Until recently, a lawyer issuing proceedings in a German court against a foreign party could, as a matter of principle, assume that she had done everything necessary to suspend the statute of limitations or otherwise comply with an applicable time limit if two requirements were met: First, she had to file the statement of claim (Klageschrift) with the court in good time. Secondly, upon the court’s request the claimant had to immediately pay the advance on court as well as an advance on costs, if any, for a translation for service abroad. If these requirements were met. then service was deemed to have taken place on the date of filing the statement of claim with the court pursuant to Section 167 ZPO (Zivilprozessordnung; Code of Civil Procedure).
Under well-established case law, the courts treated service in these circumstances as imminent (demnächst). Delays caused by the courts themselves – the court administration can be slow at times, an example of which we see below….. – were not held against the party. Where service within the EU is concerned, the Frankfurt Court of Appeals (Oberlandesgericht) now sees things differently. The holding (Leitsatz) of the Frankfurt decision reads as follows:
“Because Article 5 (1) EU Service Regulation leaves the claimant free to decide whether a translation is to be attached to the document to be served, the claimant has not done everything reasonable for service of the statement of claim to be effected “imminently” after the expiry of the limitation period if he does not attach a translation when service of the statement of claim is necessary in an EU member state (here: in France), but insists on a translation upon the court’s request and the statement of claim can therefore only be served one year after the expiry of the limitation period.”
One would have thought that the claimant’s lawyer had done everything correctly: In the statement of claim, she had requsted an invoice for the translation costs to be issued, and it appears that the advance had been paid on time. However, the Darmstadt District Court (Landgericht) for quite some time failed to find a translator. It not serve the statement of claim with a translationon the French party until almost one year after it had been filed. For the Frankfurt Court of Appeals, this was no longer “imminently”. The court further held:
“In these circumstances, the claimant must be held responsible for not having attached the translation of the statement of claim – which was not actually required – when the statement of claim was filed. If the claimant had already attached a translation when it filed the statement of claim, the statement of claim would not have been served on the defendant before 31 December 2015 – because service had to be effected abroad – but certainly before the actual date of service, that is, on 6 December 2016. It is evident from the court files that the District Court ordered the service of the statement of claim with the [court-commissioned] translation after 24 October 2016. A period of about 6 weeks has therefore elapsed for service abroad. If the translation had already been available when the action was filed, service would presumably have taken place as early as February 2016. Under these circumstances, service in December 2016 can no longer be regarded as “imminent” within the meaning of Section 167 ZPO.”
As a result, the Court of Appeals of Frankfurt am Main dismissed the action as time-barred.
Comment
In my opinion, the Frankfurt Court of Appeals got it wrong. It de facto created an obligation on the party to procure a translation itself, and pushed the responsibilty for the court’s delay to the party. This appears to be wrong for two reasons: First, the claimant’s lawyers opted for service with a translation, which is one of the options the EU service regime allows. Secondly, the lawyer relied on the court to procure the translation, a time-honoured practice in German litigation. She was therefore entitled to rely on the court to handle this part of the service process. At the very least, the court ought to have communicated the delay and set a deadline for the party to procure a translation itself.
For the German readers amongst you, Benedikt Windau at zpoblog.de provides a detailled discussion, reaching more or less the same conclusion.*
Practical hints
If in doubt (or in a hurry), a party having to arrange for service within the EU should either have apply for the the statement of claim to be served without a translation or attach a translation itself; such a translation does not have to be certified. In any event, the party should not rely on the court to procure the translation – at least not unless and until the Frankfurt Court of Appeals has been overturned by the Federal Supreme Court (Bundesgerichtshof), before whom the matter is currently pending.
If a statement of claim – or indeed any other document falling within the scope of the EU Service Regulation – is served in the original language in another EU country where the original language is not an official language, the addressee may refuse acceptance pursuant to Article 8 (1) EU Service Regulation. Service is then deemed to be pending and ineffective until the documents have been re-served with a translation.
However, there is no risk for the plaintiff if he has opted for service to be effected without translation, as the initial date of service will be decisive once there has been such a re-service. Article 8 (3) EU Service Regulation stipulates: “However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2).”
For a detailed discussion on the need for translations, see Philine Fabig/Benedikt Windau, Übersetzungen bei Auslandszustellungen innerhalb der EU?, NJW 2017, 2502, 2503 (paywalled).
Oberlandesgericht Frankfurt, Judgment (Urteil) dated 8 May 2019, file no. 13 U 210/17
* Update: Benedikt’s has published an English version of his case note on ConflictsofLaw.net.
The photo is courtesy of and copyright by Kandschwar