulation 1348/2000,10 the first Service Regulation, was adopted in
May 2000 and entered into force the following year as one of the first EU instruments on civil
judicial cooperation. The Regulation was modelled on the 1965 Hague Service Convention
but comprised a number of new features, notably including a new system of transmitting and
receiving agencies in addition to central bodies (allowing the decentralisation of the actual
transmission process), contacts between the agencies largely on the basis of standard forms,
and a strengthening of postal service which could no longer be objected to but only subjected
to conditions.11

0.03 On the basis of an evaluation report in 200412 the Commission proposed a first overhaul which
led to the adoption of the amended Service Regulation 1393/200713 (hereinafter ‘Service
Regulation’). Modifications14 included a more refined system concerning the right of refusal

of Minimum Standards from EU Legislation and EUROPEAN Case-law’ (2017) Journal of Private International Law
475.
3 Available at: https://​www​.hcch​.net/​en/​instruments/​the​-old​-conventions/​1905​-civil​-procedure​-convention.
4 Available at: https://​www​.hcch​.net/​en/​instruments/​conventions/​full​-text/​?cid​=​33.
5 Available at: https://​www​.hcch​.net/​en/​instruments/​conventions/​full​-text/​?cid​=​17.
6 The status table is available at: https://​www​.hcch​.net/​en/​instruments/​conventions/​status​-table/​?cid​=​17.
7 For the last two Member States, Malta and Austria, the accession required an EU authorisation after, as a result of
legislating in that area, the EU had acquired exclusive external competence. The authorisation was provided to both
Member States by virtue of Council Decision 2016/414 of 22.3.2016, OJ 2016 L 75/1.
8 Council Act of 26 May 1997, OJ 1997 C 261/1.
9 See Art. 61(c) and Art. 65(a) of the Treaty establishing the European Community (consolidated version OJ 2002 C
325/33), the latter provision explicitly mentioning the improvement and simplification of the system for cross-border
service of judicial and extrajudicial documents.
10 OJ 2000, L 160/37.
11 Art. 14(2) of Regulation 1348/2000.
12 COM(2004) 603 final.
13 OJ 2007, L 324/79.
14 An overview of the changes is provided by Bartosz Sujecki, ‘Die reformierte Zustellungsverordnung’ (2008) NJW 1628.

2
 INTRODUCTION

for language reasons,15 a uniform regime for postal service with acknowledgment of receipt no
longer amenable to further conditions being attached by Member States16 and the requirement
of a single fixed fee laid down by Member States for the cost of recourse to judicial officers.17

B. THE MAIN NEW FEATURES OF THE RECAST SERVICE REGULATION:

DIGITALISATION

The amendments proposed by the Commission in May 2018,18 adopted in the form of a recast 0.04
in Regulation 2020/1784 of 25 November 2020 (‘the Recast Service Regulation’),19 pursued
two main objectives. Firstly and most importantly, the intention was to modernise the systems
of both exchanges between authorities and agencies and direct service on the recipient through
the introduction of digital communication on a mandatory basis (between authorities) or in the
case of the recipient’s consent (for direct service). The second and more general objective was
to address a broader variety of shortcomings in the clarity of the Regulation or its operation in
practice revealed by evaluations the Commission had carried out,20 apparent from the CJEU’s
case law or identified otherwise, e.g. through academic research.21 This introduction will
provide an overview of the novel features introduced by the Recast Service Regulation but also
shed some light on proposals that were not retained in the legislative process.

1. Exchanges between Agencies or Central Bodies

For the transmission of documents between the transmitting and receiving agencies pursuant to 0.05
Articles 4 et seq. of Regulation 1393/2007 (‘the Service Regulation’), Article 4(2) stipulated that
they could be carried out by any appropriate means provided that the content of the document
received is true and faithful to that of the document forwarded and that all information in it is
easily legible. This technology-neutral formulation permitted electronic exchanges, for example

15 In addition to introducing a standard form for information about the right to refuse and incorporating the CJEU case
law in Case C-443/04, ECLI:EU:C:2005:665 – Leffler on the consequences of a refusal and specifically the possibility of
remedying the absence of a translation, the system was also simplified in that documents could be served in any language
the addressee understands (not only the language of the Member State of origin).
16 Art. 14 of Regulation 1393/2007. The Regulation also abolished the possibility for Member States to oppose the direct
service pursuant to Art. 15 via judicial officers or other competent persons. At the same time, however, it added the
condition of such direct service being permitted under the law of the Member State addressed, thus effectively only
eliminating the possibility for Member States where direct service is permitted in purely domestic matters to object to
such service when originating in another Member State; Thomas Rauscher, ‘Art. 15 EG-ZustellVO’, in Münchener
Kommentar zur ZPO (5th edn, C.H. Beck 2017) para. 3.
17 Art. 11(2) last sub-paragraph of Regulation 1393/2007. The high costs of service by bailiffs, which could also be charged
under Art. 12 of the 1965 Hague Convention in principle but were waived in some bilateral agreements pursuant to
Art. 20 of that Convention, led to frictions; on these problems Burkhard Hess, ‘Neues deutsches und europäisches
Zustellungsrecht’ (2002) NJW 2422. The amendment at least made the cost transparent and predictable for parties.
18 COM(2018) 379 final of 31 May 2018.
19 OJ 2020, L 405/40.
20 Most notably the Report on the application of Regulation (EC) 1393/2007, COM(2013) 858 final of 4 December 2013.
21 For example the evaluation study prepared by a Consortium of European universities led by the MPI Luxembourg
for Procedural Law as commissioned by the European Commission and published in 2017 (JUST/2014/RCON/PR/
CIVI/0082).

3
 THE EUROPEAN SERVICE REGULATION

by email.22 However, to date in day-to-day practice, electronic channels of communication are

not used due to old habits, legal obstacles in national law and lack of interoperability between
national IT systems. The Commission’s impact assessment concluded that in this context
substantial improvement in terms of speeding up cross-border service could be achieved with
little investment, by relying on EU outputs and legal standards that already existed. Specifically,
e-CODEX, a European digital infrastructure for secure cross-border communication in
the field of justice23 developed and managed by a consortium of Member States with EU
co-funding and applied in voluntary pilot projects by a number of Member States, appeared to
be a natural candidate for a decentralised IT system for such electronic exchanges.24

0.06 The central provision in Article 5 of the Recast Service Regulation, which has hardly changed
in the legislative procedure, now establishes an obligation for all communication and exchanges
of documents between the agencies and bodies designated by Member States under the
Regulation to be carried out via a secure and reliable decentralised IT system.25 E-CODEX is
only mentioned as an example in Article 5(1) and not identified as the decentralised IT system,
which remains to be established by an Implementing Act in accordance with Article 25; this
approach was mainly chosen in order to not firmly tie the Regulation to e-CODEX, thus
impeding further technological progress through an even better system in the future.26 Article
27 stipulates that the Commission will develop and make available free of charge reference
implementation software that Member States can use, if they so wish, as their back-end system
instead of a national IT system.27

0.07 Pursuant to Article 5(4), the only permitted exceptions to that rule are either a disruption of the
IT system, making it (temporarily) impossible to use it, or other ‘exceptional circumstances’.
The latter category remains somewhat unspecified but recital 15 provides illustrations of

22 Astrid Stadler, ‘Art. 4 EuZustVO’ in Hans-Joachim Musielak/Wolfgang Voit, ZPO: Zivilprozessordnung (18th edn,
Vahlen 2021) para. 1; Burkhard Hess, ‘Art. 4 EuZustVO’ in Peter Schlosser/Burkhard Hess, EuZPR (5th edn, C.H.
Beck 2021) para. 1.
23 The e-CODEX system consists of a package of software products which can be used to set up an access point for secure
communication. Access points using e-CODEX can communicate with other access points over the internet via a set
of common protocols, with no central system involved. Each access point can be linked, for instance, to a national case
management system in order to allow it to exchange documents securely with other similar systems.
24 In the meantime, and subsequent to the adoption of the Service Recast Regulation, Regulation (EU) 2022/850 of the
European Parliament and of the Council of 30 May 2022 on a computerized system for the cross-border electronic
exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending
Regulation (EU) 2018/1726, OJ 2022, L 150/1, formally established the e-CODEX system by a legislative act,
entrusted its operational management to eu-LISA, an EU Agency, and set out the responsibilities of the Commission,
of the Member States and of the entities operating authorised e-CODEX access points. Such a formal legal basis for
e-CODEX also ensuring stability and continuous funding was requested by many Member States in the deliberations
on the Recast Service Regulation. On 1 December 2021, the Commission has proposed legislation on the further com-
prehensive digitalisation of judicial cooperation in civil, commercial and criminal matters (COM(2021) 759 final and
COM(2021) 760 final).
25 The decentralised nature, which ensures a direct transmission without having to go through a central system, reduces the
number of data-processing entities and is therefore in the interest of data protection. Recital 10 specifically clarifies that
no EU institution is involved in the exchanges. Data protection issues are addressed in recitals 12, 14 and 42.
26 See recital 10; a change of system would thus be possible via a new Implementing Act rather than an amendment to the
Regulation.
27 The use of that software will depend on the state of advancement of national IT case management systems which cur-
rently varies significantly across Member States.

4
 INTRODUCTION

situations in which the original documents are needed in paper format to assess their authen-
ticity or where a disproportionate administrative burden would result from the conversion of
voluminous documentation into electronic form by the transmitting agency.28 In such cases,
documents shall be transmitted by the swiftest, most appropriate alternative means, taking into
account reliability and security.29

In addition, Article 5(2) and (3) of the Regulation refers to the eIDAS Regulation30 as being 0.08
generally applicable to the electronic transmission of documents and clarifies that qualified
electronic seals or signatures as defined there may be used where documents transmitted
require or feature a seal or a handwritten signature. Article 6, which stipulates that documents
transmitted through the decentralised IT system shall not be denied legal effect or considered
inadmissible as evidence solely on the grounds that they are in electronic format, is also mod-
elled on a parallel provision in Article 46 of the eIDAS Regulation.31

Article 5 will only enter into application on 1 May 2025, three years after the entry into force 0.09
of the Implementing Act establishing the decentralised IT system, which was adopted on 14
March 2022.32 During this long transition period Member States who are in a position to
operate the decentralised IT system earlier may notify the Commission accordingly. This will
enable electronic communication prior to the 2025 deadline between the agencies and bodies
of more advanced Member States, as already permitted by Article 4 of Regulation 1393/2007,33
which will remain applicable during this period.

28 The text of Art. 5 (4) and recital 15 are somewhat inconsistent as the former requires transmission via the decentralised
IT system to be impossible due to exceptional circumstances, whilst the latter speaks of cases in which other means of
communication are more appropriate in exceptional circumstances. In any event it appears to be clear that this exception
has to be interpreted narrowly due to the clear intention of the legislator to make transmission via the decentralised IT
system mandatory. Even where very voluminous paper documents would have to be converted it appears questionable
whether a derogation is allowed in cases where the receiving agency serves these documents electronically on the recipient
so that a conversion is needed anyway.
29 Again, the formulation in recital 15 is slightly different in that it primarily refers to the most appropriate other method
and mentions transmission ‘as swiftly as possible’ as one of the criteria, amongst others. On the basis of the language of
the recital, which specifically indicates other secure electronic means or postal service, it would have to be concluded that
the choice of postal service should not be excluded because it is slower than for example simple email.
30 Regulation (EU) 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification
and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, OJ 2014, L
257/73.
31 However, recital 16 clarifies that this is without prejudice to the assessment of the legal effects or the admissibility of
such documents as evidence in accordance with national law. The provision only prevents a different assessment of
these matters solely on the basis of their electronic form as opposed to paper form. The recital further leaves untouched
national law concerning the conversion of documents which leaves the possibility of electronic documents having to be
converted into paper documents for service pursuant to Art. 11(1); on this aspect Oliver Knöfel, ‘Die Neufassung der
Europäischen Zustellungsverordnung (EuZustVO)’ (2021) RIW 479.
32 Commission Implementing Regulation (EU) 2022/423 laying down the technical specifications, measures and other
requirements for the implementation of the decentralised IT system referred to in Regulation (EU) 2020/1784 of the
European Parliament and of the Council, OJ 2022, L 87/9. Vincent Richard, ‘La refonte du règlement sur la notification
des actes judiciaires et extrajudiciaires’ (2021) Revue critique du droit international privé 349, on the long discussions
concerning the length of the transitional period.
33 See above para. 0.05.

5
 THE EUROPEAN SERVICE REGULATION

2. Direct Electronic Service

0.10 One of the most hotly debated issues in the negotiations of the Recast Service Regulation
was the introduction of a possibility to directly effect service electronically on the recipient,
as the digital counterpart to direct postal service. The result in Article 19 of the Regulation
lags behind the level of ambition in the Commission’s proposal but represents a significant
yet cautious step towards the efficiency gains that can be derived from the use of electronic
communication channels.

0.11 First of all, Article 19 sets out that direct service can be effected (only) by electronic means that
are available for domestic service under the law of the forum Member State. This condition,
which was not included in the Commission’s proposal,34 ties a more widespread use of elec-
tronic service to developments in Member States where approaches are currently very divergent
although electronic service is increasingly gaining ground.35 Where that requirement is met,
the provision makes available two variants of direct electronic service, which both require prior
consent36 of the addressee, albeit in different ways.

0.12 The first alternative is electronic service using qualified electronic registered delivery services
within the meaning of the eIDAS Regulation. The requirements for such qualified services
include features that ensure the identification of the sender and the addressee, the preclusion
of undetected data changes, and, through a qualified electronic time stamp, the date and time
of dispatch and receipt.37 The latter requirement obviates the need for an acknowledgment
of receipt. In practice it would appear most likely that qualified electronic registered delivery
services already operating today at the domestic level (often with mandatory participation for
members of legal professions) would extend their activities to other Member States but these
developments remain to be seen. In contrast to the Commission proposal, which was based on
the assumption that the participation in a system using qualified electronic registered delivery
services always implies awareness and acceptance of the transmission of important documents
(including court documents) through such a system, Article 19(1)(a) requires prior consent
of the addressee to electronic service in the course of court proceedings. However, recital 32
explains that such consent can be given in a generalised and abstract fashion for all future court
proceedings.38

0.13 By contrast, under Article 19(1)(b), which permits electronic service via simple email, prior
consent of the addressee has to be expressed with regard to specific court proceedings. This

34 Admissibility under the law of the forum Member State is also a prerequisite for electronic service within the autono-
mous system for service established by Art. 13 of the European Small Claims Procedure as amended by Regulation (EU)
2015/2421.
35 The e-justice Portal provides an overview of all the national systems of service including the admissibility of electronic
service under https://​e​-justice​.europa​.eu/​371/​EN/​service​_of​_documents​_official​_transmission​_of​_legal​_documents.
36 Bartosz Sujecki, ‘Neufassung der Europäischen Zustellungsverordnung’ (2021) EuZW 289 highlights that the Recast
Service Regulation does not specify formal requirements for the expression of consent and concludes that this is left to
the lex fori.
37 Art. 44(1) of the eIDAS Regulation.
38 According to the last sentence of the recital, where under the law of the forum Member State procedural documents
can be served through an electronic system, it is sufficient to express prior consent to the service of documents (without
explicit reference to court proceedings).

6
 INTRODUCTION

requirement excludes, for all practical purposes, service of the document instituting the pro-
ceedings on the defendant by email, since the latter will not give such consent before even being
aware of the fact that a lawsuit has been brought against him.39 In addition to prior consent
in relation to a specified email address, the addressee needs to confirm receipt, including the
date of receipt, in each instance of service.40 However, Article 19(2) permits any Member State
whose law sets stricter conditions for service by email or even prohibits it entirely to specify
additional requirements to guarantee the safety of transmission.41 Recital 33 lists the identi-
fication of sender and recipient, the integrity of the documents sent and protection against
outside interference as examples of issues to be addressed by such requirements. Although
such conditions have to pursue the objective of guaranteeing the security of transmission (and
arguably have to be proportionate to that objective), and although Member States cannot object
to incoming service by email, this leaves Member States with possibilities to render service by
email more complex and less easily practicable.42 However, the acceptance of direct electronic
service remains an important accomplishment, which will also have an impact on further mod-
ernisation in national laws. It is conceivable that the option of attaching additional conditions
to service by email was necessary in order to overcome the scepticism to the introduction of
a novelty by a number of Member States, but that it will disappear at the next revision of
the Regulation. This is what happened in relation to a similar possibility concerning postal
service, which existed under Article 14(2) of Service Regulation (EC) 1348/2000 and was then
dropped in Regulation (EC) 1393/2007.

C. OTHER NOVEL FEATURES

1. Scope – Cross-Border Service

Article 1(1) of Regulation 1393/2007 provided that the Regulation shall apply where a docu- 0.14
ment has to be transmitted from one Member State to another for service there, but it did not
specify in which cases such a transmission is necessary. This created the impression of possibly
leaving some scope for practices avoiding the application of the Regulation through fictitious
domestic service in the Member State of origin, as permitted by the procedural law of that
State (such as the remise au parquet), irrespective of the information on the foreign address of
the defendant at the disposal of the court or judicial authority seised with the proceedings.43
When the CJEU was confronted with such practices, it held that leaving the question of when
a document has to be transmitted to another Member State to national law would undermine
the uniform application of the Regulation. It concluded that the Regulation does not admit the
legal construction of a domestic (fictitious) service for documents addressed to a party whose

39 Even in exceptional circumstances where it is clear between parties that litigation in relation to a particular contentious
issue will be initiated and the future defendant would agree to service by email it needs to be taken into account that
consent has to be given to the court or authority already seised or to the party responsible for service in such proceedings.
40 Recital 33 provides that the recipient can sign and return an acknowledgment of receipt on paper or return an email from
the address of service which could (but does not have to be) signed electronically.
41 This was necessary to ensure the support by a number of Member States reluctant to accept the introduction of service
by email.
42 Richard (n 32) 349.
43 Commission proposal COM(2018) 379 final, page 11.

7
 THE EUROPEAN SERVICE REGULATION

place of residence or habitual abode is in another Member State.44 The Commission proposal
suggested the incorporation of those principles through a scope provision indicating that the
Regulation shall apply to the service of judicial documents on persons domiciled in a Member
State other than the one where the judicial proceedings take place.45 This solution was not
retained, essentially because the introduction of the legal notion of domicile, which had been
absent from the Service Regulation before and required a specific definition referring back
to national law where it was used in EU instruments,46 would have raised intricate follow-up
questions. For example, it was not considered appropriate to accordingly restrict direct postal
service to the Member State in which the addressee has his domicile.47 As a result, the Recast
Service Regulation has chosen a different approach to achieve the same objective without ref-
erence to the concept of domicile. Article 1(1) stipulates that the Regulation shall apply to the
cross-border service of documents. The notion of ‘cross-border service’ is not formally defined
in the main body of the text although recital 5 stipulates that the notion should be construed
as service from one Member State to another Member State.48 However, recital 7 provides that
where an addressee has no known address for service in the forum Member State but has an
address for service in another Member State, a document has to be transmitted to that Member
State for service.49 In addition, and for further clarity, the same recital also expressly spells
out that such situations shall not be construed as domestic service, in particular for fictitious
methods of service.

2. Assistance in Address Enquiries

0.15 As its predecessors, pursuant to Article 1(2), the Recast Service Regulation does not apply in
principle where the address of the person to be served is not known. Nevertheless, it is a fre-
quent occurrence that the address of another party is either unknown from the start or turns
out to be wrong in the course of the proceedings, most notably after an unsuccessful attempt to
serve the document instituting the proceedings on a defendant. In such a situation, plaintiffs
who will often be familiar (or be able to make themselves familiar) with the possibilities existing

44 Case C-325/11, ECLI:EU:C:2012:824 – Alder. The case concerned a Polish provision obliging foreign parties to appoint
a representative in Poland to accept service and permitting service on parties who did not make such an appointment by
placing the document to be served in the case file. The CJEU ruled that the only exceptions from the application of the
Regulation are those envisaged by the Regulation itself, i.e. where the address of the addressee is not known and where
the addressee has appointed an authorised representative in the forum Member State. For further academic analysis see
Nuria Marchal Escalona, Anuario español de derecho internacional privado (2012) 979; Mehmet Tinç, ‘Jurisprudence de la
Cour de justice de l’Union européenne en matière de droits fondamentaux’ (2012) L’Europe des libertés: revue d’actualité
juridique 2012 (nº 39/40) 69.
45 Art. 1(1)(a) of the proposal COM(2018) 379 final.
46 Most notably Art. 62 of the Brussels Ia Regulation 1215/2012.
47 That is what the Commission proposal envisaged in Arts 14, 15 and 15a not only for postal service but also for direct
service and electronic service. Art. 14 of Regulation 1393/2007 applied to persons ‘residing’ in the Member State
addressed, whilst Art. 15 on direct service contained no such requirement.
48 Sujecki (n 36) 287 points out that this formulation, just as the old text of Art. 1(1) does not answer the question of in
which cases service from one Member State to another is necessary.
49 The same formulation referring to a known address for service is used for electronic service in Art. 19(1) (since electronic
addresses are not situated on the territory of a State this should be understood as referring to the physical address).
Interestingly Art. 18 on postal service follows a different approach requiring that the addressee is ‘present’ in another
Member State whilst the corresponding recital 29 continues to refer to the addressee ‘residing’ in another Member State.

8
 INTRODUCTION

in their own Member State to identify another person’s address frequently struggle to tackle
this problem when it occurs abroad.

At the same time, Article 28(2) of the Brussels Ia Regulation,50 as well as Article 19(1) of the 0.16
Brussels IIb Regulation,51 provide that where the defendant does not enter an appearance, the
court has to stay the proceedings so long as it cannot be shown that the defendant has been able
to receive the document instituting the proceedings in sufficient time to enable him to arrange
for his defence, or that all necessary steps have been taken to this end. Where it is clear that the
defendant has not received the document because his address is unknown,52 the continuation of
proceedings presupposes the demonstration that all necessary steps have been taken to enable
the defendant to defend his interests. The CJEU has interpreted this criterion as necessitating
the court seised of the matter to be satisfied that all investigations required by the principles
of diligence and good faith have been undertaken to trace the defendant.53 The Court has not
further specified this condition but it appears likely that it would imply the use of existing
mechanisms to identify the defendant’s address in the Member State where he is presumed to
have one.54

The Commission proposal aimed to provide parties with at least some form of assistance in 0.17
tracing the address of a person to serve with a document where EU law had generally left
them with the obligations as set out above but without help in discharging them.55 The Recast

50 Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012 L 351/1.
51 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in
matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), OJ 2019 L
178/1.The same rule can also be found in Art. 11(1) of the Maintenance Regulation (Council Regulation (EC) 4/2009 of
18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters
relating to maintenance obligations, OJ 2009 L 7/1) and Art. 16 (1) of the Successions Regulation (Regulation (EU)
650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and
enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the
creation of a European Certificate of Succession, OJ 2012 L 201/107).
52 And because of the unknown address the Service Regulation does not apply, so that the application of Art. 19 of
Regulation 1393/2007, instead of these provisions as stipulated in Art. 28(3) Brussels Ia and Art. 19(2) Brussels IIb, is
impossible.
53 Case C-327/10, ECLI:EU:C:2011:745 – Hypoteční banka, paragraph 52; Case C-292/10, ECLI:EU:C:2012:142 –
Cornelius de Visser, para. 55. See also Sabine Corneloup, ‘Cour de justice de l’Union européenne. Aff. C-327/10. – 17
novembre 2011’ (2012) Revue critique de droit international privé 411; Gilles Cuniberti, ‘Arrêt “G. c. de Visser”: influ-
ence de l’absence de domicile connu sur l’application du droit de l’Union’ (2012) Journal de droit européen 187.
54 See the Commission’s application report COM(2013) 858 final, point 3.2.1 and Knöfel (n 31) 477. In Cornelius de Visser,
para. 29, it is reported that such action had been taken and the Dutch consulate in Munich had stated, on request, that
Mr de Visser was not listed in any population register in the Netherlands.
55 See Thomas Rauscher, ‘Art. 1 EG-ZustellVO’, in Münchener Kommentar zur ZPO (5th edn, C.H. Beck 2017) para. 13
on the lack of an obligation under Regulation 1393/2007 to carry out address enquiries. The Commission’s application
report COM(2013) 858 final, point 3.2.1 describes scattered efforts to use the EU Taking of Evidence Regulation
1206/2001 in order to locate addressees for service, but also rightly casts doubt on the appropriateness of that avenue,
taking into account that requests under Art. 4(1)(b) of that Regulation require the indication of the names and addresses
of the parties to the proceedings, and thus presuppose that these addresses are known.
A notable exception is the EU Maintenance Regulation 4/2009. Its Art. 11(1) repeats the language of Art. 28(2) Brussels
Ia but Art. 51 (2)(b) in conjunction with Art. 61(2)(a) task the Central Authority with locating the address of the main-
tenance debtor or creditor.

9
 THE EUROPEAN SERVICE REGULATION

Service Regulation has introduced a new Article 7 to that effect, the wording of which leaves
the Commission proposal virtually unchanged. In its first paragraph it obliges every Member
State to provide at least one out of three possible types of assistance. The first is to indicate des-
ignated authorities to which transmitting agencies may address requests on the determination
of the address of a person to be served.56 The second is the possibility for persons from other
Member States to submit requests directly to domicile registers or other publicly accessible
databases, including electronically, by means of a standard form via the European e-justice
Portal. Finally, Member States have the option of providing detailed guidance, through
the European e-justice Portal, on how to find the address of persons to be served. Another
noteworthy feature is the fact that, in addition to communicating their choice and names and
contact details of the relevant authorities providing assistance, under Article 7(2)(c) Member
States also have to stipulate whether, in cases where the address indicated in the request for
service is incorrect, they launch address enquiries with their domicile registries or other data-
bases on their own initiative. This is not an obligation or even an option under Article 7(1) but
such services are already provided today in some Member States and information about such
arrangements is of obvious value to parties who then do not have to rely on Article 7(1).

0.18 Although the alternatives under Article 7(1) are admittedly not of equivalent effectiveness and
the mere provision of information under letter c) is the ‘easiest way out’ for Member States to
comply with their obligations, the implementation of any of the existing options represents
a tangible improvement over the prior status quo.

3. Refusal to Accept a Document for Language Reasons

0.19 The system of the Service Regulation does not require a translation of documents per se57
and leaves it to the assessment of the parties whether a translation is necessary but then
counter-balances this by a right of refusal about which the recipient has to be informed. This
is a complex balancing act of procedural economy and efficiency on the one hand and the pro-
tection of the addressee on the other hand, which has given rise to some problems as well as to
a significant amount of case law both by the CJEU and at the national level.58

0.20 In relation to this provision, the Recast Service Regulation goes beyond the relatively modest
modifications in the Commission proposal and has given a substantial overhaul to the refusal
regime.

56 The proposal had suggested the court seised, not the transmitting agency, as the entity to make such a request. Of course
this modification does not make a difference where the courts are the transmitting agencies, as is the case in Germany.
57 By contrast, Art. 5(3) of the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil and Commercial Matters enables Central Authorities to require documents to be written in or translated into the
official language of the State addressed, a possibility of which a many Contracting States, including some EU Member
States, have made use (see the table available at: https://​www​.hcch​.net/​en/​instruments/​conventions/​status​-table/​?cid​=​
17).
58 CJEU decisions notably include Case C-443/04, ECLI:EU:C:2005:665 – Leffler; Case C-14/07, ECLI:EU:C:2008:264 –
Ingenieurbüro Weiss; Case C-519/13, ECLI:EU:C:2015:603 – Alpha Bank Cyprus; Case C-384/14, ECLI:EU:C:2016:316
– Alta Realitat; Case C-354/15, ECLI:EU:C:2017:157 – Henderson.

10
 INTRODUCTION

a. Structure of the provision

The new Article 12 is drafted in a much more logical fashion. Where Article 8(1) of Regulation 0.21
1393/2007 wrapped up the existence of a right to refuse, the obligation to inform about it, the
deadline and form of the refusal in one somewhat confusing paragraph,59 the new text breaks
this up into three different paragraphs. The first sets out – without any substantive change –
the situations in which the addressee may refuse to accept service of a document for language
reasons.

b. Use of the standard form

The second paragraph governs the obligation for the receiving agency to inform the addressee 0.22
about that right via the standard form in the Annex to the Regulation, albeit subject to some
important changes. In the past the CJEU has consistently held that this obligation existed
without any possible exception and without any margin of appreciation,60 even where the
receiving agency noted that the document was to be served in its own official language61 so
that a refusal ground is excluded by definition. By contrast, the new Article 12(2) obviates the
need for such information where the document is written in, or accompanied by a translation
into, a language referred to in Article 12(1)(b), i.e. the official language of the Member State
addressed.62 This is fully in line with the approach that the addressee has to accept service in the
official language of the Member State where he is served, irrespective of the extent to which he
understands that language, since the same would be the case in the event of domestic service
in that Member State. It is also easy for the receiving agency to check whether a document is
drafted in its own official language.63

c. Language of the standard form

Article 8 of Regulation 1393/2007 did not specify in which language the standard form for the 0.23
information had to be sent to the addressee. In practice it was frequently sent in all language
versions to avoid any problems,64 although it was widely (if not universally) held that the trans-

59 Strikingly, Art. 8 did not straightforwardly stipulate the right to refuse anywhere; the existence of that right was merely
indirectly implied by the duty to inform about it.
60 In Case C-519/13, ECLI:EU:C:2015:603 – Alpha Bank Cyprus the Court was specifically asked whether there are any
exceptions to the obligation of information by using the standard form and it replied in the negative. This was confirmed
in Case C-354/15, ECLI:EU:C:2017:157 – Henderson, para. 55. See also Laurence Idot, ‘Absence de traduction d’un
acte’ (2015) Europe (Novembre Comm. nº 11) 46; Peter Mankowski, ‘Zivilprozessrecht: Verbindlichkeit des Formblatts
nach Anhang II der EuZVO – Heilung bei Nichtverwenden durch die Empfangsstelle’ (2015) EuZW 836.
61 For the purpose of simplicity this chapter only refers to ‘the official language’ of the Member State addressed and does
not deal with the option of several official languages dealt with in Art. 12(1)(b).
62 Richard (n 32) 349. The Commission’s application report COM(2013) 858 point 3.7 had concluded that in such cases
attaching the standard form might mislead addressees into thinking that they do have a right to refuse but then did not
suggest changes in its proposal in that respect.
63 Things may be more intricate in the case of direct service where the information obligation applies in accordance with
Art. 12(6) but for postal and now electronic service there is no receiving agency or other body in the Member State
addressed which could inform about the right to refuse, so that this is incumbent on the authority or party effecting
direct service. On this aspect under Regulation 1393/2007, see Thomas Rauscher, ‘Art. 8 EG-ZustellVO’, in Münchener
Kommentar zur ZPO (5th edn. C.H. Beck 2017) paras 26–29.
64 Astrid Stadler, ‘Art. 8 EuZustVO’, in Hans-Joachim Musielak/Wolfgang Voit, ZPO: Zivilprozessordnung (18th edn,
Vahlen 2021) para. 2.

11
 THE EUROPEAN SERVICE REGULATION

lation into the official language of the addressed Member State was sufficient.65 The Recast
Service Regulation now stipulates in Article 12(2) that the standard form has to be used in at
least two languages, the language of the Member State of origin and the official language of
the Member State addressed. Interestingly, the same provision adds an obligation to provide
the standard form in the official language of another Member State if there are indications
that the addressee understands that language. This is well intentioned in order to benefit the
addressee but it may raise tricky questions in practice. It is unclear what the threshold for such
indications is and what the consequences of non-compliance would be. The significance of this
provision also depends on who is called upon to make that assessment. If the plaintiff effects
direct postal service and chooses not to translate the document into the official language of the
Member State addressed, it appears logical and should be expected to add the standard form
in the language of the document to be served even where it is not the official language of the
Member State of origin. But for a receiving agency it may already be difficult to determine in
which language a document is written and even more difficult to second guess which languages
the addressee may understand. Since it is guaranteed in any event that the addressee receives
the information in the official language of the Member State addressed, which he has to accept
in relation to the document to be served, these circumstances plead for stricter standards in
relation to the existence of such an obligation and/or a generous assessment of the effects of
non-compliance.66

0.24 Finally, Article 12(2) takes into account the fact that some Member States may translate the
standard form into the languages of a third country, e.g. for the benefit of a large migrant
community. In that event Member States are obliged to make that translation available via the
e-Justice Portal but that does not trigger any obligation to use that language version under the
Regulation.67

d. Formal requirements for the refusal

0.25 On the formal requirements for refusal, Article 8(1) of Regulation 1393/2007 stipulated that
this can take place either at the time of the service (in case the document is served by a person
who can be at the receiving end of the refusal) or by returning the document to the receiving
agency within the short deadline of one week. Following a literal interpretation of the provision
it was indispensable to return the document,68 although Annex II also constituted a declaration
of refusal which raised the question whether the return of that declaration without attaching

65 Rauscher (n 63) para. 4; Mankowski (n 60) 837. The Commission’s application report COM(2013) 858, point 3.7
considered this an open question but did not attempt to resolve it in its proposal. The CJEU only repeatedly held that the
obligation to inform the addressee about the right to refuse does not cause particular difficulties for the receiving agency,
given that it suffices to enclose the preprinted text as provided for by the Regulation in each of the EU official languages,
e.g. in Case C-384/14, ECLI:EU:C:2016:316 – Alta Realitat, para. 66; it was not clarified whether it is obligatory to
enclose it in all language versions.
66 The unmistakably strict language in Art. 12(2) would appear to lead to a procedural mistake, if the information is not
provided in the official language of the Member State addressed, even if it is provided in another language the addressee
understands. However, the interests of the addressee do not appear to be harmed, notwithstanding a procedural mistake,
where the addressee has received the Annex in a language he understands.
67 The preceding sub-paragraph on the language understood by the addressee only relates to EU official languages.
68 The text only requires the return of the document without any declaration of refusal because of a missing translation
so that in practice problems of interpretation might arise where the document served is simply returned without any
declaration of refusal.

12
 INTRODUCTION

the document served would have to be considered invalid.69 The Commission proposal would
have extended the deadline to two weeks and required the return of the Annex in all cases in
order to increase clarity. But that could have led to similar problems in situations where the
addressee sends an unequivocal statement of refusal but omits the standard form in the Annex.
In Article 12(3), the Recast Service Regulation has kept the extended deadline but has chosen
yet another approach in order to avoid, to the largest extent possible, the risk of invalidity of
a refusal for purely formal reasons. The addressee now has the choice of either returning the
standard form in the Annex or another written declaration stating the refusal of acceptance
because of the language in which the document was served. This formulation makes it clear that
the document served does not necessarily have to be returned, and that any clear expression of
the intention to refuse acceptance for language reasons is sufficient.70

e. Legal effects of the refusal

As regards the legal effects of refusal, the case law of the CJEU provided important clarifi- 0.26
cations on the consequences of a justified refusal, in particular in relation to the possibility
of remedying the absence of a translation71 or the lack of information on the right of refusal
via the standard form,72 which had already been incorporated into Article 8(3) of Regulation
1393/2007.73 The Commission proposal for the Recast Service Regulation complemented this
by a new paragraph setting out clearly that in the event of a refusal it is for the court seised
with the legal proceedings, in the course of which service was carried out, to verify whether
the refusal was well founded.74 The accompanying recital contained a non-exhaustive list of
indicators of the language skills of the addressee.75 In the legislative process, only the recital was
maintained but it was extended in order to clarify that, where the court seised of the proceed-
ings decides upon verification that the refusal was not justified, that court should consider an
appropriate way of informing the addressee of that decision in accordance with national law.76
This clarification is based on the case law confirming that the procedural consequences of an

69 See the Commission’s application report COM(2013) 858 point 3.7. Invalidity is assumed by Rauscher (n 63) para. 6
70 It remains to be seen whether and under which conditions the mere return of the document without any further
explanation, which was in principle sufficient pursuant to Art. 8(1) of Regulation 1393/2007, could still be considered
a written declaration of refusal. The wording of Art. 12(3) requiring the indication of the reason for refusal would appear
to militate against such a generous interpretation.
71 Case C-443/04, ECLI:EU:C:2005:665 – Leffler.
72 Case C-519/13, ECLI:EU:C:2015:603 – Alpha Bank Cyprus paras 62 et seq., where the CJEU applies the same reasoning
as for the lack of a translation.
73 Now Art. 12(5) of the Recast Service Regulation.
74 COM(2018) 379 final, Art. 8(4).
75 COM(2018) 379 final, recital 6 which indicates as factual elements to be taken into account documents written by the
addressee in the language concerned, whether the addressee’s profession involves such language skills (for example,
teacher or interpreter), whether the addressee is a citizen of the Member State where the judicial proceedings take place,
or whether the addressee previously resided in that Member State for some time. On questions in relation to the noto-
riously difficult assessment of language skills, Burkhard Hess, Europäisches Zivilprozessrecht (2nd edn, De Gruyter 2021)
para. 8.19, with examples from German case law concerning German language skills that were assumed to exist among
the employees of Facebook Ireland dealing with legal matters in view of the fact that Facebook has millions of users in
Germany and offers its services including the terms of use in the German language.
76 Recital 26.

13
 THE EUROPEAN SERVICE REGULATION

unjustified refusal are governed by the lex fori in principle77 and cautiously formulated in order
to avoid interference with national procedural law. It is nonetheless valuable since the addressee
needs to know that he cannot remain inactive in the ongoing proceedings relying on the (unjus-
tified) refusal in the face of potentially adverse consequences, such as a judgment by default.

f. Unresolved issues
0.27 The questions of whose language skills precisely are relevant, especially in bigger companies,
and how developed those skills have to be in order to conclude that the addressee understands
that language within the meaning of Article 12 Recast Service Regulation, are notoriously diffi-
cult to assess and depend on the circumstances of each individual case. This does not appear to
be easily amenable to general clarifications in legislation and the CJEU has clarified in its case
law that a full evaluation of the facts and evidence is necessary in each individual case without
relying on any assumptions.78 Similar difficulties may arise in relation to the threshold for the
sufficient quality of a translation. However, on this latter aspect recital 25 does spell out that
the translation of documents in order to ensure compliance with the Recast Service Regulation
is without prejudice to the recipient’s ability to challenge the correctness of the translation in
accordance with the law of the forum Member State.79 That appears to point in the direction
of Article 12, mainly aiming to enable the addressee to understand a document to an extent
that puts him in a position to arrange for his defence but not requiring a flawless translation,80
leaving other questions evolving around possible shortcomings of the translation and their
procedural consequences to a consideration under the lex fori.

4. Postal Service

0.28 In relation to postal service with acknowledgment of receipt, the Commission proposal implied
three amendments which were only partially retained in the Recast Service Regulation as
adopted.

0.29 First of all, the introductory formulation of Article 14 of Regulation 1393/2007 (‘Each Member
State shall be free to effect service …’) left room for the interpretation that direct postal service

77 Case C-384/14, ECLI:EU:C:2016:316 – Alta Realitat with the only proviso that the full effectiveness of the Regulation
must be ensured; Rauscher (n 63) paras 18, 19.
78 In Case C-14/07, ECLI:EU:C:2008:264 – Ingenieurbüro Weiss, para. 85 the Court specifically decided that a contrac-
tual clause choosing a language for correspondence and performance of the contract cannot give rise to a presumption
of knowledge of the agreed language but just serves as evidence to be considered in the overall assessment. Case
C-384/14, ECLI:EU:C:2016:316 – Alta Realitat, para. 79 turned that into the general principle that when per-
forming such examination the court cannot rely on any presumption. For further analysis see Bartosz Sujecki, ‘Zum
Annahmeverweigerungsrecht gem. Art. 8 EuZVO bei vertraglicher Bestimmung der Vertragssprache’ (2008) EuZW
37; Burkhard Hess ‘Übersetzungserfordernisse im europäischen Zivilverfahrensrecht’ (2008) IPRax 400; Cyril Nourissat
‘Des connaissances linguistiques et de la signification des actes’ (2016) Procédures (nº 7) 22.
79 It also clarifies that the translation needs to comply with requirements concerning the suitability for translations under
the law of the Member State of origin including, where applicable, the need for a certified translation.
80 CJEU Case C-14/07, ECLI:EU:C:2008:264 – Ingenieurbüro Weiss, para. 73 clarified in relation to the document insti-
tuting the proceedings that a translation must make it possible to identify with a degree of certainty the subject-matter
of the claim and the cause of action as well as the summons to appear before the court whereas documents, which have
a purely evidentiary function and are not necessary for the purpose of understanding the subject-matter of the claim and
the cause of action, do not give rise to a right of refusal if they are not translated; Stadler (n 64) para. 1.

14
 INTRODUCTION

is admissible only where authorities of the Member State effect service but not where service
is the responsibility of the parties to the proceedings themselves.81 The new more neutral
wording of Article 18 of the Recast Service Regulation (‘The service of judicial documents may
be effected …’) removes any residual doubt that postal service is available as a method of direct
service, irrespective of who is responsible for service in the Member State of origin.82

The second proposed change consisted in the mandatory use of a specific acknowledgment of 0.30
receipt to be provided in an Annex to the Regulation.83 The background to this proposal was
the finding that, whilst postal service is a very popular, expeditious and low-cost method of
cross-border service, it suffers from a rather high failure rate. As opposed to specific certificates
existing in Member States for domestic postal service, which signal to the postal operator that
the document served is a judicial document requiring extra care and specific information to be
provided on the slip to ensure compliance with the requirements for postal service, no such
standards exist in cross-border postal service. The standardised return slip of the Universal
Postal Union does not indicate that service relates to a court document and provides only very
rudimentary information about the recipient. As a result, compliance with the requirements for
the validity of service under the law of the forum Member State can frequently not be verified
because the return slip is filled in incompletely or improperly.84

The proposal for such a specific acknowledgment of receipt was intensely considered85 but 0.31
ultimately not taken up by the legislator, not even for optional use. The decisive argument was
the concern over both increased costs (also for the training of the delivery staff of postal opera-
tors) and limited improvements, given that – as opposed to domestic situations – cross-border
service is a rather rare occurrence, so that, even with training, staff will be prone to making
mistakes. As a result, postal service will continue to suffer from the same relative degree of
unreliability as in the past.

Finally, the proposal aimed at incorporating, in a new Article 14(3), the case law of the CJEU 0.32
concerning the admissibility of substitute postal service on a person other than the addressee.
The Court held that such service is compatible with the Regulation, provided that it has been
effected on an adult person who is inside the habitual residence of the addressee and is either
a member of his family or an employee in his service.86 The Commission intended to use this
formula in order to create a minimum standard concerning persons to be regarded as eligible
‘substituting recipients’ if the postal service provider cannot hand over the document to the

81 The Commission application report COM(2013) 858 final, p. 13 indicates that at least one Member State, France,
followed such a restrictive interpretation. Knöfel (n 31) 483 provides an overview of the conflicting views in German
jurisprudence and doctrine.
82 Unfortunately recital 29 still uses the formulation now abandoned in the main body of the text. This has to be considered
a technical oversight in the transformation of the final version of the agreed amendments into a recast document as the
final step prior to adoption.
83 Art. 14(2) of the Commission proposal.
84 These findings are described in more detail in the Commission’s application report COM(2013) 858 final, pp. 13 and
14.
85 Also in conjunction with other potential measures such as a specific colour of envelope for this type of registered mail
(inspired by similar practices existing in Member States for judicial documents).
86 Case C-354/15, ECLI:EU:C:2017:157 – Henderson, paras 93–96, building on the minimum standard for service laid
down in Art. 14(1)(a) of Regulation No 805/2004 on the European Enforcement Order for Uncontested Claims.

15
 THE EUROPEAN SERVICE REGULATION

addressee in person.87 However, in the course of negotiations it turned out that the text of the
proposal, stating that upon meeting these requirements service by post shall be considered as
validly effected ‘irrespective of the law of the Member State of origin’, did not sit well with the
objective of establishing a minimum standard. In particular, Member States with stricter stand-
ards not allowing any service on third persons did not agree to an obligation to accept service
on third persons when effected abroad.88 Ultimately, this element of the proposal was relegated
to recital 30 with the explicit addition that such service is valid unless the law of the forum
Member State only allows service of the document in question on the addressee in person.

5. Further New Features

0.33 It should also be mentioned briefly that the Recast Service Regulation has incorporated the
CJEU’s case law on the interpretation of the notion of ‘extrajudicial documents’,89 includes
a new provision on the collection of data to assess the impacts of the Regulation90 and com-
prises a strongly reinforced clarification, not strictly necessary legally speaking, that in the
cross-border service of documents the fundamental rights of all persons involved and specifi-
cally EU law on data protection have to be observed.91

D. ELEMENTS OF THE COMMISSION PROPOSAL THAT WERE NOT RETAINED

1. Obligation to Appoint a Representative in the Forum Member State

0.34 As set out above, the Recast Service Regulation has shed light on the scope of the instrument
including the clarification that where the addressee has a known address for service only abroad,
the fictitious construction of domestic service on the basis of national law is not admitted.92 In
close connection with this change, the Commission proposed expressly permitting an obliga-

87 Commission proposal COM(2018) 279 final, p. 13

88 In Henderson, the provision of Portuguese law in question allowed postal service on third persons without restrictions
and against that background the decision established minimum standards. It transpires from para. 88 of the decision,
stating that ‘Regulation No 1393/2007 does not … exclude the possibility that, in certain circumstances, a third party
may receive the document in question’ that upon the fulfilment of the conditions set out the Regulation allows the
admissibility of such service on third persons but that it does not prescribe such admissibility. This character does not
transpire very clearly from the operative part of the judgment.
89 Recital 8 echoes the decisions in Cases C-14/08, ECLI:EU:C:2009:395 – Roda Golf & Beach Resort; C-223/14,
ECLI:EU:C:2015:744 – Tecom Mican in stating that the term includes documents drawn up or certified by a public
authority or official, but also other purely private documents of which the formal transmission is necessary for the pur-
poses of exercising, proving or safeguarding a right or a claim in civil and commercial law. Knöfel (n 31) 473 criticises
this case law because of an excessive burden on national courts and authorities; that argument has been considered and
dismissed by the CJEU in Tecom Mican. See also Cécile De Boe, ‘Arrêt “Tecom Mican”: la notion d’acte extrajudiciaire
au sens du règlement relatif à la signification et la notification des actes judiciaires et extrajudiciaires’ (2016) Journal
de droit européen 103; Peter Mankowski, ‘Zivilverfahrensrecht: Zustellung außergerichtlicher Schriftstücke nach der
EuZVO’ (2015) EuZW 950.
90 Art. 34(3) and (4) as well as recital 43 spell out, however, that Member States have to transmit such data ‘where available’
and are thus not obliged to collect it. However, where Member States use the reference implementation software to be
developed by the Commission, that software will collect such information in an automated fashion.
91 Arts 31 and 32 and recitals 41 and 42, inserted primarily upon the insistence of the European Parliament.
92 See above para. 0.14.

16
 INTRODUCTION

tion under national law for foreign parties to appoint a representative to serve documents in the
proceedings on them in the Member State of the court seised. This option would have been
available only after that party has been duly served with the document instituting the proceed-
ings.93 In addition, the proposal offered a cost-saving alternative to the appointment of a repre-
sentative by expressing consent to electronic service. Where the addressee did not choose either
of those options, the use of any method of service admitted under national law – including
fictitious methods – would have been allowed on the condition that the addressee has been duly
informed about this consequence.94 However, this proposal – aimed at enhancing procedural
efficiency without an undue burden on the addressee who could always opt for electronic service
instead – was not taken up by the legislator since it was considered as running counter to the
objective of eliminating the use of fictitious methods of service to the greatest extent possible.

2. Direct Service

Direct service via judicial officers, officials or other competent persons of the Member State in 0.35
which service is sought, without having to go through transmitting and receiving agencies, was
provided for pursuant to Article 15 of Regulation 1393/2007 only where such direct service is
permitted under the law of that Member State.95 That is the case only roughly in half of the
Member States and this method of service is of practical relevance predominantly where service
is carried out by bailiffs as a liberal profession.96 The main change proposed by the Commission
was to make direct service available everywhere by dropping the conditions of its permissibility
in the Member State addressed. In addition, the suggestion was made to no longer require
the applicant to have an interest in the proceedings, thereby allowing transmitting agencies
and courts seised with the proceedings to use this way of service and thus turn directly to the
judicial officers responsible without having to involve the receiving agency.97 Finally, the pro-
posal envisaged remedying the lack of certainty, on which professions or competent persons are
permitted to carry out service under this provision,98 through an obligation to communicate the
relevant information to the Commission.

93 Such an obligation was at issue in Case C-325/11, ECLI:EU:C:2012:824 – Alder and was considered incompatible with
Regulation 1393/2007. However, the situation assessed was the first service on the parties outside the forum Member
State, in this case the plaintiffs. The Commission proposal would have overruled the case law on incompatibility for the
service of documents other than the one instituting the proceedings.
94 Commission proposal COM(2018) 379 final, Art. 7a and explanatory memorandum, p. 12, which also pointed out that
an obligation to appoint a representative for the acceptance of service exists in law and practice in several Member States.
95 It also needs to be admissible in the forum Member State in order to be considered valid service by the court seised with
the proceedings in question; Rauscher (n 16) para. 2.
96 Such as in France, Belgium, Greece, and the Netherlands. A full overview of the admissibility of such direct service can
be found in the Commission’s application report COM(2013) 858, p. 14.
97 Such direct access would not imply practical improvements where all the bailiffs effecting the service are also receiving
agencies as is the case in Belgium, the Netherlands and Luxembourg. By contrast, in France the receiving agency has
not been decentralised and is the National Association of Bailiffs (Chambre Nationale des Huissiers de Justice). At the
same time, the new formulation was part of an effort to align the wording for all methods of direct service by omitting
a reference to the person or entity eligible for using such methods. Accordingly, Arts 14, 15 and 15a of the Commission
proposal COM(2018) 379 final all use the same neutral introductory formulation: ‘Service may be effected …’.
98 The Commission’s application report COM(2013) 858, p. 14/15, had identified this lack of transparency as
a shortcoming.

17
 THE EUROPEAN SERVICE REGULATION

0.36 The Recast Service Regulation only picked up on the latter element in its Article 20(2) in rela-
tion to those Member States that allow direct service and added the publication of that infor-
mation via the e-Justice Portal. In particular, the mandatory availability of direct service did not
find support in Member States not currently allowing such service since they would have had to
create a new infrastructure without seeing the benefits of such an investment. The restriction
of access to direct service to persons with an interest in the proceedings was also maintained.99

3. Defendant Not Entering an Appearance

0.37 The proposed amendments to the complex provision of Article 19 of Regulation 1393/2007,
dealing with the situation of the defendant not entering an appearance, were not taken on board
in the legislative process so that Article 22 of the Recast Service Regulation remains virtually
unchanged with the exception of minor formulation changes not affecting the substance.100

0.38 The provision contained two cases of options for Member States. First, Member States had the
possibility (but no obligation) to enable the court seised of the proceedings to give judgment
even where no certificate of service or delivery of the document instituting the proceedings has
been received, provided that the conditions laid down in Article 19(2) of Regulation 1393/2007
are met. Second, for the otherwise harmonised EU-autonomous procedure for relief from the
expiry of the time for appeal against a judgment, Member States could (but did not have to)
stipulate a maximum time period for the admissibility of an application for relief pursuant to
Article 19(4) of Regulation 1393/2007, subject to the sole condition that this period could not
be less than one year from the date of the judgment. The Commission considered the possibility
that Member States making such declarations could lead to undesirable fragmentation, failing
to ensure the uniform application of the Regulation on the crucial point of the protection of the
rights of the defence.101 Therefore, the proposal would have eliminated the need to opt into the
regime for issuing a judgment without proof of service or delivery and would have introduced
a new uniform maximum period of two years (extended from the current minimum of one
year102) for a request for relief applicable throughout the Union. However, these attempts at

99 Art. 20(1) added that the interest of the party has to relate to ‘particular’ judicial proceedings. On the questionable
meaning of this addition Knöfel (n 31) 484.
100 Richard (n 32) 349 regrets the missed opportunity of simplifying one of the most complex rules of the Regulation.
101 On this assessment see the Commission’s application report COM(2013) 858 final, p. 15 and the proposal COM (2018)
379 final, p. 13.
102 This extended period not only would have constituted a compromise between the Member States that have made
a declaration under Art. 19(4) of Regulation 1393/2007 (the vast majority of those Member States had opted for the
minimum period of one year) and other Member States that have not made such a declaration (hence not providing
for any absolute time limit concerning an application for relief). It would have also cushioned the effects of the CJEU
decision in Case C-70/15, ECLI:EU:C:2016:524 – Lebek paras 50–58, in which it was held that where a Member State
had entered a declaration under Art. 19(4) indicating a maximum period of one year the defendant could not rely on
provisions of the national law of that Member State allowing an application for relief under more generous conditions
as such a possibility would be contrary to the principle of legal certainty and the immediate binding force of EU reg-
ulations. In the case referred to this prevented a defendant domiciled in Poland who only became aware of a French
judgment more than one year after the judgment in proceedings where the plaintiff had indicated an incorrect address
of the defendant in France from being able to obtain relief under Art. 540 of the French Code of Civil Procedure which
stipulates a relative time limit of two months after the defendant became aware of the judgment but without any abso-
lute time limit counting from the date of the judgment. It needs to be taken into account, however, that this apparent
restriction on the defendant’s right of defence also has a protective effect if (as in the case decided) the judgment has to

18
 INTRODUCTION

harmonisation were unsuccessful in the deliberations. In the end, the only real novelty in the
Recast Service Regulation consists in an increase of transparency concerning Member States’
choices by the publication of their declarations on the European e-Justice Portal.103

Another element of the Commission proposal was the introduction of a new paragraph requir- 0.39
ing the court seised with the proceedings, in which no certificate of service or delivery has
been received, to make reasonable efforts to inform the defendant that court proceedings have
been initiated against him or her through any available channels of communication, including
means of modern communication technology, for which an address or an account is known
to the court.104 This requirement was not designed as a legal prerequisite for issuing a default
judgment upon fulfilment of the conditions in Article 19(2) of Regulation 1393/2007. It was
simply meant to mandate the use of available options to contact the defendant – for example via
a known social media account which may be in the court files – not in order to effect service but
to increase the likelihood of the defendant’s awareness of the proceedings.105 Although there
was some openness to the idea and comparable practices are already applied in some Member
States, there was strong resistance to keeping this in the main body of the Regulation. Some
Member States considered such practices as incompatible with their procedural rules while
others objected to the inclusion of an obligation without a clear indication of what the conse-
quences of non-compliance would be. In the end, a text closely modelled on the Commission
proposal was included in a recital with the proviso that such channels of communication should
be used unless incompatible with national law.106 Whilst this may provide some useful guid-
ance, the precise effect of such a recital is unclear and open to question.107

be enforced in another Member State. Since the defendant cannot rely on relief available under national law he is also
not bound to use such relief (with often short deadlines after awareness) in order to not lose the refusal ground under
Art. 45(1)(b) of the Brussels Ia Regulation because he failed to challenge the judgment when it was possible to do so.
In Lebek the defendant had missed the deadline for an application for relief under French law so that the Polish courts
had initially denied a ground for refusal, but as a result of the CJEU ruling such ground existed. This intricate interplay
between the extraordinary relief under the Service Regulation and the Brussels Ia Regulation needs to be understood to
comprehensively evaluate the effects of the Court’s decision. The attempt to incorporate these effects of the Lebek deci-
sion on the relationship between extraordinary relief under the Regulation and under national law, as well as its impact
on the recognition and enforcement, into a short paragraph in the Commission’s proposal COM(2018) 379 final, Art.
19(6), proved to be over-ambitious and was abandoned in the negotiations.
103 Art. 22(2) and (4), in the last sub-paragraph respectively.
104 Commission proposal COM(2018) 379 final, Art. 19(3).
105 The Commission proposal COM(2018)379, p. 13 called this an ‘alert message’ and also explained that the purpose was
to inform about the existence of proceedings or the issuance of a judgment, thus clarifying that such a message could
also be sent after a default judgment has been handed down on the basis of what is now Art. 22(2) of the Recast Service
Regulation. A message to a Facebook account, even though inadmissible as a method of service, would appear to be more
likely to reach the addressee than many other methods applied under national law to serve documents.
106 Recital 35.
107 Recitals give effect to the obligation pursuant to Art. 296 TFEU to state the reasons on which legal acts are based and
serve as an important interpretive tool. By contrast, they cannot create or expand obligations which do not result from the
enacting terms of the legal act. Nonetheless, recital 35 stipulates that ‘every reasonable effort should be made to inform
the defendant’ – ‘should’ being the term relating to an obligation in EU recitals – although there is no provision in the
main body of the text stipulating such an obligation. However, efforts to reach a defendant with an unknown address via
a known social media account may be of relevance in the context of the requirement pursuant to Art. 28(2) of the Brussels
Ia Regulation to take all necessary steps to trace the defendant; on this aspect see above para. 0.16.

19
 THE EUROPEAN SERVICE REGULATION

E. RELATIONSHIP WITH OTHER EU PROCEDURAL INSTRUMENTS

0.40 The Recast Service Regulation, as its predecessors, is mainly concerned with the transmission
of documents to be served from one Member State to another for service there in cross-border
situations. It does not harmonise the national law on service, and in particular on admissible
methods of service, in any way. This transpires clearly from Article 11(1), which clarifies
that in transmission via transmitting and receiving agencies the latter serve the document in
accordance with their national law, without specifying any minimum standards.108 Only Article
22(4) creates an EU-autonomous relief procedure for situations in which (irrespective of the
service methods used) the defendant did not have knowledge of the document instituting the
proceedings without any fault on his part.

0.41 However, service-specific provisions can also be found in other instruments of the EU acquis
on civil judicial cooperation and should briefly be touched upon here to describe their contents
and their interplay with the Recast Service Regulation, in particular with regard to the situation
where the defendant has not entered an appearance and a default judgment has been issued.109

1. The Brussels Ia Regulation

a. Refusal ground for recognition and enforcement of a default judgment

0.42 Article 45(1)(b) of the Brussels Ia Regulation, the traditionally most practically relevant ground
for refusal of the recognition and enforcement of judgments under the Brussels Ia Regulation,
applies where a judgment was given in default of appearance if the defendant was not served
with the document instituting proceedings in sufficient time and in such a way as to enable him
to arrange for a defence unless the defendant failed to commence proceedings to challenge the
judgment where it was possible for him to do so.110

0.43 This rule protects defendants against the cross-border enforcement of decisions where due to
service problems they have not been able to arrange for their defence entirely, irrespective of
whether the proceedings resulting in that decision were domestic or of a cross-border nature.111
Unlike the initial version of this rule in Article 27(2) of the 1968 Brussels Convention, there is

108 Art. 11(1) only provides that the transmitting agency may request a particular method of service if compatible with the
law of the Member State addressed.
109 Other EU instruments also comprise other occasional references to the service of documents, e.g. in the context of the
obligation pursuant to Art. 43 (1) of the Brussels Ia Regulation to serve the certificate, which is issued by the court of
origin and certifies the enforceability of a judgment, on the person against whom enforcement is sought prior to the first
enforcement measure. These instances are not further assessed here since they do not give rise to particular observations
concerning the relationship with the Service Regulation.
110 The same rule can be found in most other EU instruments on recognition and enforcement, notably in Arts. 38(b)
and 39(c) of the Brussels IIb Regulation 2019/1111, Art. 40(b) of the Successions Regulation 650/2012. A notable
exception is the Maintenance Regulation 4/2009 where exequatur has been abolished without any possibility of opposing
recognition and enforcement for decisions given in Member States bound by the 2007 Hague Protocol (Art. 17) in
a fashion comparable to those of the EU-specific procedures. On the mandatory availability of an exceptional review in
the Member State of origin pursuant to Art. 19 along the same lines as under the European Small Claims procedure in
its most recent version, see Gascón Inchausti (n 2) 510.
111 MüKo/Gottwald (2017), Brüssel Ia-VO Art. 45 para. 22.

20
 INTRODUCTION

no longer a reference to the correctness of service,112 so that what is relevant for this assessment
is not the formal correctness under the Service Regulation and national law but exclusively the
question of whether the service effected permitted the defendant to effectively prepare a defence,
including the aspect of having sufficient time to do so. Therefore, a mere formal irregularity,
which does not adversely affect the rights of defence, is no longer sufficient to prevent the
application of the exception to the ground justifying non-recognition and non-enforcement.113

Even where the requirements for refusal are met in principle, pursuant to Article 45(1)(b) 0.44
a defendant loses that ground if he does not challenge the default judgment where it was pos-
sible for him to do so. The CJEU holds the defendant to an ambitious standard of diligence
in that respect since it decided that such a possibility to challenge refers not only to ordinary
appeals against a judgment but also to extraordinary challenges such as an application for relief
under Article 22(4) of the Recast Service Regulation.114

b. Protection of the defendant against a default judgment in the initial proceedings

The Brussels Ia Regulation also provides a second layer of protection in its jurisdictional pro- 0.45
visions. Article 28, which only applies where a defendant is sued in a Member State other than
the one where he is domiciled,115 obliges courts to examine their international jurisdiction ex
officio in such situations where the defendant does not enter an appearance. Moreover, Article
28(2) also stipulates that in principle the court has to stay the proceedings as long as it is not
shown that the defendant has been able to receive the document instituting proceedings in
sufficient time to enable him to arrange for his defence, or that all necessary steps have been
taken to that end.

However, that provision has lost most of its practical relevance due to the fact that, as far as 0.46
service of documents between EU Member States is concerned, Article 28(3) links back and
affords precedence to the more sophisticated and detailed system of the Service Regulation.116
Article 19 of Regulation 1393/2007 (now Article 22 of the Recast Service Regulation117) shall
apply to such default situations where the document instituting proceedings has to be transmit-

112 Art. 27(2) stipulated a ground for refusal where the defendant was not ‘duly’ served with the document which insti-
tuted the proceedings in sufficient time to enable him to arrange for his defence. In its decision in case C-522/03,
ECLI:EU:C:2005:606 – Scania the Court of Justice confirmed the need for service to have been effected in full compli-
ance with the 1965 Hague Convention.
113 Case C-283/05, ECLI:EU:C:2006:787 – ASML, para. 47. Astrid Stadler, ‘Art. 45 EuGVVO’ in Hans-Joachim
Musielak/Wolfgang Voit, ZPO: Zivilprozessordnung (18th edn, Vahlen 2021) para. 9 points out that whilst the lack of
correctness of service does not automatically trigger a refusal ground it is still of relevance in the assessment.
114 Case C-70/15, ECLI:EU:C:2016:524 – Lebek.
115 But not in relation to third-country defendants.
116 Under Art. 28(4) of the Brussels Ia Regulation, where the Service Regulation does not apply, Art. 15 of the 1965 Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters with
a similar mechanism shall apply where the document instituting the proceedings had to be transmitted pursuant to that
Convention. However, the Convention no longer applies between EU Member States – including Denmark, see below
point F – but is of relevance in the context of the parallel provision in Art. 26(3) of the Lugano Convention vis-à-vis
Switzerland, Norway and Iceland.
117 On the limited modifications to this provision by the Service Recast Regulation see para. 0.37 ff above.

21
 THE EUROPEAN SERVICE REGULATION

ted from one Member State to another in accordance with that Regulation.118 The mechanism
under that provision combines the principle of Article 28(2) with specific requirements for
issuing a default judgment even where no certificate of service or delivery has been received.119
But it also creates an EU-autonomous procedure for an extraordinary relief from the expiry of
time for appeal against default judgments where the defendant did not have knowledge of the
document instituting the proceedings in sufficient time to enter a defence without any fault on
his part.120

2. Specific EU Procedures

0.47 The EU has enacted legislation on what is referred to as ‘EU-specific procedures’ in relation
to the certification of a decision as a European Enforcement Order for uncontested claims
(EEO),121 the European Order for Payment Procedure (EOP)122 and the European Small
Claims Procedure (ESCP).123 All these procedures result in decisions that are directly enforcea-
ble in other Member States without declaration of enforceability and without any possibility to
challenge recognition and enforcement in the Member State addressed, including on grounds
of the lack of service in time to arrange for a defence.124 This complete elimination of controls
in the Member State of enforcement rendered inoperable a key element of the protection of
defendants not entering an appearance under the Brussels Ia Regulation against cross-border
enforcement through a refusal ground.125 As a consequence, a need was felt for enhanced
safeguards in the Member State of origin.126 These additional safeguards consist of two main
elements in all these cases.

118 It needs to be taken into account however that according to its Art. 1(2) the Recast Service Regulation does not apply
where the address of the person to be served is unknown and the same holds true for the 1965 Hague Convention.
In those situations the general standard of Art. 28(2) applies. As interpreted by the CJEU in Case C-292/10,
ECLI:EU:C:2012:142 – De Visser, paras 56 et seq. in order to avoid a denial of justice vis-à-vis the plaintiff, this standard
does not prohibit a judgment following fictitious service (e.g. by public notice) if the court was satisfied that all investi-
gations required by the principles of diligence and good faith have been undertaken to trace the defendant.
119 Art. 22(2).
120 Art. 22(4).
121 Regulation 805/2004, OJ 2004 L 143/15.
122 Regulation 1896/2006, OJ 2006, L 399/1 as amended by Regulation 2015/2421, OJ 2015 L 341/1.
123 Regulation 861/2007, OJ 2007 L 199/1 as amended by Regulation 2015/2421, OJ 2015 L 341/1.
124 Art. 5 EEO, Art. 19 EOP and Art. 20(1) ESCP all stipulate the absence of any possibility to oppose the recognition
of the decision. The only justification for a refusal of enforcement under these instruments is the existence of an earlier
irreconcilable judgment where that irreconcilability could not be raised in the proceedings in the Member State of origin.
125 This approach was developed for the EEO as a pilot project for the abolition of exequatur planned to be extended to the
entire scope covered by the Brussels I Regulation 44/2001. However, when the Brussels Ia Regulation 1215/2012 was
adopted, a different model was chosen, making judgments immediately enforceable in other Member States without
declaration of enforceability but still allowing an examination in the courts of the Member State of enforcement and
a refusal of enforcement upon the application of the judgment debtor if the requirements for one of the refusal grounds
are met, Arts. 39 and 46 of the Brussels Ia Regulation. This left the European procedures dealt with here as the only
instances of a total abolition of any possibility to oppose recognition and enforcement on account of the lack of service of
the document instituting the proceedings.
126 Gascón Inchausti (n 2), 485 et seq. and 505 et seq. describing these mechanisms in detail as well as the different approach
chosen in relation to the service of the European Account Preservation Order (EAPO) under Regulation 655/2014 OJ
2014 L 189/59, which establishes another specific EU procedure.

22
 INTRODUCTION

a. Minimum standards on methods of service

By contrast to the Recast Service Regulation and in addition to its requirements,127 these 0.48
instruments establish detailed minimum standards concerning admissible methods for the
service of documents instituting the proceedings.128 They distinguish between methods which
guarantee and provide evidence that the defendant himself has received the document, either
through an acknowledgment of receipt signed by the defendant or through an attestation of
the person effecting the service,129 and other methods without such guarantee but with a suf-
ficiently high degree of reliability, including for example substitute service on other persons in
the defendant’s household.130 Since no fictitious methods of service feature on this exhaustive
list, irrespective of whether the service is domestic or cross-border, both the issuance of a deci-
sion and its cross-border enforcement based on such methods are excluded.131

b. Exceptional review
In addition, all these instruments make an exceptional review of a judgment/order for payment 0.49
available in two different scenarios. The first one counter-balances the admission of service
methods which do not provide evidence that the defendant has personally received the docu-
ment instituting the proceedings. Only where one of those methods has been used, the defend-
ant must have access to a review where service was not effected in sufficient time to enable
him to arrange for his defence without any fault on his part.132 The second scenario concerns
situations in which the defendant was properly served but prevented from entering a defence
by reason of force majeure or due to extraordinary circumstances without any fault on his part.133

127 All the instruments clarify that they are without prejudice to the Service Regulation including notably the right of refusal
for language reasons.
128 The EEO is not really a procedure in order to obtain an enforceable decision on the merits governed by EU legislation
but a procedure in order to certify a decision as enforceable in other Member States without a declaration of enforcea-
bility. The minimum standards for service are thus not directly applicable to the procedure leading up to an enforceable
decision but have to be verified as a prerequisite for the certification of a title as EEO.
129 Art. 13 EEO and Art. 13 EOP (‘service with proof of receipt by the defendant’).
130 Art. 14 EEO and Art. 14 EOP (‘service without proof of receipt by the defendant’). Art. 13 ESCP takes a different
approach by establishing a hierarchy in terms of requiring postal service with acknowledgment of receipt or electronic
service under certain conditions in the first place, and only in the case that is not possible permitting any of the methods
provided for in Arts 13 and 14 EEO.
131 In addition, under Art. 14(2) of both EEO and EOP, the permissible methods not providing irrefutable evidence of
receipt by the defendant cannot be used if the latter’s address is not known with certainty.
132 Art. 19(1)(a) EEO; Art. 20(1)(a) EOP; Art. 18(1)(a) ESCP. This review is broadly the same as the one pursuant to Art.
23(4) Recast Service Regulation including the requirement for the defendant to act ‘promptly’ (EEO, EOP) or ‘within
a reasonable time after the defendant has knowledge of the judgment (Recast Service Regulation). It is worth noting
however that Art. 18 ESCP as amended by Regulation 2015/2421, OJ 2015 L 341/1 requires the availability of the
exceptional review irrespective of the method of service used; it also aligns this review with the principle underlying the
refusal ground in Art. 45(1)(b) of the Brussels Ia Regulation by denying access to the review where the defendant failed
to challenge the judgment when it was possible for him to do so. Finally, the new Art. 18(2) ESCP replaces the need to
act promptly by a 30-day deadline from knowledge of the contents of the judgment. The EOP was not modified similarly
in the same amending Regulation.
133 Art. 19(1)(b) EEO, Art. 20(1)(b) EOP, Art. 18(1)(b) ESCP. The textbook case is the defendant who had an accident
and was therefore unable to enter a defence within the time limits.

23
 THE EUROPEAN SERVICE REGULATION

F. THE RELATIONSHIP WITH THIRD STATES, INCLUDING THE UK AFTER BREXIT

1. Denmark

0.50 Since by virtue of Articles 1 and 2 of Protocol No. 22 to the TFEU Denmark does not take
part in measures in the field of civil judicial cooperation, it is neither bound by the Recast
Service Regulation nor subject to its application.134 However, the agreement concluded in 2005
between the EU and Denmark on the service of judicial and extrajudicial documents in civil
or commercial matters135 provided not only for the application of rules identical to those of the
Service Regulation at the time between EU Member States and Denmark, it also established,
in its Article 3, a mechanism for the alignment of the agreement with future amendments to
the Regulation. According to those rules, Denmark is obliged to notify its intention to imple-
ment the amendments within a short period of 30 days from the adoption of the amendments.
In the absence of such notification the agreement shall be considered terminated.136 In com-
pliance with these rules, Denmark has notified the Commission on 22 December 2020 of its
decision to implement the amendments of the Service Recast Regulation,137 so that they will
apply to cross-border service between EU Member States and Denmark.

2. A Lugano Convention on Service?

0.51 Since 2013 negotiations have been carried out on another international agreement aiming to
extend the application of the rules of the Service Regulation also to the relations between the
Contracting Parties to the 2007 Lugano Convention,138 i.e. Switzerland, Norway and Iceland,
in addition to the EU and Denmark. One of the most intricate aspects of those negotiations is
the development of a mechanism for the adaptation of the agreement to future modifications
of the Regulation. It is not foreseeable at this stage whether or when these negotiations can be
successfully concluded.

3. The UK and Brexit

0.52 Unlike in other areas where EU instruments on civil judicial cooperation will continue to be
of practical relevance to some extent in the relations between EU Member States and the UK
after the end of the transition period on 31 December 2020, the Withdrawal Agreement139
led to a rather sharp termination of the rules of the Service Regulation. Article 68(a) of that
Agreement stipulates that Regulation 1393/2007 only applies to the service of documents that

134 Recital 48.

135 OJ 2005 L 300/55, approved by Council Decision of 27 April 2006 (2006/326/EC), OJ 2006 L 120/23.
136 Art. 8(2) and (4) of the agreement, the latter stipulating that the parties have a 90-day period to take a decision not to
terminate.
137 Published in OJ 2021 L 19/1.
138 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2007
L 339/3.
139 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union
and the European Atomic Energy Community (2019/C 384 I/01), OJ 2019 C 384 I/1.

24
 INTRODUCTION

have been received in the State addressed before the end of the transition period.140 As a result,
even in proceedings that were initiated before 1 January 2021 and are therefore still covered by
the Brussels Ia, Brussels IIa or the Maintenance Regulation as regards jurisdiction as well as
the recognition and enforcement of the judgments ultimately issued, the service of documents
received in the State addressed after that date are no longer governed by the Service Regulation.

4. Other Third States – the 1965 Hague Convention and National Law

As stated earlier,141 all EU Member States are parties to the 1965 Hague Convention. However, 0.53
the Convention no longer applies between EU Member States – including Denmark142 – but is
of relevance in particular vis-à-vis Switzerland, Norway and Iceland in the context of the 2007
Lugano Convention143. Matters of service between an EU Member State and a third country
that is not a Contracting Party to the 1965 Hague Convention are governed either by a bilateral
agreement or by national law.

140 Art. 68(a) spells out that this applies irrespective of whether it is a receiving agency, a central body, a diplomatic or
consular agent, a postal operator or a judicial officer in the State addressed.
141 See para. 0.01 above.
142 See para. 0.50 above.
143 Art. 26(3) of the 2007 Lugano Convention.

25
 CHAPTER I

GENERAL PROVISIONS
 ARTICLE 1
SCOPE

Apostolos Anthimos

1. This Regulation applies to the cross-border service of judicial and extrajudicial documents
in civil or commercial matters. It does not apply, in particular, to revenue, customs or
administrative matters or to the liability of a Member State for actions or omissions in the
exercise of state authority (acta iure imperii).
2. With the exception of Article 7, this Regulation does not apply where the address of the
person to be served with a document is not known.
3. This Regulation does not apply to the service of a document in the forum Member State on
a representative authorised by the person to be served, regardless of the place of residence
of that person.

A. WHEN THE REGULATION APPLIES  1.01 C. FIELD OF APPLICATION RATIONE MATERIAE  1.34
1. Cross-Border Service 1.02 1. Civil/Commercial Matters 1.34
2. When to Serve Abroad 1.07 2. Exceptions 1.37
B. WHEN THE REGULATION DOES NOT APPLY 1.15 3. Judicial and Extrajudicial Documents 1.40
1. Service to Persons of Unknown Address 1.16 a. From filing to judgment  1.41
2. Service to a Representative Ad Litem 1.23 b. During enforcement 1.44
3. Service to an Authorised Representative 1.24 c. Extrajudicial acts 1.46
4. Service of Documents in Arbitration D. APPLICATION RATIONE PERSONAE AND
Proceedings1.33 GEOGRAPHICAL APPLICATION 1.49

A. WHEN THE REGULATION APPLIES

The Regulation applies in civil and commercial matters, which are falling ratione materiae, 1.01
ratione personae, and ratione temporae within the ambit of the Regulation. The latter is exam-
ined under Article 37. The remaining aspects will be examined later on (see B–D). Member
states have to respect and give priority to the Regulation over any domestic rule.1 In addition,

1 Examples: Germany, see Michael Rohls/Martin Mekat, ‘Das Zusammenspiel der Vorschriften der EuZustVO und der
ZRHO bei der Zustellung gerichtlicher Schriftstücke an fremde Staaten’ [2017] IPRax 241 f; Carl Friedrich Nordmeier,
‘Neuerungen im deutschen IZVR durch das Gesetz zur Änderung von Vorschriften im Bereich des Internationalen
Privat- und Zivilverfahrensrechts’ [2017] IPRax 437; Estonia, see Maarja Torga, The Conflict of Conflict Rules – the

27
 THE EUROPEAN SERVICE REGULATION

the Service Regulation applies to other EU Regulations (so called 3rd generation) which
feature service of process minimum standards.2

1. Cross-Border Service

1.02 The estimate of the volume of cross-border service up to 2030 reaches over 4 million
legal proceedings per annum.3 Pursuant to Article 1 (1) (a), the Regulation ‘applies to the
cross-border service of judicial and extrajudicial documents in civil or commercial matters’.
The wording differs from the previous version under Regulation 1393/2007, which ruled that
the Regulation applies ‘where a judicial or extrajudicial document has to be transmitted from
one Member State to another for service there’. The reference to ‘cross-border service’ was also
missing in the Proposal of the Commission. It was added at a later stage, at the request of the
European Parliament.4 In essence, though, the meaning remains the same.5 The efforts of the
Commission to amend the wording, by establishing an obligation for service abroad whenever
the recipient is domiciled in a different Member State, were blocked.6 In addition, the proposed

Relationship between European Regulations on Private International Law and Estonian Legal Assistance Treaties Concluded
with Third States (University of Tartu Press 2019) 58, referring to Article 3161(1) of the Estonian Code of Civil
Procedure, establishing an application ex officio.
2 European Payment Order Regulation 1896/2006: Article 27 in conjunction with Articles 13–15; see CJEU Judgment
of the Court (Fifth Chamber) of 6 September 2018, Catlin Europe SE v O. K. Trans Praha spol. s r. o., Case C-21/17,
ECLI:EU:C:2018:675, para. 40: ‘Questions not regulated by Regulation No 1896/2006 concerning service of
a European order for payment together with the application for the order must therefore be decided, if necessary,
in accordance with Regulation No 1393/2007’. See also Marcel Drehsen, ‘Zustellung gerichtlicher Schriftstücke im
Rahmen der EuMahnVO’ [2019] IPRax 378; Carla Crifo, ‘Europeanisation, Harmonisation and Unspoken Premises:
The Case of Service Rules in the Regulation on a European Small Claims Procedure (Reg. No. 861/2007)’ [2011] 30(3)]
Civil Justice Quarterly 283.
3 Impact Assessment, SWD (2018) 287 final, 24.
4 WK 2876/2020 REV 1, 16.3.2020, 4.
5 Peter Schlosser/Burkhard Hess, EuZPR, Art. 1 EuZVO nr. 1 (C.H. Beck 2021); see also Recital 5 of the Regulation,
added upon the initiative of the European Parliament, which was approved in the Consolidated Text, see 9235/20,
30.6.2020, 64.
6 See the proposed text and the rationale of the failed amendment in COM (2018) 379 final, 17 f. and 11 f. respectively. In
fact, some Member States considered the proposed amendment as a step backwards, see Council of the European Union,
ST 6067 2019 INIT 6067/2019. 5.3.2019, Comments from Member States – Slovenia, 109: ‘SI (Slovenia) understands
that Article 1 of Proposal for a Regulation on the service of documents tries to eliminate the current bad practice in
which defendants in another MS are served in the territory of the MS of origin through alternative or fictitious methods
of service of documents, as permitted by the procedural law of the MS of origin, irrespective of the information on the
foreign address of the defendant, which is at the disposal of the court or judicial authority seised with the proceedings.
However, with the proposed wording, Regulation would prevent service of documents in the MS of origin (and this
without any need) which are not factious (ficticious) [sic] or alternative nor in terms of content or purpose’; Slovak
Republic, ibid, 112 f: ‘The scope should be defined by the need to transmit or serve cross border, i.e., the regulation
applies whenever a document shall be served to a person in another MS’; Germany, 23: ‘b. In addition, service on persons
whose domicile is in another EU Member State but who are staying in the State of the court for a short period will in
future be treated as service abroad, while the otherwise admissible option of domestic service, for example under Section
177 of the German Code of Civil Procedure [Zivilprozessordnung – ZPO], is prevented; c. For persons whose domicile
is in a third country but who are residing in the EU for a certain period of time, service (e.g., by post) would no longer
be possible under the Regulation’. In addition, the selection of domicile instead of residence has caused reaction from
those Member States, whose legal system has common law roots, see Council of the European Union, ST 6067 2019
INIT 6067/2019. 5.3.2019, Comments from Member States – Cyprus, 49: ‘Using domicile for the application of the
Regulation restricts its scope, as some persons might have their domicile in one member states and reside in another one’.

28
 ARTICLE 1 – SCOPE

amendment would exclude the application of the Regulation in situations where the defendant
(sued company) has its seat in a third country, and the claim is served at the home address of
the managing director in a Member State.7

The rule applies as long as the Transmitting State and the Receiving State form part of 1.03
the EU and apply the Regulation.8 It does not include overseas territories of the Member
States.9 Service within the jurisdiction, and from or to a third State are not covered by this
Regulation.10 However, the Regulation applies, if it is proven that domestic service was opted
for erroneously.11

The Regulation contains a mixture of provisions related to transmission and service. It stipulates 1.04
the former in detail, and the latter rudimentarily. The particulars of cross-border transmission
fall under the scope of the Regulation, whereas the methods of actual service, and the persons
considered as valid recipients of service12 are covered by the lex fori of the state of destination.13

The nationality of the sender or the recipient14 is irrelevant for the application of the Regulation. 1.05
The crucial element is the act of transmission from one EU State to the recipient living in
another EU State.15 The question whether the place of receipt coincides with the domicile or

See also the comment of Ireland, ibid, 51: ‘References to “domicile” throughout the Regulation should be to “residence”,
and Malta, ibid, 87. Continental legal orders followed suit, see Luxembourg, ibid, p. 83; Austria, ibid, 96; Poland, ibid,
98. The Presidency Text followed the above comments, and deleted the reference to service abroad on the grounds of
domicile in another Member State, see Council of the European Union, 7643/19, 20.3.2019, 2.
7 See OGH (AT) 01.03.2012 – 1Ob218/11g, unalex Case law, Case AT-789 = JBl 2012, 738, applying the Regulation.
8 Torga (n 1) 67.
9 EuGH BeckEuRS 2006, 432783, nr. 46; BeckEuRS 1999, 234732, nr. 42; Rudolf Streinz, EUV/AEUV: Vertrag über die
Europäische Union, Vertrag über die Arbeitsweise der Europäischen Union, Charta der Grundrechte der Europäischen Union
(2nd edition, C.H. Beck 2012) Art. 355 nr. 5 f; Ricarda Fahrbach/Ulrich Schiener, ‘Besondere Rechtsfragen der inter-
nationalen Zustellung’ [2017] IWRZ 154, 155. Contrary, Thomas Rauscher, in: Wolfgang Krüger/Thomas Rauscher
(eds), Münchener Kommentar zur Zivilprozessordnung: ZPO, Band 3: §§ 946–1120, EGZPO, GVG, EGGVG, UKlaG,
Internationales und Europäisches Zivilprozessrecht (C.H. Beck 2017), Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 10,
notes 27 and 49.
10 Bettina Heiderhoff, in: Thomas Rauscher (ed.), EuZPR/EuIPR, Band II (Otto Schmidt 2015), Art. 1 nr. 17. Depending
on the facts, multilateral or bilateral international conventions or national provisions on service are to be applied,
Reinhold Geimer/Rolf Schütze, EuZVR (C.H. Beck 2020) Art. 1 A.3 nr. 32.
11 CJEU, 7.7.2016, Emmanuel Lebek/Janusz Domino, C-70/15, ECLI:EU:C:2016:524, paras 50 et seq.; Jan Wißling,
‘Zustellungserfordernis nach EuZVO und Anerkennungshindernis nach EuGVVO – zwei Seiten einer Medaille
Anmerkung zu EuGH Urteil vom 7.7.2016 – C-70/15 (Lebek/Domino)’ [2017] GPR 27.
12 Fernando Gascón Inchausti, ‘Service of Proceedings on the Defendant as a Safeguard of Fairness in Civil Proceedings:
In Search of Minimum Standards from EU Legislation and European Case-Law’ [2017] Journal of Private International
Law 513.
13 Peter Schlosser/Burkhard Hess, EuZPR (C.H. Beck 2015) Art. 1 EuZVO nr. 7; Rauscher (n 9) Art. 1 Anh. §§
1067–1070 (EG-ZustellVO) nr. 9; María Asunción Cebrián Salvat, La Notificación internacional en materia civil y mer-
cantil en la Unión Europea (Comares 2019) 56.
14 LG Hamburg12.03.2013, unalex DE-3196.
15 See Recital 5. Compare Fernando Gascón Inchausti, ‘Service of Proceedings on the Defendant as a Safeguard of Fairness
in Civil Proceedings: In Search of Minimum Standards from EU Legislation and European Case-Law’ [2017] Journal of
Private International Law 484.

29
 THE EUROPEAN SERVICE REGULATION

residence of the addressee is not answered by the Regulation.16 In fact, the Regulation does not
specify the nature of the recipient’s whereabouts. The crucial factor is to serve proceedings at
his known address abroad.17 It is suggested that a European concept of ‘residence’ is imperative
for avoiding frictions caused by diverse national interpretations.18

1.06 It is imperative that courts examine the modalities of service, in the sense that the method
chosen ‘fulfils the need to ensure that the rights of the defence of the addressees are adequately
protected, through, inter alia, the guarantee of actual and effective receipt of those docu-
ments’.19 Hence, service to the temporary residence of the addressee is still governed by the
Regulation, as long as it is sent abroad by one of the means provided for the purposes of delivery
to its recipient.20 If residence and workplace are not in the same country, the claimant has the
right to opt for one of the States involved.21 In the event that the recipient has more than one
domicile, the sender should opt for the place where the addressee would presumably receive
knowledge of the document served.22

2. When to Serve Abroad

1.07 Lex fori rule. The Regulation’s application depends on the answer to the question whether
service has to take place abroad or not. As in the case of the Hague Service Convention
(Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters), the wording of the provision does not serve as
guidance.23 Prima facie, the answer will come from the law of the forum.24 If the latter allows

16 Hence, the Regulation does not opt for a specific place of service, e.g., domicile, which would anyhow be insufficient,
given its application mainly in family and succession matters, where the criterion of habitual residence prevails, see Paris
Arvanitakis, in: Arvanitakis Paris/Vassilakakis Evangelos, Commentary on the Service Regulation [Κατ’ άρθρον ερμηνεία
του Κανονισμού 1393/2007], Art. 1 nr. 2 note 8 (Sakkoulas Publications 2018); Cebrián Salvat (n 13) 56.
17 Argumentum e contrario from Article 1 § 2; see OLG Düsseldorf, Urteil vom 16. März 2017 – I-15 U 67/16,
ECLI:DE:OLGD:2017:0316.I15U67.16.00 = (2018) IPRax 518-525, nr. 63 et seq.; Rolf Schütze, ‘Zur cautio iudica-
tum solvi bei unbestimmtem Verwaltungssitz juristischer Personen (OLG Düsseldorf, S. 518 und BGH, S. 525)’ [2018]
IPRax 493.
18 Cebrián Salvat (n 13), 58.
19 Judgment of the Court (First Chamber) of 19 December 2012, Krystyna Alder, Ewald Alder v Sabina Orłowska, Czesław
Orłowski, C-325/11, ECLI:EU:C:2012:824, para. 36, commented by Dominik Düsterhaus, ‘Unionsrechtswidrige
Fiktion der Zustellung an ausländische Partei durch Niederlegung in der Gerichtsakte’ [2013] NJW 443; Christian
Heinze, ‘Keine Zustellung durch Aufgabe zur Post im Anwendungsbereich der Europäischen Zustellungsverordnung’
[2013] IPRax 132; Michael Stürner, ‘Fiktive Inlandszustellungen und europäisches Recht’ [2013] ZZP 137; Apostolos
Anthimos, ‘Fictitious Service in the EU’ [2017] CYIL 3. Compare Jörg Kondring, ‘Von Scania zu Alder – Ist die fiktive
Inlandszustellung in Europa am Ende?’ [2013] EWS 128, 132. Contrary, Ivo Bach, ‘Zivilverfahrensrecht: Beklagter mit
unbekanntem Wohnsitz – Internationale Zuständigkeit, fiktive Zustellung und Vollstreckung eines Versäumnisurteils’
[2012] EuZW 381 (385).
20 Justice of the Peace Kavala 20/2003, (2003) Armenopoulos 240, note Arvanitakis.
21 Cebrián Salvat (n 13) 57.
22 ibid 60.
23 Heiderhoff (n 10) Art. 1 nr. 13; Ena-Marlis Bajons, ‘Internationale Zustellung und Recht auf Verteidigung’, in:
Reinhold Geimer (ed.), Festschrift für Rolf A. Schütze zum 65. Geburtstag, Wege zur Globalisierung des Rechts (C.H.
Beck 1999) 52; Joaquim-J Forner Delaygua, ‘La frontera: dos ámbitos de la dinámica intra y extracomunitaria’, Cursos de
Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz [2003] 307.
24 Schlosser/Hess, EuZPR (n 13) Art. 1 EuZVO nr. 4; Heiderhoff (n 10) Art. 1 nr. 13; Reinhold Geimer, IZPR (Dr. Otto
Schmidt 2020) nr. 2108.

30
 ARTICLE 1 – SCOPE

documents to be served within the jurisdiction in the case at hand, cross-border service may
not be imposed by reference to the Regulation.25 However, core principles of fair hearing and
non-discrimination are to be respected.26 In this regard, it is not yet clear whether private
autonomy may prevail over procedural rules of service.27 The quest for the unification of service
of process rules within the EU has been eulogised in literature;28 it remains however mission
impossible.

Restriction of lex fori: Exclusion of remise au parquet. The general dependence of the 1.08
Regulation’s application by national law may lead to its direct or indirect circumvention. The
predisposition of litigants to avoid service abroad is connected with the immanent fear of apply-
ing a system which for many practitioners is terra incognita, thus susceptible to mistakes.29 The
example to be avoided is fictitious service.30 This would lead to an erosion of the core tenets of
the Regulation.31 Being aware of this risk, the CJEU ruled that, ‘to leave the national legislature
with the task of determining in which cases such a requirement is present would prevent any
uniform application of Regulation No 1393/2007, since it is possible for the Member States to
provide for different solutions in this respect’.32 Therefore, the CJEU continues, ‘it is by refer-
ence to the scheme and objectives of that regulation that the compatibility of such legislation
with European Union law must be examined’.33

The ruling of the CJEU initially gave the impression that service abroad is an obligation for the 1.09
claimant every time the recipient is living (residing) or having his/her seat abroad.34 This was
initially also the reading of the Commission, as evidenced in its (failed) proposal for the amend-

25 OGH 3 Ob 91/09t, 23.06.2009, ECLI:AT:OGH0002:2009:RS0124823A = EvBl 2009, p. 1012. For Luis Francisco
Carrillo Pozo, ‘La reforma del régimen de las notificaciones internacionales (Reglamento 1393/2007)’ [2009] Noticias de
la Unión Europea, note 49, the objective of the provision is to serve where the recipient actually lives.
26 Malte Ising/Götz Schulze, ‘Zustellung’, in: Stefan Leible/Jörg Philipp Terhechte, Europäisches Rechtsschutz- und
Verfahrensrecht – Zugleich Band 3 der Enzyklopädie Europarecht (NOMOS 2021) 977.
27 Some EU Member States permit agreements of the parties with regard to the place of service, which may allow domes-
tic service against a defendant living abroad, see in detail Alessandro Simoni/Giacomo Pailli, Study on the Service of
Documents: Comparative Legal Analysis of the Relevant Laws and Practices of the Member States (2016) 53 et seq.
28 Forner Delaygua (n 23) 311.
29 Christian Strasser, ‘Inlandszustellung an Auslandsgesellschaften’ [2008] ZIP 2111, 2112; Bettina Heiderhoff, ‘Keine
Inlandszustellung an Adressaten mit ausländischem Wohnsitz mehr?’ [2006] EuZW 235; Fahrbach/Schiener (n 9) 155.
30 In detail, Peter Schlosser, Jurisdiction and International Judicial and Administrative Co-operation, Collected Courses of the
Hague Academy of International Law, Volume 284 [2000] 107 f; Astrid Stadler, in: Hans Joachim Musielak/Wolfgang
Voit/Astrid Stadler, ZPO (Franz Vahlen 2022) EuZustVO Art. 1 Rn. 4; Rainer Hausmann, ‘Auslegungsprobleme der
Europäischen Zustellungsverordnung’ [2007] EuLF II-5 f.
31 Heiderhoff (n 10) Art. 1 nr. 16; Wendy Kennett, ‘Service of Documents in Europe’ [1998] C.J.Q. 298 f.
32 Judgment of the Court 19 December 2012, Krystyna Alder, Ewald Alder v Sabina Orłowska, Czesław Orłowski, C-325/11,
ECLI:EU:C:2012:824, para. 27. For the interesting background story of the preliminary request, see the procedural
decision of the Polish Supreme Court of 28/10/2010, in: ‘Judgments of the Polish Constitutional Tribunal in EU
Matters’ [2010] Yearbook of Polish European Studies 313.
33 Alder (n 32) para. 28. See also Cebrián Salvat (n 13) 37, underlining the different approach of the CJEU in the field of
the Evidence Regulation.
34 Alder (n 32) para. 25. See also Cebrián Salvat (n 13) 55. The optimistic perception of the Court that the Regulation is
both handy and effective has been challenged by legal scholars, see Kondring (n 19) 134. See also critical remarks by
Torga (n 1) 54, concerning the ambiguity around the term residence, selected by the CJEU.

31
THE EUROPEAN SERVICE REGULATION

ment of Article 1.35 The breadth of the judgment is however smaller: Its objective was to avoid
the co-habitation of fictitious means of service36 within the realm of the Regulation,37 when the
addressee’s whereabouts are known.38 The ruling of the CJEU marks the end of this possibili-
ty:39 All national provisions allowing fictitious methods40 are ostracised from the Regulation’s41
domain,42 regardless of whether they refer to documents introducing proceedings,43 other
documents during the trial, court judgments,44 or enforcement measures.45 This result is in line

35 COM (2018) 379 final, 11, following the findings of the Impact Assessment, SWD (2018) 287 final, 17 f. The modifi-
cation of Art. 1 was not accepted by the Council, see above, note 6.
36 Hence, personal service in the forum is possible (see § 177 German ZPO, Article 124(1) Greek CPC), and the need to
serve abroad should be discarded. Similarly, Sylvia Verena Lukas, Die Person mit unbekanntem Aufenthalt im zivilrechtli-
chen Erkenntnisverfahren – Verfahrensrechtliche Fragestellungen im internationalen Kontext (NOMOS 2018) 140.
37 Burkhard Hess, EuZPR (de Gruyter 2020) § 8, nr. 28; Bartosz Sujecki, ‘Neufassung der Europäischen
Zustellungsverordnung’ [2021] EuZW 287.
38 Peter Gottwald, in: Heinrich Nagel/Peter Gottwald, Internationales Zivilprozessrecht (Otto Schmidt 2020) 8.58;
Heiderhoff (n 10) Art. 1 nr. 16; Arvanitakis (n 16) Art. 1 nr. 7.
39 Schlosser, in: Schlosser/Hess (n 5) Art. 1 EuZVO nr. 4; Stadler (n 30) Art. 1 Rn. 4; Kondring (n 19) 135.
40 Germany: § 184 ZPO, see BGH, (2013) IPRax, 160; OLG Düsseldorf, (2010) IPRax 169; Christian Heinze, ‘Fiktive
Inlandszustellungen und der Vorrang des europäischen Zivilverfahrensrechts (OLG Düsseldorf, S. 169 und OGH, S.
171)’ [2010] IPRax 155–160. A controversy unfolded in Germany prior to the ruling in the Alder case, see Geimer/
Schütze (n 10) Art. 1 A.3 nr. 35 note 50 & nrs. 53–54. Against the application of the provision: Hartmut Linke, ‘Die
Probleme der internationalen Zustellung’, in: Peter Gottwald (ed.), Grundfragen der Gerichtsverfassung – Internationale
Zustellung, Veröffentlichungen der Wissenschaftlichen Vereinigung für Internationales Verfahrensrecht e.V, Bd. 10
(Gieseking 1999) 127; Bettina Heiderhoff, ‘Keine Inlandszustellung an Adressaten mit ausländischem Wohnsitz
mehr?’ [2006] EuZW 235; Thomas Heidrich, ‘Amts- und Parteizustellungen im internationalen Rahmen: Status quo
und Reformbedarf’ [2005] EuZW 743. In favour: OLG Koblenz, 27.05.2010, (2011) VersR 238. Meanwhile the issue
is settled by the amendment of the provision’s wording, see Ising/Schulze (n 26) 978 note 100; Lukas (n 36) 138.
Austria: § 98 ZPO, see OGH (AT) 27.11.2013 – 2Ob156/13z, unalex Case law, Case AT-954 = (2014) JBl 263;
OGH (AT) 17.06.2014 – 10Ob34/14v, unalex Case law, Case AT-1002 = ECLI:AT:OGH0002:2014:0100OB00034.
14V.0617.000 = (2015) ecolex 295. France: Art. 683 f. NCPC; Greece: Art. 136 CPC; Spain: see Cebrián Salvat (n 13)
61.
41 They continue to apply however with respect to cases falling outside the scope of the Regulation, BGH, 26.06.2012 – VI
ZR 241/11, (2012) NJW 2588; BGH, 17.07.2012 – VI ZR 288/11, juris.
42 See earlier, Judgment of the Court, of 13 October 2005, Scania v Rockinger, C-522/03, Rep. 2005 I-08639 =
ECLI:EU:C:2005:606, with comments by Astrid Stadler, ‘Ordnungsgemäße Zustellung im Wege der remise au parquet
und Heilung von Zustellungsfehlern nach der Europäischen Zustellungsverordnung’ [2006] IPRax 116 f; Hausmann
(n 30) II-7 f.; Heiderhoff (n 40) 235; Kondring (n 19) 129 f. Contrary, Florian Jacoby, ‘Öffentliche Zustellung statt
Auslandszustellung? Kritische Anmerkungen zum Entwurf des § 185 Nr. 2 ZPO durch das MoMiG’, in: Dietmar
Baetge/Jan von Hein/Michael von Hinden (eds), Die richtige Ordnung, Festschrift für Jan Kropholler zum 70. Geburtstag
(Mohr Siebeck 2008) 822.
43 This was applied even before the Alder ruling, see Heiderhoff (n 10) Art. 19 Rn 7; Jörg Kondring, ‘Vom stillen Ende der
Remise au Parquet in Europa’ [2007] RIW 331, referring to the French decree 2005-1678, which abolished the rémise
au parquet within the framework of service in the EU space, Belgium, the Netherlands and Luxembourg. Similarly, in
Greece, see Areios Pagos 643/2015, ISOCRATES; CFI Corfu 326/2006, (2007) Armenopoulos 1372.
44 BGH, 11.05.2011 – VIII ZR 114/10, (2011) NJW 2218; OGH, 4 Ob 81/18t, 23.10.2018, ECLI:AT:OGH0002:2018
:0040OB00081.18T.1023.000 = (2019) EvBl-LS /14, 87.
45 Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 16. Towards the same direction even before the
ruling of the CJEU in the Alder case: BGH, Urt. v. 2. 2. 2011 – VIII ZR 190/10, unalex Case law, Case DE-3375 =
(2011) DZWIR 465 et seq., with comment by Uwe Grohmann/Nancy Gruschinske, ‘Fiktive Inlandszustellung und
Europäisches Zivilverfahrensrecht’ [2011] DZWIR 441 et seq., and note by Sujecki, (2011) NJW 1885.

32
 ARTICLE 1 – SCOPE

with core values of EU law, such as the ECHR46 and the Charter of Fundamental Rights,47 and
provides a convincing answer48 to the long-lasting frontal assault of German scholarship against
fictitious service,49 which triggered amendments on a national level,50 although in a somehow
cryptic fashion.51 Meanwhile it is embedded into the Recast Regulation.52 In addition, fictitious
service impedes recognition and enforcement of the judgment in another Member State.53

The obligation to serve all documents of the proceedings abroad54 would raise grave issues 1.10
related to the efficiency of the whole process: First, it is not in line with Article 22 of this
Regulation (Article 19 of Regulation 1393/2007 and 1348/2000), which was used as one of
the fundaments of the ruling.55 Secondly, it is burdensome for the sender and convenient for
the addressee.56 However, the first stage of service, i.e., the national leg of the entire process,
remains untouched, and secures the legitimate rights of the claimant pursuant to Article 9(2).57

Exceptions. In its ruling in the Alder case, the CJEU marked two exceptions from the duty to 1.11
serve abroad. Both cases are not novel: The first is stipulated under Article 1(2), and allows the
application of national law, if the addressee is of unknown residence (see 1.16); the second was
hidden in the preamble58 – meanwhile it has been qualified to become part of the Regulation’s
text under Article 1(3), and permits service within the jurisdiction, if the recipient has

46 Burkhard Hess, ‘Die Zustellung von Schriftstücken im europäischen Justizraum’ [2001] NJW 15, 18; Walter Lindacher,
‘Europäisches Zustellungsrecht – Die VO (EG) Nr. 1348/2000: Fortschritt, Auslegungsbedarf, Problemausblendung’
[2001] ZZP 189; Daniel Sharma, Zustellungen im Europäischen Binnenmarkt (Duncker & Humblot 2003)106 f.
47 Sharma, ibid, 113 et seq.
48 Explicitly Lindacher (n 46) et seq.; Kondring (n 43) 330, note 3; Heiderhoff (n 10) Art. 19 Rn 10.
49 Schlosser (n 30) 107 et seq.; Haimo Schack, ‘Einheitliche und zwingende Regeln der internationalen Zustellung’, in:
Einheit und Vielfalt des Rechts, Festschrift für Reinhold Geimer (C.H. Beck 2002) 932 f; Bajons (n 23) 55 et seq.; Hess
(n 37) 8, nr. 28; Geimer/Schütze (n 10) A.3, Art. 1, nr. 19. See also Felix Netzer, Status quo und Konsolidierung des
Europäischen Zivilverfahrensrechts (Mohr Siebeck 2011) 101 et seq., and 131 et seq., proposing de lege ferenda a solution
on a European fundament. Similarly, Martin Heckel, ‘Die fiktive Inlandszustellung auf dem Rückzug – Rückwirkungen
des europäischen Zustellungsrechts auf das nationale Recht’ [2008] IPRax 218 f. The salvation by the CJEU was also
expected by Sylvia Rahlf/Eckart Gottschalk, ‘Das Europäische Zustellungsrecht’ [2004] EWS 305 f.
50 Burkhard Hess, Die Zustellung von Schriftstücken im europäischen Justizraum [2001] NJW 18; Hartmut Linke/Wolfgang
Hau, Internationales Zivilverfahrensrecht (Dr. Otto Schmidt 2021) 8.38; Carl Friedrich Nordmeier [2017] IPRax 437
(II/1); Agnieszka Golab, ‘Cross-Border Implications of Fictitious Service and Unreasoned Judgements in the EU’ [2019]
IPRax 31, note 5.
51 Linke/Hau (n 50) 8.38 in fine.
52 See Recital 7. Sujecki (n 37) 288, underlines that fictitious service may not substitute any of the service methods embed-
ded in the Regulation.
53 Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 16. The refusal is founded upon the public policy
defence.
54 In a hypothetical scenario of total inaction by the defendant, the claimant should serve, apart from the claim, at least
a notice for a sworn statement, the court judgment, the notice of payment, the notice of attachment, and the public
auction record.
55 Kondring (n 19) 134.
56 In detail Apostolos Anthimos, Czech Yearbook of International Law [2017] 11.
57 Arvanitakis (n 16) Art. 1 nr. 4, with respect to the Greek legal order: Articles 134 and 136 CPC are abolished as a means
of service; they remain however in force as a legitimate corridor for the transmission abroad. The danger of limitation of
action is thereby avoided.
58 Recital 8 Regulation 1393/2007.

33
 THE EUROPEAN SERVICE REGULATION

appointed an authorised representative (see 1.23). The added value of the ruling is the solemn
reiteration of the aforementioned exceptions.

1.12 It has still not been clarified whether other national options for avoiding cross-border service
remain intact after the ruling in the Alder case. The prevailing opinion suggests that the inten-
tion of the Court was to exclude fictitious methods,59 not to abolish any thinkable national
alternatives to service abroad,60 let alone streamline the range of the Regulation with that
of the EEO and the EPO Regulations.61 The emphatic persistence in the application of the
Regulation by all means would be formalistic and contrary to the major objective of efficiency
and swiftness in serving proceedings,62 as long as domestic service channels secure actual
delivery either personally63 or by a third person.64 It would also contravene Article 81(2)(b)
EU Treaty, which aims at ensuring, not defining the need for cross-border service of judicial
and extrajudicial documents.65 Hence, even after the ruling of the Court, but without ignoring
it, the provision may be interpreted in accordance with the lex fori,66 i.e. in exactly the same
fashion as under the Hague Service Convention.67

1.13 In this context, an excursion into various alternative methods of national service is inevitable.68
National provisions and their interpretation by Member States courts involve the following sit-
uations: service to the domestic address of the recipient, even if he also has residence abroad;69
service to the domestic branch/subsidiary of a foreign company;70 service to the domestic
registered seat of a company, even if it also has a business address abroad;71 service to the head

59 For a detailed presentation of fictitious, constructive, or notional methods of service in the EU, see Simoni/Pailli (n 27)
144 et seq.
60 Heiderhoff (n 10) Art. 1 nr. 15; Arvanitakis (n 16) Art. 1 nr. 7 in fine, 41.
61 This was the position of Advocate General Bot, which was not adopted by the Court, and criticised by schol-
ars, see Hans-Peter Mansel/Karsten Thorn/Rolf Wagner, ‘Europäisches Kollisionsrecht 2012: Voranschreiten des
Kodifikationsprozesses – Flickenteppich des Einheitsrechts’ [2013] IPRax 28: ‘Der Generalanwalt zeigt Unkenntnis …’;
Kondring (n 19) 132.
62 Arvanitakis (n 16) Art. 1, nr. 8, referring to Recital 36 of the ruling in the Alder case.
63 Heiderhoff (n 10) Art. 1 nr. 15.
64 Judgment of the Court of 2 March 2017, Andrew Marcus Henderson v Novo Banco SA, C-354/15, ECLI:EU:C:2017:157,
paras 86 et seq.; CoA Thessaloniki 20/2016, (2017) CPLRev 521 et seq., note Anthimos.
65 In detail Kondring (n 19) 133, by drawing a dividing line between cross-border cases and cross-border service: Not every
cross-border case presupposes cross-border service.
66 Insisting on a decision based on the lex fori, Mansel/Thorn/Wagner (n 61) 28; similarly, Heinze (n 19) 134. Cebrián
Salvat (n 13) 57, opts for a questionable hybrid model, i.e., to apply the Regulation even if service takes place within the
forum.
67 Kondring (n 19) 132.
68 Hess (n 37) § 8, nr. 31, urges for the approximation of national regimes, without excluding an EU instrument regulating
service of process abroad in its entirety. The variety of national solutions is evidenced in Simoni/Pailli (n 27) 34 et seq.
69 Thomas Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 9; TC (Sala 1.a), 162/2002, 16.9.2002, BOE
9.10.2002 (supplement), 34 et seq., and TC (Sala 1.a), 208/2002, 11.11.2002, BOE 29.11.2002 (supplement), 17 et seq.
Compare Forner Delaygua (n 23) 308, opposing the outcome of the above cases decided by the Spanish Constitutional
Court: If the claimant is aware of the recipient’s residence in a different Member State, he should first attempt service
abroad.
70 Schlosser (n 30) 94. In detail Sharma (n 46) 158 f. See also Fahrbach/Schiener (n 9) 156; Cebrián Salvat (n 13) 61 f,
citing Carrillo-Pozo, note 174.
71 CFI Frankfurt 06.04.2017 – 2-03 O 415/15, unreported.

34
 ARTICLE 1 – SCOPE

office, instead of the registered seat abroad;72 service to the addressee on the occasion of his
temporary stay73/presence74 in the jurisdiction;75 service to a partner76 or a representative body77
of a foreign company living/registered in the forum;78 domestic service to the president/chief
executive of a company registered outside the EU;79 service to a legal representative living in the
forum, although the addressee resides abroad;80 service to the summer house of the recipient
within the forum;81 service on board a foreign ship docked in a port of the forum;82 service to
members of foreign diplomatic missions.83

National solutions potentially cause problems of uniformity,84 such as lack of understanding of 1.14
the document in its original version. It is suggested that translation into a language which the
addressee understands is imperative.85 Translation issues are examined under Articles 9 and 12.
The core principle of service, i.e., safeguarding the right of defence, stands as the guiding tenet,
devoid of formal prerequisites.86

72 Cass. civ, 10954/19.05.2014, unalex IT-760.

73 Schack (n 49) 939.
74 Schlosser (n 30) 93. See also Cour de Cassation (FR) 22.09.2016 - 15-18715, unalex Case law, Case FR-2490: A court
judgment in which an airline company with its seat in another Member State is ordered to effect performance cannot,
during stopover of the flight in the State of enforcement, be served on the flight captain as a representative according to
the rules for domestic service of the enforcement State. The French Supreme Court considered that the provisions in
the Service Regulation concerning recipients with their seat in another Member State cannot be circumvented in this
manner.
75 For the various national provisions, see Simoni/Pailli (n 27) 73 et seq. From the practice of German courts, see BGH
5.5.2008, (2008) NJW-RR 1082. In those cases, a translation of the document is necessary, see Hess (n 37) § 8, nr. 28;
Heiderhoff (n 40) 237. Contrary, Strasser, ‘Inlandszustellung an Auslandsgesellschaften’ [2008] ZIP 2113.
76 Cour de Cassation (FR) 20.11.2012 – 11-17653, unalex Case law, Case FR-2414. See also Kondring (n 19) 131, doubt-
ing the result in light of the ruling of the CJEU in the Alder case, ibid, 133.
77 For the various national patterns, see Simoni/Pailli (n 27) 42 et seq.
78 Strasser (n 29) 2111 et seq. See again Hess (n 37) § 8, nr. 28, focusing on the need to translate the document to be served.
79 OGH 1.3.2012, unalexAT-789 = (2012) ecolex 474; Schlosser (n 30) 93, note 232.
80 Schlosser, ibid; Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 16, most probably referring to § 170
ZPO (Vertreter). See also BGH 06.11.2013, (2014) WRP 590 f, referring to a judgment of the CoA Stuttgart, which
did not accept service against a resident of the USA to the Admin-C residing in Germany. The appellate court dismissed
the claim because the claimant failed to invoke (and to prove) that the recipient was appointed as an attorney by act of
the party. The issue was not examined by the German Supreme Court, due to the inadmissibility of the remedy filed.
The Mainstrat Study features a special unit on the matter, see ‘Study on the application of Council Regulation (EC) No
1393/2007 on the service of judicial and extra judicial documents in civil or commercial matters’ [2014] 150 et seq.
81 CoA Thessaloniki 57/2017, (2017) Armenopoulos 2130, reversing the first instance decision [Chalkidiki CFI 80/2015,
(2017) Armenopoulos 2127]. In detail Apostolos Anthimos, ‘When is Service Abroad Compulsory?’ [2017] Armenopoulos
2188 et seq. Compare Cebrián Salvat (n 13) 57 f: service to a non-resident, who rents a house every summer in Spain;
service may take place in Spain, however, the document should be translated in accordance with the Regulation.
82 OLG Köln v. 13.8.2009 – 17 W 181/09, (2010) NJW-RR 646; Hamburg CFI 12.3.2013,
ECLI:DE:LGHH:2013:0312.325O224.12.0A = (2013) RdTW 288, note Grau. Contrary Hamburg CFI 23.8.1994,
(1995) NJW-RR 183, under the Hague Service convention regime.
83 Reinhold Geimer, Internationales Zivilprozessrecht (8th edn, Otto Schmidt 2020), nr. 2085c, referring to § 183(3) ZPO.
84 Geimer /Schütze (n 10), Art. 1 A.3 nrs 56–58.
85 Heiderhoff (n 10) Art. 1 nr. 15; Heiderhoff (n 40) 237; Ising/Schulze (n 26) 979 nr. 31.
86 Compare Art. 45(1)(b) Brussels I bis Regulation.

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 THE EUROPEAN SERVICE REGULATION

B. WHEN THE REGULATION DOES NOT APPLY

1.15 Following the judgment of the CJEU in the Alder case, there are two exceptions where the
Regulation does not apply: Service to persons of unknown address, and service to an authorised
representative in the forum State.

1. Service to Persons of Unknown Address

1.16 Article 1(2) states in an adamant fashion that ‘with the exception of Article 7, this Regulation
does not apply where the address of the person to be served with a document is not known’.
Compared to the previous wording, the sole difference lies in the reference to Article 7.87 The
mechanics of the Regulation are not compatible with this situation,88 and its prevalence over
national law must not hinder the need to proceed to service by publication.89

1.17 The notion of an unknown address needs to be examined on an EU level:90 An autonomous

European interpretation should be developed.91 Unknown address is not identical with missing,
incorrect, or obsolete elements of the latter.92 Interested parties should therefore engage indi-
vidually in a thorough search in order to avoid the consequences of a failed service of process.93
In this context, the use of the Evidence Regulation channels has been met with scepticism by
the Commission.94 Recently the CJEU gave the final blow to the thought.95 A postal address
of a third person closely connected or associated with the recipient does not suffice, whereas

87 Schlosser/Hess (n 5) nr. 2. Some differences may be reported in other language versions. Example: Spain – the term
‘domicilio’, which was used in both the 2000 and the 2007 Regulations, has been streamlined with the English version.
The new term used is now ‘dirección’. The discrepancy was actually indicated in the Spanish legal scholarship pretty
early, see Forner Delaygua (n 23) 287 note 5. See recently Nuria Marchal Escalona, ‘El nuevo marco europeo sobre noti-
ficación y obtención de pruebas en el extranjero: hacia un espacio judicial europeo digitalizado’ [2022] Revista Española
de Derecho Internacional 155, 170.
88 Heiderhoff (n 10) Art. 1 nr. 20. Nevertheless, the Commission responded with the idea of striking out this provision,
as evidenced in a discussion paper for the hearing on the Commission report on the service of documents on 4 February
2005, 7: H. Another possible issue is the necessity of Article 1(2): … ‘A deletion of this provision might be considered
in order to make the Regulation applicable also in cases where the exact address of the addressee is unknown’.
89 Judgment of the Court, 15 March 2012, C-292/10, G v Cornelius de Visser, ECLI:EU:C:2012:142, para 56 Judgment of
the Court of 17 November 2011; C-327/10, Hypoteční banka a.s. v Udo Mike Lindner, ECLI:EU:C:2011:745; Lukas (n
36) 142.
90 For the variety of approaches on a national level, see Jerca Kramberger Škerl, ‘The Service of Court Documents on
Persons with Unknown Residence – a Comparative Analysis with an Emphasis on Slovenia’, in: Dahlberg Mattias (ed.),
Party Autonomy: Civil Procedural Views on Party Autonomy, Franz Klein, EU Law and More (Iustus Förlag 2011) 71 et
seq., covering France, Italy, Germany, Croatia and Slovenia. See also Impact Assessment, SWD (2018) 287 final, 11 f.
91 Haimo Schack (n 49) 941; Netzer (n 49) 131; Lukas (n 36)142.
92 Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nrs. 13 & 15; Heiderhoff (n 10) Art. 1 nr. 19. Under those
circumstances, Art. 6(2) [now Art. 10(2)] should be activated, Stadler (n 30) Art. 1 nr. 2.
93 Fahrbach/Schiener (n 9) 156.
94 Report from the Commission to the Council, the European Parliament and the European Economic and Social
Committee on the application of Council Regulation (EC) 1393/2007 on the service in the Member States of Judicial
and Extrajudicial documents in civil or commercial matters COM (2013) 858 final, 7.
95 Judgment of the Court (Sixth Chamber) of 9 September 2021, Toplofikatsia Sofia and Others, Joined Cases C-208/20 and
C-256/20, ECLI:EU:C:2021:719.

36
 ARTICLE 1 – SCOPE

a P.O. Box of the latter may be considered as a qualified address for service,96 as long as such
method is provided for by domestic rules of service, the recipient is deemed to reside in the
jurisdiction,97 and the box is still in use by the addressee.98

The CJEU has provided relevant guidelines for national courts.99 Service is not possible if the 1.18
whereabouts of the recipient are completely unknown.100 A situation of unknown address may
occur either before or after filing the action. In the first case, information gathering may be
facilitated by national antennas or a system of cooperation among Member States.101 In the
second case, efforts by the Receiving Agencies may contribute to the localisation of the address-
ee.102 The tendency is to expect more from the official channels.103 The Recast Regulation has
included a new provision, establishing a special mechanism to this cause (Article 7).104 If all
efforts to trace the recipient fail, and no other alternative is available,105 the way is open to the
court of the requesting State106 to apply national methods or variations of service to persons or
legal entities of unknown residence107 throughout the course of proceedings.108

Still, national provisions in some Member States developed schemes of a technical or ficti- 1.19
tious unknown residence, allowing service by publication even when the whereabouts of the

96 Lukas (n 36) 131, on the grounds of Annex I of the Regulation, which refers to a P.O. Box.
97 Lukas, ibid. Even in this case, some means of service may not be used, e.g., postal service, which sets an acknowledgment
of receipt as a ground condition, Lukas, 131 f.
98 Lukas, ibid, 132 & 143 (focusing on § 184(2)(a) German ZPO, and pertinent case law).
99 Judgment of the Court, 15 March 2012, C-292/10, G v Cornelius de Visser, ECLI:EU:C:2012:142, para 56; Judgment
of the Court of 17 November 2011, C-327/10, Hypoteční banka a.s. v Udo Mike Lindner, ECLI:EU:C:2011:745, para
53. See also Fernando Gascón Inchausti, ‘Have the EU Regulations on Judicial Cooperation Fostered Harmonization
of National Procedures?’, in: Fernando Gascón Inchausti/Burkhard Hess (eds), The Future of the European Law of Civil
Procedure: Coordination or Harmonization? (Intersentia 2020) 104 et seq.
100 Heiderhoff (n 10), Art. 1 nr. 18. In this case, domestic service is the only viable solution, Rauscher (n 9) Art. 1 Anh. §§
1067–1070 (EG-ZustellVO) nr. 12.
101 See also Cebrián Salvat (n 13) 59.
102 Report on the application of Council Regulation (EC) 1393/2007 on the service in the Member States of Judicial and
Extrajudicial documents in civil or commercial matters COM (2013) 858 final, 8; Schlosser (n 30) 112; Linke (n 40) 103;
Schlosser/Hess (n 13) Art. 1 EuZVO nr. 8; Kennett (n 31) 298.
103 Schlosser (n 30) 112 et seq.; Stadler (n 30) Art. 1 nr. 2a. Moving in this direction, Sharma (n 46) 85. Along the same
lines, Geimer/Schütze (n 10) Art. 1 A.3 nr. 44. See also Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO)
nr. 14, examining all possibilities of engagement (can/may/must/should). The tendency of more proactive Agencies was
confirmed by the Commission, see Impact Assessment, SWD (2018) 287 final, 62.
104 See in detail Stefano Dominelli, Current and Future Perspectives on Cross-Border Service of Documents, Scritti di diritto
privato europeo e internazionale (Aracne 2018) 72 et seq. Reflections on the same issue have been included in an earlier
Communication by the Commission, see COM (1999) 219, 10: ‘However, this provision does not mean that the agency
of the Member State receiving an application for an act to be served on a person whose address is incomplete or incorrect
need not try to complete or correct it with the means at its disposal’.
105 Indirect service, e.g. service to an authorised representative; Rauscher (n 9), Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO)
nr. 17.
106 Under those circumstances, the requested State may not proceed to service pursuant to its own legislation, Rauscher
(n 9), Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 13. Contrary, Zöller/Geimer, Zivilprozessordnung: ZPO/
EG-VO-Zustellung (Dr. Otto Schmidt 2022) Art.7 Rn. 2.
107 Geimer/Schütze (n 10) Art. 1 A.3 nr. 41; Heiderhoff (n 10), Art. 1 nr. 21; Heiderhoff (n 40) 237.
108 If unknown residence has been certified by the foreign Agency, all subsequent documents may be served in the same
fashion, see Polymeles Protodikeio Rhodes (GR) 15.03.2013 – 27/2013, unalex Case law, Case GR-192.

37
 THE EUROPEAN SERVICE REGULATION

addressee are known to the sender.109 The discrepancy may not be tolerated, because it results
in an evident imbalance between Member States litigants. That is why, as already stated (1.17),
an answer needs to be given on what exactly unknown residence/address means. The matter must
be addressed to the CJEU.

1.20 The right to resort to domestic methods is compatible with EU law, because it safeguards the
claimant’s right to efficient judicial protection.110 At the same time though, those methods are
predominantly fictitious, and the likelihood of actual receipt is minimal.111 Therefore, national
courts have to be alert to possible tactics by claimants with the aim of evading service abroad.112
To this end, courts are called to examine additional provisions.113 The plaintiff has to demon-
strate that despite all reasonable efforts,114 it was impossible to trace the recipient’s wherea-
bouts.115 EU Member States have developed various models of examination, some operating
before,116 while others operate during the hearing.117 On the other hand, the addressee bears
the onus of proving that the claimant was aware of his abode, and that the method of service
selected was made erroneously, or in bad faith.118 To this purpose, the defence may be brought

109 See § 185(2–3) ZPO: ‘Service may be effected by public notice (service by public notice) if: 2. it is not possible to serve
documents upon legal persons obliged to register a domestic business address with the Commercial Register, either at
the address entered therein or at the address entered in the Commercial Register of a person authorised to receive service
of documents, or at any other domestic address obtained without any investigations having been carried out; 3. it is
not possible to serve documents abroad, or if such service is unlikely to offer any prospect of success’. For the latter it is
unanimously supported that it is not applicable to EU citizens, see Linke/Hau (n 50) 8.40; Heiderhoff (n 40) 237; OLG
München, 31.03.2008 – 17 U 4657/07, ECLI:DE:OLGMUEN:2008:0331.17U4657.07.0A, nrs. 15–21.
110 Judgment of the Court, 15 March 2012, C-292/10, G v Cornelius de Visser, ECLI:EU:C:2012:142, paras 52–59, and
Judgment of the Court of 17 November 2011, C-327/10, Hypoteční banka a.s. v Udo Mike Lindner, para 53; Geimer/
Schütze (n 10) Art. 1 A.3 nrs. 42–44; Linke/Hau (n 50) 8.41; Cebrián Salvat (n 13) 161 f.
111 Better prospects for the defendant are given when the court orders notification by email, see Re SJ (A Child) (Habitual
Residence) [2014] EWHC 58 (Fam) nr. 65.
112 BGH 1. Zivilsenat, Urteil vom 31.10.2018 – I ZR 20/18, note by Friedrich Cranshaw, ‘Zwingend erfolgloser
Zustellungsversuch an eingetragene Geschäftsadresse juristischer Person vor öffentlicher Zustellung’, [1/2019]
jurisPR-HaGesR Anm. 2.
113 For instance, Art. 28(2) Brussels Ia; Art. 18(1) Brussels IIbis Regulation; Art. 11(1) Maintenance Regulation, Art. 16
Succession Regulation; Article 16 Family and Partnership Property Regulations.
114 If the claimant is aware that the recipient was living in a given address, he must try to serve the document there at least
once, before resorting to fictitious service, Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 13; Lukas
(n 36) 133 f. The German Supreme Court went further, stating that a second attempt is imperative before resorting to
service by publication, BGH, 31.10.2018 – I ZR 20/18, (2019) NJW-RR 294.
115 Judgment of the Court 15 March 2012, Case C-292/10, G v Cornelius de Visser, ECLI:EU:C:2012:142, para 59; note
Bach (n 19) 385 f; Judgment of the Court of 17 November 2011, C-327/10, Hypoteční banka a.s. v Udo Mike Lindner,
paras 48–54; note Grimm, Brüssel I-VO: Grenzüberschreitender Bezug und unbekannter Wohnsitz des Beklagten
Anmerkung zu EuGH, Urteil vom 17. November 2011, Rs. C-327/10 (Lindner), [2012] GPR 87 et seq.; BGH,
(2008) NJW 1531; Hof van beroep Gent (BE) 21.03.2006 – 2005/AR/2731, unalex Case law, Case BE-170; Audiencia
Provincial Lleida (ES) 11.02.2010 – 23/2010 (unalex ES-895); Polymeles Protodikeio Rhodes (GR) 15.03.2013 –
27/2013, unalex Case law, Case GR-192.
116 See Cebrián Salvat (n 13) 59 f, referring to Article 162 of the Spanish CPC.
117 Article 135 Greek CPC.
118 Saarländisches Oberlandesgericht Saarbrücken, 10. Dezember 2008 – 1 U 126/08 – 40,
ECLI:DE:OLGSL:2008:1210.1U126.08.40.0A, nrs 22–26. The above is of course not the case, if the defendant
appears and confirms that the claimant had no knowledge of his whereabouts, see Re SJ (A Child) (Habitual Residence)
[2014] EWHC 58 (Fam).

38
 ARTICLE 1 – SCOPE

forward both in domestic119 and foreign (exequatur)120 proceedings. It is not settled whether the
claimant may invoke national rules providing for a cure of service irregularities.121

Service by national legislation rules presupposes that the recipient is impossible to trace in any 1.21
of the locations known to the claimant.122 Hence, both registered and other, so-called actual
addresses, have to be taken into consideration before resorting to service by publication.123 For
some jurisdictions, even the likelihood of failure suffices.124 It is however doubtful whether
those national variations are acceptable under the scope of the Regulation.125

If the addressee is a company registered in one Member State and its corporate domicile has 1.22
changed during lis pendens, service of subsequent documents must be attempted to both
jurisdictions before reverting to service by publication.126 In some countries it seems that noti-
fication of impending service by publication through use of informal means suffices.127 This is
acceptable if service by publication has been completed before receiving actual knowledge of
the recipient’s address in another Member State.128 However, service by publication in spite of
knowing the recipient’s whereabouts in a different Member State constitutes a violation of the
Regulation, even if the latter omitted to update its contact details in a timely fashion in the
commercial register.129

119 By means of an appeal or an application to set aside the default judgment, see BGH 1. Zivilsenat, Urteil vom 31.10.2018
– I ZR 20/18.
120 By invoking the respective grounds of refusal, i.e., Art. 45 Brussels I bis, 22 Brussels II bis. In detail, see Apostolos
Anthimos, Recognition and Enforcement of Foreign Default Judgments (Sakkoulas Publications 2002) 278 f.
121 Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 17: The Regulation does not tackle the matter; at the
same time, national law may not remedy violations of EU law. See however Heidrich (n 40) 747 note 80, suggesting that
the Regulation may not be construed in a fashion which excludes any means of curing the defect in the service of process.
122 Rauscher (n 9) Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 12; Lukas (n 36) 133. Simoni/Pailli (n 27) 129 et seq.,
refer here to unknown whereabouts of the addressee, providing a detailed presentation of national provisions.
123 Ising/Schulze (n 26) 979 nr. 30; OLG Köln, 29. November 2017 – 7 VA 16/17, ECLI:DE:OLGK:2017:1129.7VA16.
17.00, nrs 40–48.
124 Example: § 185(2) German ZPO: Service by publication allowed if service abroad is considered impossible or likely to
fail.
125 Lukas (n 36) 133.
126 A controversy began since the reform of service by publication in Germany in 2008, concerning § 185(2) ZPO: Legal
scholarship is divided on the duty of the sender to proceed to further search inside and outside the jurisdiction, if the
document could not be served to the address registered in the Commercial Registry; see Martin Häublein, in: Wolfgang
Krüger, Thomas Rauscher (ed.), Münchener Kommentar zur Zivilprozessordnung: ZPO, Band 1: §§ 1–354 ZPO (C.H.
Beck 2017) § 185 Rn. 4; Johannes Wittschier in: Hans Joachim Musielak/Wolfgang Voit/Astrid Stadler, ZPO (Franz
Vahlen 2022), § 185 Rn. 4c.
127 Frankfurt CoA 11.01.2018 – 6 U 95/17, unreported, reversing the judgment rendered by the CFI Frankfurt 06.04.2017
– 2-03 O 415/15, unreported. In line with the first instance ruling, Häublein (n 126) Rn. 9; Herbert Roth in: Friedrich
Stein/Martin Jonas, Kommentar zur Zivilprozessordnung, 23. Aufl. (2016) § 185 Rn. 8; Mathias Rohe in: Rolf A. Schütze
(ed.), Wieczorek/Schütze, Zivilprozessordnung und Nebengesetze, 4. Aufl. (De Gruyter 2013), § 185 Rn. 24a. The German
Supreme Court dismissed the final appeal (Revision) as unfounded, focusing on domestic aspects, BGH 31.10.2018
–I ZR 20/18, (2019) NJW-RR 294, para. 21.
128 CFI Frankfurt 06.04.2017 – 2-03 O 415/15, unreported.
129 Contra OLG Saarbrücken (2013) NZG 673.

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 THE EUROPEAN SERVICE REGULATION

2. Service to a Representative Ad Litem

1.23 Service out of the jurisdiction is not necessary for persons living abroad, if they have appointed
a representative ad litem in the forum.130 In fact, some countries oblige claimants to serve
proceedings to the representative ad litem.131 However, a proper appointment of the latter is
a prerequisite, and the claimant carries the burden of proof on this matter.132 Some jurisdictions
consider that the appointment in first instance is deemed to be valid up to the stage of appellate
courts,133 or even the Supreme Court, if no revocation took place in-between, and upon the
condition that subsequent service relates to the same dispute.134 Other jurisdictions allow sub-
sequent service only if the party has extended the power of attorney in the higher instances.135
It is suggested that a translated copy of the claim should be served to the addressee, in addition
to domestic service to the lawyer appointed in the forum.136 The latter would however render
the domestic service meaningless.

3. Service to an Authorised Representative

1.24 Recital 6 states that the Regulation ‘should not apply to the service of documents on a party’s
authorised representative in the forum Member State’.137 The CJEU elevated this case as the
main exception to the ground rule of the Regulation’s application, whenever the recipient resides
in another Member State.138 For the purposes of creating legal certainty around the legislative
character of this provision, the Commission proposed its inclusion within the Regulation’s text
(para 3).139 The reversed variant, i.e., service to an authorised representative living abroad, in
spite of the recipient’s abode in the forum, falls out of the scope of this exception.140 Article 1(3)

130 Schlosser (n 30) 93. For a variety of national patterns, see Simoni/Pailli (n 27) 38 et seq.
131 Example: Greece, Art. 143 para. 4 CPC.
132 See at an early stage, Peter Gottwald, ‘Sicherheit vor Effizienz? Auslandszustellung in der Europäischen Union in Zivil-
und Handelssachen’, in: Reinhold Geimer (ed.), Wege zur Globalisierung des Rechts, Festschrift für Rolf A. Schütze zum 65.
Geburtstag (C.H. Beck 1999) 232, criticising the lack of legislative intervention, and underlining the barriers raised in the
way of an impeccable service of process.
133 Heinrich Nagel/Peter Gottwald, Internationales Zivilprozessrecht (Otto Schmidt 2020), 8.59; Bartosz Sujecki, ‘Zustellung
an den Prozessbevollmächtigten der Vorinstanz in grenzüberschreitenden Fällen’ [2010] EWS 523, 526 et seq.
134 Example: Greece, Art. 143 Para 1 CPC.
135 That was previously the case in Greece: Courts decided that service of an appeal to a lawyer who appeared for the party
in first instance was improper, if no fresh representation powers were granted, see Piraeus CoA 415/2010, ISOCRATES:
Service ought to be made to London pursuant to the Service Regulation, because the appellant failed to prove that the
lawyer was properly appointed for the trial before the appellate court.
136 Simoni/Pailli (n 27) 254.
137 The text deviates slightly from Recital 8 under Regulation 1393/2007: ‘The Regulation should not apply to service
of a document on the party’s authorised representative in the Member State where the proceedings are taking place
regardless of the place of residence of that party’. See in detail Stefano Dominelli, ‘Cross-Border Service of Documents
on Legal Companies: Three Legal Issues’, in: Bettina Heiderhoff/Ilaria Queirolo (eds), New Approaches in Private
(International) Law (Editoriale Scientifica Napoli 2021) 123, 129.
138 Judgment of the Court 19 December 2012, Krystyna Alder, Ewald Alder v Sabina Orłowska, Czesław Orłowski, C-325/11,
ECLI:EU:C:2012:824, Recital 24; Rauscher (n 9) Art. 1 Anh. §§ 1067-1070 (EG-ZustellVO) nr. 19.
139 COM (2018) 379, 12. The EP proposed the deletion of para. 3, see Report A8-0001/2019, 13.
140 Rauscher (n 9), Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 19a: Recital 8 refers to service to a representative resid-
ing in the Member State where the proceedings are taking place, which is not the case in the given situation. At the same time,
service is not fictitious. Hence, the Regulation applies and the cardinal question will revolve around the powers of the

40
 ARTICLE 1 – SCOPE

is not applicable, if both the defendant and the authorised representative are living outside the
forum.141 An additional exception is to be extracted from Recital 6, where it is stated that the
Regulation applies if service on a party to another Member State is required under the law of
the forum Member State, irrespective of whether the document has been served on the party’s
representative (in the forum State).142

The term authorised representative is not clarified in the Regulation.143 Neither the predecessors 1.25
of the current Service Regulation (Regulations No 1348/2000 and 1393/2007) nor the Service
Convention drawn up by the Council of the European Union in 1997 (and never entered into
force) referred to ‘authorised representatives’ in the regulatory part of the Regulation. The
notion was also missing from the original 2005 Commission’s proposal to amend Regulation
No 1348/2000. The term only appeared in the 2006 Commission’s proposal, without any
further elucidating remarks. The inclusion came as one of the 35 proposed amendments by the
Rapporteur of the European Parliament.144

Hence, there is no clear indication of the rationale which led to the inclusion of the notion into 1.26
the preamble under the 2007 Service Regulation. This immanent vagueness causes difficulties
in practice.145 The term has no clear meaning in the EU context, which allowed the conclusion
that it should be construed in accordance with the lex fori.146 It may not be confined as equiv-

agent to receive service. The matter becomes more complicated in maritime disputes: Usually companies are registered
in third countries supporting the flag of convenience status quo, whereas the agent resides within the EU. In this case
service falls out of the Regulation’s field of application, because the registered seat of the company lies outside the EU.
Hence, concerning service to the agent, it is not Recital 8, but domestic rules of service which should come to the fore.
141 Grovit v Jan Jansen [2018] IEHC 22 (17 January 2018),http://​www​.bailii​.org/​ie/​cases/​IEHC/​2018/​H22​.htmlnr. 29.
Dominelli (n 137) suggests the application of domestic law (or a respective international convention) even in this case,
see n. 140, 131 f.
142 Recital 6 has been strongly criticised by Marchal Escalona (n 87), 169 f: The text runs contrary to the findings of the
CJEU (C-325/11), thus compromising the uniform interpretation of the Regulation.
143 This has been underlined by some Member States, see Council of the European Union, ST 6067 2019 INIT 6067/2019.
5.3.2019, Comments from Member States – Slovenia, p. 109: ‘It is not clear whether the paragraph covers legal rep-
resentatives (to whom also the document instituting the proceedings can be served)’. It was proposed to clarify certain
aspects with regard to persons who should be considered as authorised representatives for accepting service on behalf of
the addressee, see Simoni/Pailli (n 27) 254 et seq.
144 In detail, Rauscher (n 9), Art. 1 Anh. §§ 1067–1070 (EG-ZustellVO) nr. 18. Rauscher indicates that it was added to
solve a problem which appeared in the Dutch legal order, concerning the right of the appellant to serve the document to
the appellee’s lawyer in the first instance. The same author objects to the Dutch approach, as evidenced in the ruling of
the Hoge Raad (Rauscher, ibid, note 75), and excludes domestic service by the opening of a higher instance. Kondring
(n 19) 131, shares the same opinion, invoking the strict wording of the CJEU in the Alder case. This view is not in line
with the Greek position on the issue, which is reflected under Art. 143(1) CPC: The rule stipulates that the counsel is
ipso jure representative ad litem for all notifications regarding the litigation in which he appears as a counsel, and until
the final instance, i.e., when the judgment becomes final and conclusive, unless there is evidence that the recipient had
revoked the lawyer’s power of attorney.
145 See BGH (DE) 07.12.2010 – VI ZR 48/10, unalex Case law, Case DE-1973.
146 Sujecki (n 133) 526; similarly, Kondring (n 19) 132. In detail see Simoni/Pailli (n 27) 38 et seq. See also Council of the
European Union, ST 6067 2019 INIT 6067/2019. 5.3.2019, Comments from Member States – Estonia, p. 40: ‘For
service to the party’s representative in the Member State where the proceedings are taking place, national law of this
Member State should apply’.

41
Another random document with
no related content on Scribd:
Duke of Wellington’s half-length, or head and shoulders, of Innocent
the Tenth. It is probable that in more than one of the portraits of
Mariana—those in which she is depicted at full-length—much of the
painting of her raiment is due to the hand of some pupil of the
master’s. But by Velasquez wholly, as we should surmise, is Sir
Francis Cook’s bust of the little lady, and this is the earliest of her
portraits here, and is succeeded by Mr. Cuthbert Quilter’s three-
quarters length, and by Sir Clare Ford’s extraordinarily fresh and
vigorous and thorough rendering of the girl in much the same
manner. Greatest of all, perhaps, for colour, character, and—there is
no other word for it—‘modernness,’ or actuality, is the ‘Innocent the
Tenth.’ It belongs to the Duke of Wellington. Seven years ago we
paid it, at the Old Masters, our tribute of homage. It is one of several
treatments of the same dignitary, wrought by Velasquez after that
voyage to Italy in which the artist had Spinola for companion. But it is
one of the most genuine and one of the most intact; and perhaps it is
but by an error of phrase that it is described as a ‘repetition’ of the
picture at the Hermitage. In it, at all events, the finest qualities of
masculine portraiture are combined and displayed. It is said that the
key to human expression is most of all at the corners of the mouth.
Charged with the love of life, the love of its good things, and the love
of domination, is this mouth of Innocent’s. But is his eye less
revealing?—wary, here, and shrewd; watchful, yet full of fire. What a
study of character, and what a triumph of brush-work! A noble ‘Philip
the Fourth,’ harmonious in silver and rose-red, from the Dulwich
Gallery, sets forth, certainly not better than this does, the greatness
of Velasquez’ mission, nor has it quite as fully as this the pre-
eminent decisiveness which is so much of his charm.

(Standard, 30th December 1895.)

 FRENCH EIGHTEENTH CENTURY
PAINTING
There is plenty of variety in the Exhibition which the Academy
proffers to the Londoner this winter; and that was desirable—we may
almost say, necessary—for the Old Masters proper—such of them
as are shown—have not nearly the attractiveness and importance
that have been customary. This, under the circumstances, is scarcely
to be wondered at, for while of the Venetian painting there is but the
most doubtful or the scantiest trace, the great Dutch and Flemish
Masters of the Seventeenth Century are altogether unrepresented.
Rembrandt and Rubens, Hobbema and Snyders, De Hooch and
Nicholas Maas, are as if they were not. The Second Room, in which
they are wont to be gathered together, makes not a sign of them;
and the Third or Great Gallery contains a not quite happy or well-
balanced representation of the masters of the larger canvas,
although we note already one exceptional Claude, one faultless
Vandyke, and one superb Velasquez. Even the First Room, which is
exclusively English, is not so attractive as it has sometimes been;
though here and there a late Turner or an early Cotman, a Hogarth
‘conversation piece,’ vivacious and sterling, or a William Dobson
portrait, honest at least and capable, asserts unmistakably the hand
of a master. Much of the interest is concentrated upon the newer
occupants of the Second Room. Most of them are clever, but many
hopelessly incompatible.
This Second Room is given over to the French of two periods.
But what have the French of the Eighteenth Century in common with
the French of the Nineteenth? They have not even a tradition—they
have only a name. In England, as you pass from Richard Wilson to
Turner, from Hogarth to the elder Leslie, from Reynolds and
Romney, even to Etty and James Ward, the break of continuity is
never complete; the elders were in a certain sense the ancestors of
the younger men. But in France the incomparable grace of Watteau
found no reflection of itself in the powerful brutality of Delacroix.
Imagine Corot as the successor of Boucher—or Millet’s vision of the
peasantry succeeding to the suave dream of Prud’hon. Yet it is with
these juxtapositions of the essentially incompatible—with this
momentary joining together of those whom Heaven (or, indeed, the
peculiarity of their different genius) has put asunder—that we are
face to face at Burlington House. Yet, even as it is, there may be a
certain interest in the comparison; and if it is made fairly, the result
will be an enhanced appreciation of those great masters of the
Eighteenth Century, who were French in spirit as well as in name.
Briefly and slightly we will speak of these, and these almost alone.
As the authorities of the National Gallery have never yet been so
fortunate as to possess a Watteau, it is well for the nation that we
have, at Dulwich, one beautiful and unexceptionable example of his
art, and it is well too that that picture is now at Burlington House.
This is the canvas known as a ‘Ball under a Colonnade’—the scene
an arcade overlooking a garden; a lady and gentleman dancing a
minuet in the foreground, and, to right and to left of them, groups of
gay, happy people, disposed with Watteau’s naturalness and
Watteau’s consummate skill. The condition of the picture is faultless,
but this—with the great master of Valenciennes—is scarcely rare.
Watteau’s method was not a method of experiment; his technique
was as sound as his spirit was vivacious. What is more remarkable
—what would be remarkable anywhere—is the perfection of
accomplished workmanship, the carrying out to the end, with all the
vividness of a sketch, of a conception definite and elaborate from the
beginning. The colouring comes as an inheritance from the Venetian
—as Watteau’s adaptation of the palette of the supreme decorators.
There are many canvases by the master spirit of the French
Eighteenth Century larger of touch than this one; there are few more
happily intricate or truer to the graceful side of life, in a world finely
imagined as well as finely seen.
Next to this admirable picture, which only the Louvre, or
Edinburgh, or, it may be, Potsdam, can surpass, hangs a beautiful
and interesting work, avowedly by the pupil with whom Watteau was
once angered, but with whom in his declining days he was
generously reconciled, calling him to him, and imparting to him, as a
final gift, what he could of the secrets of his art. To Mr. Alfred de
Rothschild belongs ‘The Pleasure Barge,’ a work in which the
foreground figures are on a larger scale than in the Watteau, and in
which the handling is neat and obviously careful, even while it is
broad. If Pater himself had been the inventor of the genre, or even,
perhaps, if he had practised it in any fashion recognisably his own,
this piece of delicate and painter-like work—which, as it is, no one
with any true appreciation of the graceful can possibly dispraise—
would have had a higher rank. As it is, we recognise the dexterous
handiwork, the pupil’s strangely complete reception of his master’s
spirit; but feel, at the same moment, that Pater is an echo rather than
a voice—that his talent glowed only at the fire that Watteau lit.
Lord Rosebery is the possessor of a portrait of Robespierre, by
Jean Baptiste Greuze. It is a direct, good portrait; very sound, and
only perhaps a little nattering; the ‘sea-greenness’ of the
revolutionary, having, it may be, been apparent but to the
imagination of Carlyle. A second Greuze, highly and daintily finished,
and so appropriately small in scale, is the ‘À Vous’ of Mr. Clementi
Smith, an interior, with three friendly figures, and the glass genially
passing. Thus, though in both cases Greuze is represented
creditably, in neither is he represented by the kind of picture which in
our own day is associated with his name—in neither is there the too
seductive or too adroitly planned presentation of womanhood with its
lines refined to the slenderness of the child, or the child with, too
early upon her, and too consciously and evidently, the contours of
the woman. Fragonard’s ‘Letter,’ belonging to Lady Wallace, is an
engraved picture, small and of undoubted quality—the ‘Lettre
d’Amour,’ it should be called, properly—that is indeed its name in the
print—for the impulsiveness of the scribe, the earnestness of her
glance, the fire of her action, are due to no urgency of everyday
business, but to the ecstasy of love. Small as the thing is, in its touch
and spirit we recognise the southern temperament of sunshine and
storm, and remember that Provence was the land of Fragonard’s
birth, and that of its half-Italian landscape he has been till now one of
the most sympathetic of depictors. From the same gallery—from
Lady Wallace’s—we might conceivably have had the loan of a more
important Fragonard, ‘L’Escarpolette.’ To Baron Ferdinand de
Rothschild belongs the life-size portrait of Madame de Pompadour,
seen somewhat from below, lounging upon a sofa, and dressed in
the colours whose particular combination Boucher so much affected
—sky blue and rose. The picture has little restfulness, and not too
much of character—the mistress rather than the dilettante, was it,
perhaps, at the moment, the courtier’s business to paint. It is in a
high key, yet not precisely garish; a clever tour de force, agreeable,
gay.
Two interesting, since somewhat unusual, examples of Prud’hon
come from Hertford House; one of them, a little nude boy
inadequately described as ‘Le Zéphyr,’ a work in which a master of
tender sentiment, and graceful, even if somewhat monotonous,
design, betrays some debt to Correggio; the other the singular
allegory of ‘The Triumph of Bonaparte’—Napoleon surrounded by
female figures and by Cupids in a triumphal car—a picture in which
Prud’hon shows something, indeed, of himself, and much of his
obligation to the Greeks. It is a work more characteristic than the
first, and less ambitious than the second; but it is in his simple
designs most of all that we can discern best the real Prud’hon, with
just a touch of a Classicism never austere, and a world of
tenderness never actually effeminate.
In the ‘Odalisque,’ a sketch of an Oriental nudity, we see for once
that which is rather surprising in work of Ingres’s—a picture, that is,
in which, at the stage now reached, the colour is better than the
design, if it is not better than the draughtsmanship. The curved line
of the right arm repeats, surely, only awkwardly the curve of the
wide-hipped figure; and in the left arm, and in the modelling of some
portions of the trunk, there is little indication of the ‘correctness of
form’ which, to borrow Gautier’s phrase, was, at least with Ingres,
‘virtue.’ We are glad, of course, to see any canvas of Ingres’s at
Burlington House, because it is a sight vouchsafed but seldom, and
again, because Ingres is a master in whose labours there is, alike in
France and England, some right revival of interest. But it would have
been well had it been possible to represent him, not semi-romantic
and luxurious, limp in line, impoverished of colour, but rather, as in
‘The Apotheosis of Homer,’ august of conception, or, as in ‘The
Source,’ refined and exquisite of form.

(Standard, 4th January 1896.)

 CHARDIN
Jean Baptiste Siméon Chardin—a man of the bourgeoisie, as
original as Hogarth—was born on the 2nd November 1699. It was in
Paris, in the quarter of St. Sulpice, in the trading quarter where
shopkeepers and skilled artisans wait on the wants of the
neighbouring Faubourg St. Germain. He was of humble, decent
parentage, as befitted the place; and he had for godmother, when he
was christened, one Anne Bourgine, wife of Jacques Riche, who
declared herself unable to sign her name in attestation of the event.
Chardin’s father was a cabinet-maker; a dexterous craftsman, with a
speciality which, along with such honour as it afforded, he passed on
to one of his sons. He made, as Chardin’s best biographer has told
us, ‘ces billards monumentaux dont une planche de Bonnart nous a
gardé le dessin,’ and he made them for the King. But though he
worked successfully and well, the burden of a family weighed on his
fortunes, and his thought about his children was chiefly that they
might find means of support. Chardin was given little education, and
he was to have followed his father’s trade, but he showed, in his
quite early youth, enough of promise as a painter for it to be held
reasonable that he should enter M. Cazes’ painting-room. Cazes
was not at this time an unknown artist, but Chardin learned almost
nothing from him. The inventor of a genre, Chardin must needs be
his own best teacher. Time and his own individuality alone could
allow him his sturdy facility of touch. Only in working for himself
could he acquire the schemes of colour, the tones, the delicate
justice of expression, for which we admire him to-day. And if he was
already independent of a master in the selection of his method, still
more his own was his choice of the world which he observed to
record.
That world, of which Chardin has given us so veracious yet so
poetic a chronicle, was indeed the world of his daily life. His art
concerned itself with the familiar pursuits of the lower middle class,
homely because it was bound to be frugal, but refined because it
was French. The grosser manners which reflected accurately—as
manner is wont to do—the duller thoughts of our English lower
middle class of a hundred years since, would never have afforded to
an artist who desired inspiration from that class alone, such an
opportunity as was offered to Chardin by the lower bourgeoisie of
France. The ruder civilisation of the London of that period provoked
from English art no such exquisite transcript. And had it come, it
could hardly have been welcomed, for in the two countries the taste
of the day was different—the one was finer than the other. A
similarity in coarseness, in imaginative Literature—the unquestioned
grossness of Rétif de la Bretonne, placed by the side of the
grossness of Smollett—may seem to deny it. But pictorial art makes
the contrast evident. In France it was possible not only for Chardin to
exist, but for him to be valued.
In a life that was eighty years long—a life mainly calm, and filled
with peaceful work—Chardin was of course able to accomplish
much, and to labour with variety; but whatever may have been his
great successes in other departments of Art than that of genre
painting, it is by his mastery and originality in that that he may be
expected most to interest us. It was to that that he chiefly devoted
the middle years of his career. Other successes established his
fame; other successes came happily to its support, long afterwards,
when he was failing. We do not note, indeed, in Chardin, rapid
transitions, sudden transformations—the one occupation was apt to
overlap the other—but until we are to look into his course in great
detail it may be accepted as roughly true that it was first still-life that
engrossed him, then scenes of the domestic interior, and then, in the
late days, portraiture. Of the two first, he was a painter in oil. For the
third he employed pastel.
That, putting it briefly, was the course of his work. What was the
course of his life apart from work?—the course, I mean, of that
second life of the artist in painting or literature which is separate from
his production, yet must affect it so much? How about the people
who were nearest to him?—those whose society gave him his
pleasure or withheld it? Chardin was twice married. While he was
still engaged in the struggles of his youth, before his position was
assured, he met a young girl, Marguerite Saintar, at some modest
merrymaking, where his parents had planned that he should find her.
Whether or not he knew of their aims, his own wishes seemed to
have been at one with theirs. He liked Marguerite Saintar, who liked
him in return. The attachment appears indeed to have been so
mutual that in their loves there was no place for the proverb of the
‘one who kisses’ and ‘the other who holds out the cheek.’
In 1728, Chardin being twenty-nine, he was received into the
Academy, and by 1731 he was permitted to marry the young woman
to whom he was devoted. She was still but twenty-two, but in the few
years that they had waited, their positions had a good deal changed.
Chardin had won a reputation to which already a certain modest
money value was attached, and the girl had lost her small fortune.
The painter’s father was now opposed to the marriage, but his
objections were overcome. The couple were wedded for but four
years. Their only child, a son, remained to Chardin, when his wife
died, after a time of union troubled as to outward matters, and which,
in the wife’s declining health, it must have needed either satisfied
love or a happy temperament to make even fairly bright. Chardin’s
was a temperament of calm—the shrewd smiling face, painted by
himself when he was seventy years old, shows him yet elastic and
vivacious.
At forty-five—it was nine years after the close of the first
domestic episode—Chardin married a second time. Still in the parish
of St. Sulpice, to which from his youth he had been constant, he
wedded a youngish widow, Françoise Marguerite Pouget. Later, he
was to paint, in her agreeable features, a ‘rêve de femme et la
philosophie de ses quarante ans.’ She bore him company during the
rest of his life, from the days of his eminence to the days when fame
forsook him. On the whole he was fortunate. He worked so slowly
and deliberately that it would not have been easy for his painting to
have made him rich, but he had no unsatisfied ambitions, and he
enjoyed his art and his home and his assured friendships. No utterly
disabling blow fell on him till he had entered upon his later years.
Then his son died, who had been in a measure his pupil and
follower. The remembrance of this, and his own gathering age, and
the neglect of his art, affected him in the end, and he was a martyr to
the disease which caused Bishop Butler, who himself suffered from
it, to say that the keenest physical pleasure in life was the cessation
of pain. In the last days dropsy followed upon stone. On the 6th of
December 1779, Doyen wrote to a familiar friend of Chardin’s, M.
Desfriches—‘Madame Chardin begs me to inform you of her
situation, which is very pitiable.’ The last sacrament had been given
to the aged painter. ‘M. Chardin a reçu le bon Dieu.’ ‘He is in a state
of exhaustion which causes the greatest anxiety.’ Later in the day he
died.
The placid and agreeable cheerfulness of Chardin’s
temperament affords some key to the things which his art chose, and
the things which it left aside. Contentment with the daily round, and
with the common lot, alone could have allowed him to confine the
subject of his work within the limits of a narrow experience. He
painted what he saw, and he saw the bourgeoisie, nor was he
anxious to extend the field of his vision. He is the artist of ‘Le
Bénédicité,’ of ‘La Mère Laborieuse,’ of ‘L’Économe,’ of ‘La Bonne
Éducation’—that is, he is the painter of decent middle-class life, in its
struggle with narrow means, and in its happiness, which is that of the
family and of tranquil and ordered labour. Even the pursuits of his
youth, when he painted still-life, and the pursuits of his age, when he
was drawing portraits, accorded with that chronicle of the Parisian
bourgeoisie which was the work of his mid-career; for the portraits
were yet of everyday folk, and the still-life, the fruits, the china, the
copper vessels, the silk-lined workboxes in whose familiar textures,
colours, tones, his brushes revelled so adroitly, were the natural
accessories and accompaniments of an existence led always within
the limits of the home. Thus regarded—and this is the fair way of
looking at his course—there is really no sudden change of route to
be discovered in his artistic progress. His was the record of the
things he saw; but in his youth he did not feel himself strong enough
to portray, in what he saw, that which was one day to interest him
most—Humanity.
 He began very humbly. It was in 1728, when he was but twenty-
nine, that his picture of ‘The Skate’ attracted some notice; and other
objects of still-life were grouped with it at the Exposition de la
Jeunesse, in the Place Dauphine, when M. Largillière—not a bad
judge, one would have thought—inspected his things, and, not
knowing that they were Chardin’s, protested that they must be the
work of some very excellent Dutchman, and that Chardin would be
wise if he copied them. Soon after that, as we have seen, he was
accepted at the Academy, and from that time forward he exhibited at
the Louvre. An exhibitor for forty years, he was for twenty years a
hanger. That was a capacity in which he was sure to make enemies;
but at least he was never blamed for bestowing unmerited
prominence upon his own labours.
Chardin won, and he would have deserved to retain, a reputation
by his still-life pictures alone, for the truth is, none of the older
Dutchmen had conceived of common matter so nobly; and,
sentiment apart, none had brought to its representation a touch quite
so large, a palette quite so rich. To Chardin belongs at once a reality
without meanness, and an arrangement without pretension or
artifice. The very gathering of his groups of household things has a
significance; it is characteristic; it reveals in him that sense of human
interest with which his forerunners were scarcely occupied, and
which we, in these later days, have missed equally in men as
different as Blaise Desgoffe and William Hunt. Into Chardin’s pictures
nothing is put thoughtlessly; and, possessed as he was of a
perception uniquely keen to note the varied individuality of matter
and its artistic interest, he yet had little of mere pride in his ability to
paint so well the object and the substance of his choice. The simple
materials gathered on his kitchen-slab have their place there of right,
and tell the story of modest and frugal provision—from the little red
jar of rough but highly glazed pottery, to the eggs and the saucepan.
In one picture there will be exactly the material for the humblest
meal, and the things that are required to prepare it—that and no
more—a transcript from his own limited home in the early days,
when he was an ill-rewarded painter and the husband of an ailing
young woman whose fortune was gone. In another, and it is most
likely of a later time, there are the fruits for the dessert of the well-to-
do, and with them is the silver and the gold, and the sugar-bowl of
now famous Dresden.
But though Chardin does justice to a luxury of colour, as in the
‘Goblet d’Argent,’ and in the picture—both are in the Salle Lacaze—
of the brown wooden jewel-box whose pale-blue soft silk lining
catches so discreet and delicate a light, the charm of the very simple
never escapes him. A tumbler of water and three tiny onions, and
there is a subject for Chardin. And in all the still-life of his earlier and
of his middle years there is an unfailing vigour of draughtsmanship, a
quiet truth of chiaroscuro, an effect of unforced picturesqueness; and
with easy decisiveness he executes intricate schemes of colour. His
hues, above all, are blended and fused; the influence of colour upon
the colour that is near it he is found to have studied to perfection. He
is a master of the elaborate interchange of reflections between the
silver cup and the glazed copper-hued pottery, on which its light
chances to play. And now the reflected light is cold and clear, and
now it is vague and warm. To see these things as Chardin saw them,
is really to see them for the first time. He opens to us, in a measure
that is entirely his own, the charm of the world of matter.
No engraving—hardly even the soft lights and the opulent
shadows of mezzotint—could render the character of this still-life of
Chardin’s. No etching, short of Jacquemart’s, could do justice to
work in itself so subtle, yet apparently so bold. But the manly and
refined line-engraving of the French engravers of the middle of the
Eighteenth Century was happily able to translate, with singular
excellence, the work of Chardin’s middle age, a work in which the
rendering of matter counted indeed for something, yet in which
character, sentiment, story counted also for much.
It was in 1734, and still at the Place Dauphine, that Chardin
showed that which seems to have been the first of his genre pictures
—a picture of a woman sealing a letter. From that time onwards, to
about the beginning of his last decade, the painter’s work consisted
chiefly of the record of the daily life of the civilised bourgeoisie, on
whom Fortune never smiled too lavishly, but from whom she rarely
turned with a quite empty hand. The value of the bourgeois virtues,
of reticent affection, of subdued love, of calm persistency in
uneventful and continually recurring labour, Chardin himself must
have felt. Unlike too many of his Dutch brethren, he saw life, and
dealt with it, where life was not gross. His children have an
unconscious innocence along with their reflectiveness; his boys are
all ingenuous; his young women bring the delightfulness of grace to
the diligent doing of household work in kitchen or parlour; and his
seniors, in gaining experience, have not lost sweetness.
And with the interest of pleasantness you have in Chardin’s case
the assurance of the interest of truth. Hogarth was as true, but he
was less pleasant; Morland was as pleasant, but he was less true.
Hogarth painted an individual; Morland generalised or idealised the
individual, and was contented with a type. Chardin’s figures do not
cease to be typical of the race, while they retain the delicate
accuracy of personal studies, and betray an untiring reference not to
a few models only, but to all the nature he lived amongst. Always
without exaggeration, always with directness and a deep simplicity,
the self-effacing art of Chardin accomplished its task, writing for us in
picture after picture, or print after print, the history of the quietest of
refined lives that the Eighteenth Century knew; arresting for us the
delicate gesture, in itself so slight, yet so completely revealing; and
tracing, on honest and sensitive faces, every expression that rises
above broad comedy, or falls short of high passion.
Unaccustomed though it was to the sincere portrayal of homely
things, Chardin’s own generation became quickly appreciative of the
finest phase of his art, and from 1738 to 1757 (as M. Emmanuel
Bocher has so laboriously and carefully recorded in a volume which
is the inevitable supplement to the De Goncourts’ literary study) the
best engravers of the time—Laurent Cars, Lépicié, Surugue, Le Bas,
and others besides—were busy in the translation of Chardin’s work.
Such accomplished draughtsmen with the burin could not fail, of
course, to express his obvious subject, and to retain in the black and
white of their copperplates the sentiment of the canvas. But they did
more than this—their flexible skill allowed them to retain often
Chardin’s manner and method; so that the very men who had
rendered best, or as well as the best, the trembling light of Watteau
and his immense and airy distance, with all its delicate gradations
and infinite planes, are found to be the complete interpreters of
Chardin’s peculiar breadth and simplicity, and of that deliberate
firmness which is opposed the most to Watteau’s masterly
indecision. The low prices at which the prints were issued made the
prints saleable, and popularised Chardin’s art among the educated
middle class. Often but a couple of francs were charged for an
engraving worth, if it is in fine condition, three or four guineas to-day.
Contemporary criticism, and especially the criticism of Diderot,
was favourable to Chardin, and may have assisted his fame. There
were years in which ‘the father of modern criticism,’ occupied as
much with intellectual charm and moral teaching as with technical
perfection, fairly raved over the painter whose work was the
eulogium of the tiers état. Lafont de St. Yonne, in 1746, places him
very high in the ranks ‘des peintres compositeurs et originaux.’ In
1753, the Abbé le Blanc writes of him—‘Il prend la nature sur le fait.’
And a few years later it is Diderot who says: ‘It is always nature and
truth. M. Chardin is a man of mind. He understands the theory of his
art.’ Again, ‘M. Chardin is not a painter of history, but he is a great
man.’ Then there dawns upon the critical mind some sense that the
painter is repeating himself. From the old mint he reissues, with but
slight modification, the old coins. Still-life apart, he can give us no
new subjects; and the familiar ends by being undervalued, and the
excellent is held cheaply. At last, from Diderot, in 1767, there comes
the undisguised lamentation, ‘M. Chardin s’en va!’
Fortunately, however, though popularity passed from him, the old
man was able to interest himself in a fresh department of work. He
had painted a few portraits at an earlier time, but now his attention
was attracted to portraiture in pastel—that was the medium in which
an artist as masculine as himself, and as penetrating, had obtained
an admitted triumph; and why should Chardin fail where Quentin
Latour had brilliantly succeeded? Nor did he fail altogether. He was
able to draw back upon himself, in the last years, a little of the old
attention. And the pastel portraits, if they had the ‘fragilité’ had also
the ‘éclat,’ which a well-known verse attributes to the then
fashionable method. And in subjects which were portraits only, the
flesh tints were no longer, by any possibility, effaced by the stronger
reality which somehow Chardin had been wont to bestow upon the
accessories in his pictures.
Pleasant to him and well merited as must have been that slight
return of appreciation which came to Chardin in his eighth decade, it
is not by the labour of that time that we are now likely to class him.
With the galvanised revival of a classical ideal, his name, after his
death, fell into dishonour. Some of his worthiest pictures tumbled,
neglected, about the quays of Paris. Only within the last quarter of a
century has there been evident the sign of an intention to do justice
to his work; and for us his principal distinction is, as I have said
already, that he is not only foremost, but was for years alone, in the
perception of the dignity and beauty of humble matter, and of the
charm which Art may discover in the daily incidents of the least
eventful life.

(The Art Journal, 1885.)

 MOREAU
One of the prettiest chapters of the volume in which French artists of
the Eighteenth Century have recorded with grace and freedom the
lighter manners of their age, is that certainly which was written by
Moreau le Jeune. He employed, with extreme diligence, half a life in
writing it. Born in March 1741, he died in November 1814. The son of
a Parisian wigmaker, of the parish of St. Sulpice—which was also
Chardin’s—he, with his brother, Moreau l’Aîné, a painter not greatly
known, was drawn early into the circle of the producers of Art. He
was a pupil of Louis de Lorrain, a now forgotten painter, whom he
followed, at seventeen years old, to St. Petersburg. Coming back to
Paris, he was in the workroom of Le Bas, the engraver, and there he
learned the secret of the burin’s expression. He engraved with
delicate skill. It was but slowly, however, that in his own designs he
showed himself an accomplished draughtsman; for though his
daughter, Madame Carle Vernet—who wrote an account of him—lets
us understand that he was born drawing, there is much of his early
work that is obviously laboured. Suddenly, the De Goncourts tell us
—those critics who, with M. Maherault, the industrious collector,
have studied him the best—suddenly his power of draughtsmanship
declared itself—the individuality of his vision and method. It was in a
drawing commissioned by Le Bas, who sought to engrave it, the
‘Plaine des Sablons’—a review by Louis XV. In it he was revealed as
the successful draughtsman of festivals, the historian of lively
ceremonies. And such success was rewarded. For, with
commendable promptitude, in 1770—the year after the drawing was
executed—he was appointed ‘Dessinateur des Menus-plaisirs,’ and
five years later, when Cochin retired, ‘Dessinateur du Cabinet du
Roi.’ Thus, while still a young man, Moreau’s position was assured,
and he was left free to use much of his time in works on which it was
possible to bestow a more exquisite grace than any which could be
fitly employed upon labours in which official portraiture counted for
much. Moreau was free to invent for himself, and free to illustrate the
best literary inventions of a literary age. His career was before him,
and the day not distant when he would produce ‘L’Histoire des
Mœurs’ and the illustrations to the ‘Nouvelle Héloïse.’
I have indicated now, by a brief line or two, the direction in which
Moreau le Jeune must chiefly be studied, and the places in which he
may be seen if men would see him at his prime. Perhaps it may be a
matter of taste, and a matter of taste only, whether one prefers him
in his more spontaneous or in his more official work. The
draughtsman is the same in either labour, though the inspiration is
different. For me his greatest achievement is ‘L’Histoire des Mœurs,’
or, in another phrase, ‘Le Monument du Costume,’ which must be
spoken of in detail later on. For many, and above all, for the lovers of
curiosities, the seekers in byways of history, his celebrity hangs
chiefly on his performance of the various ‘Sacres’; his records of the
public functions, his ‘Fêtes at Versailles for the Marriage of the
Dauphin and of Marie Antoinette’; his ‘Crowning of Voltaire’—at the
Théâtre Français—in 1788; his ‘Fêtes at the Hôtel de Ville,’ on the
birth of a new Dauphin to Louis xvi. Among these we may look
perhaps principally at the ‘Crowning of Voltaire,’ for it has the virtues
of them all. The drawing was engraved by Gaucher, who has
preserved in the print the lively touch of the original. But what, one
asks, was the occasion of the ceremony, what the cause of the
‘crowning’? At the Théâtre Français, Voltaire’s Irène had been
performed for sixteen nights. In those days of limited audiences that
was a brilliant success. The bust of the poet is placed then in the
middle of the stage, to be adorned and declaimed before. Madame
Vestris—another, of course, than the Vestris known to Englishmen—
reads aloud, and with emphasis, the lines of which the Marquis de
Saint-Maur has hurriedly been delivered. Other performers, in more
or less classic garb, cluster about her with garlands in their hands,
ready to bestow them on the bust. In a box, high up on one side of
the theatre, sits the demi-god, with two fair friends—one of whom is
his niece, Madame Denis, and the other that Marquise de Villette to
whom the print that represents the occasion is dedicated. The
playhouse is full. The clapping of hands is lusty and enthusiastic.
People rise in their boxes. Men stare upwards from the pit. Fine
ladies crane their necks to catch a glimpse of the hero with the thin
angular face, with its tell-tale lines of wit and mockery and
observation.
Moreau must have seen the sight himself, and borne away the
vivid recollection of it. Never was l’actualité—the thing that passes,
the thing that may be insignificant to-day, but is to be History to-
morrow—never was l’actualité designed with a more fitting mixture of
grace and precision. But in the more important work next to be
spoken of, there was greater room for invention. Therein was
Moreau, in the true sense, dramatist as well as draughtsman, for
even if the outline of the subject was suggested to him by the
speculator who undertook the publication, it was Moreau alone who
gave veracity and character to the head and gesture of each person
in the play.
The ‘Suite d’Estampes pour servir à l’histoire des Mœurs et du
Costume dans le Dix-huitième Siècle’ began to be published in 1775
by Prault, of Paris, though it has been of late suggested that it was
really conceived and undertaken by a German of the name of
Eberts. The notion was to give a series of plates in which the most
correct and fashionable manners, and the dress of the moment, and
the furniture in vogue, should be together portrayed. The artist first
pitched upon to recall them was, strangely enough, a foreigner.
Freudeberg, a Bernese settled in Paris, a draughtsman of grace and
charm undoubtedly, but of a closely bounded talent, had found
favour with the public, and it was he who was chosen to make—and
he did make—the first dozen drawings. The best engravers of the
day were forthwith to engrave them. But by the time the first series
was finished—and two odd pieces, I believe, not generally taken
account of as belonging to the set—Freudeberg became home-sick
and resolved to depart, and the business of continuing the work,
which in the view of its promoter was to be a practical guide to
fashion, was assigned to Moreau. Moreau did the second series, and
then the third. The second dealt with the fortunes of a lady; the third
with those of a grand seigneur, who was likewise something of a
petit-maître. And for each there was a text, bald, it may be, but in a
measure appropriate. It was anonymous, and chiefly descriptive. A
little later, in a new issue, it was sought to associate the work with
popular literature, and Restif de la Bretonne—a free-spoken ‘realist,’
whom, after long neglect, it is now, not altogether without cause, the
fashion to enjoy—was invited to write his commentary, and his
commentary took the form of quite a new interpretation. ‘Restif,’ says
M. Anatole de Montaiglon, ‘au lieu de respecter le sentiment des
trois suites, a isolé chaque motif et chaque planche.’ Restif, that is,
has invented for each plate some fresh little story.
In life, the mind associates with a given and chosen landscape
the more magnetic and memorable of the figures that people it.
These alone bestow on it the reality of its human interest, and the
others may be ignored. And so, among the masses of description
and criticism of the arts of design, the writings which we really
associate with the works they endeavour to vivify are those generally
which have a charm of their own—the charm of the literary touch.
Restif de la Bretonne’s stories, with all their faults, have just that
charm. There is that in them which permits their author to take
possession of the theme, so that the theme belongs no longer at all
to whatever dullard chanced to be the first to treat it.
Two designs which I never see without wanting them are the
most vivacious of Moreau’s series. They are the ‘Sortie de l’Opéra’
and ‘C’est un fils, Monsieur!’ Others, even among the most
admirable, are more limited in their aim. The ‘Grande Toilette,’ for
instance, as its name implies, is occupied more particularly with
raiment. It is a very summary of fashion. It is the great lord, or the
consummate petit-maître, displayed to us when dressing is
completed. The edifice, it seems, has just been crowned.
‘Monseigneur,’ vividly writes Restif de la Bretonne, ‘Monseigneur is
dressed; for some minutes already he has been standing; his cordon
bleu is assumed; they have just given him his purse, and he has his
bouquet.’ Yes, the edifice has been crowned: Monseigneur is ready;
for—and the touch is untranslatable—they have achevé de le
chausser. You see the neat shoes, the garter, the closely drawn
stocking, the whole paraphernalia of the leg he was proud of.
‘Achevé de le chausser’—it is all in the phrase. And now he is free,
no doubt, to enjoy the idleness of the morning, to do a service to a
comedian, and, after an author has had audience of him, to accept
the dedication of a book.
‘La Petite Loge’ is just as characteristic. What one sees is the
inside of an opera-box, of which the tenants are a couple of
bachelors of fashion. A dance is over, on the stage, and a girl who
has taken part in it has been brought into the box, to be encouraged
—to be touched under the chin. And here is an epitome of Restif’s
story. A Prince, struck with the beauty of a ragged little child in the
street, determined that she should be educated—pensioned her and
her mother. Soon, however, busied with the greatest business of his
class and day—‘occupied with intrigue,’ the story-teller tells us—he
forgot his little protégée. She had her money regularly—all that she
was promised—but he was too busy to think of her. Then, one night,
at the Opera, smitten with the charm of a new dancer, he inquired
who the dancer was, and ordered her to be brought to him. As soon
as she was in the box, ‘Il lui passa sous le menton une main un peu
libre’; but then it was disclosed to him that she was the child he had
been struck with. Coulon, the famous dancing-master, had by this
time taught her to some purpose. As for her future, her mother—an
ancestress, I take it, of Halévy’s ‘Madame Cardinal’—had already a
register of one hundred and twenty pages, filled with the propositions
of the Court and the town. ‘Sa mère se reservait le droit de les
comparer,’—for nothing, it seems, even by a Madame Cardinal,
should be done in a hurry. Well, among the girl’s many lovers there
was one who was unselfish. What did he want but to marry her! The
Prince—not minded now to be outdone in chivalry—generously
urged that he should be accepted, and Isabelle was glad to consent.
But the King ordered the lover’s arrest, and the young people were
separated. The girl lived prudently, in London and in Paris. She and
her art were admired; but she died of a sudden illness. ‘Her young
lover was in absolute despair, and the Prince, her protector, wept for
her.’
In the ‘Sortie de l’Opéra’ we see the elegant and famous crowd
that surged out of the theatre after a performance long looked
forward to. ‘Gluck’s new Operas—it is essential to see them,’ said a