The Hague Convention, Default Judgments and Deemed Service

In a series of judgments on July 3 and July 17, 2012, the Federal Supreme Court (Bundesgerichtshof) has ruled on the compatibility of deemed service under German law with the Hague Service Convention. The Court held that only the first court document in a dispute must be served pursuant to the Hague Service Convention. Any subsequent service of court documents can be, in accordance with the provisions of domestic German law, by post. Then, Sec. 184 German Civil Code (ZPO) applies, according to which “two weeks after it has been mailed, the document shall be deemed served.” In the cases before the Federal Supreme Court, default judgments were served by post, and the time period for filing protest (Einspruch) was determined on the basis of deemed service.

The facts in all five cases were as follows: Actions were brought in Germany against defendants in Turkey. The courts issued an order that required the defendant to file its intention to defend the action (Verteidigungsanzeige) and to appoint an authorised recipient in Germany (im Inland ansässiger Zustellungsbevollmächtigter; Sec. 183 ZPO) within two weeks from receipt of service. The court order set out the legal consequences of failing to comply with the order, in particular, the risk of a default judgment.

The Turkish defendants ignored these deadlines, and default judgments were issued. These judgments were then not served underthe HagueService Convention, but posted to the defendant’s address inTurkey. Protest against the default judgment had to be filed within two weeks from receipt. The defendants took no action. In each case, the claimants subsequently asked the court to effect service of the default judgment for a second time, apparently to comply with enforcement requirements outsideGermany. Service was effected a second time, in some cases under the Hague Convention, in others using the diplomatic route and it was only then that protests were filed. If Sec. 184 ZPO applied, however, the time period for the protest would be calculated from the day of posting the default judgments, and the protest was to be dismissed as too late.

And this is exactly what happened: All protests were dismissed, and the dismissal was upheld upon appeal by the Court of Appeals (Oberlandesgerichte) in Stuttgart and Cologne, respectively, and upon further appeal by the Federal Supreme Court. The court held that the Hague Convention did not require formal service of the default judgment: If formal service abroad was required, then, but only then, the Convention applies. But the question whether the default judgments required formal service was for domestic law to decide, and under domstic law, service by post was permitted (“Das HZÜ steht der Anwendbarkeit des § 184 ZPO danach schon deshalb nicht entgegen, weil dort nur die Modalitäten einer Auslandszustellung geregelt sind [..], nicht aber die Frage, ob überhaupt eine förmliche Zustellung im Ausland vorzunehmen ist. Letzteres ist vielmehr durch das nationale Recht autonom zubeantworten.”).

The second event of service was held to be irrelevant for the purposes of calculating the time limit. Neither did it extent the previous period, nor did it trigger a new period. The court finally considered whether the right to a fair trial under German law and Art. 6 of the European Convention on Human Rights required a different interpretation of the law. It held that the concept of deemed service did not violate the foreign defendants’ right to a fair trial or any international agreements with Turkey. The default judgments hence had become res judicata, and fully enforceable.

The jurisprudence of the Federal Supreme Court applies to cross-border litigation with any Hague Service Convention jurisdiction. Foreign defendants ignore the order to enter a notice to defend and to appoint an authorised recipient in Germany at their peril, as any subsequent document, however important and time-critical, may be subject to deemed service. The foreign defendant would need to refute the statutory presumption of service, which is a fairly high threshold to overcome. However, as other cases have shown, it can be done.


Here is the link to one judgment, file no. VI ZR 222/11 dated July 17, 2012. The others are file no. VI ZR 226/11 and VI ZR 288/11 dated July 17, 2012 and VI ZR 227/11 and VI ZR 239/11 dated July 3, 2012.


This piece has also been published on Ted Folkman’s Letters Blogatory, together with interesting edidorial comment from Ted, who does not agree with the Federal Supreme Court. In his words:  “I’ve been arguing for a while that this holding is wrong, and that the Convention should apply to all judicial documents served in a case, but it seems that the weight of authority is pretty clearly against me. My view rests on the following considerations: (1) if only the initial documents are within the scope of the Convention, then how do we account for the Convention’s provisions relating to extrajudicial documents? (2) if only the initial documents are within the Convention’s scope, why does the Convention use the term “writ of summons” in Articles 15 and 16 but not in Article 1, where it uses the more general term “judicial document”?”

Having read the judgments again in the light of these considerations, I could not find any discussion of these systematic arguments based on the Convention itself.


  1. Peter, I’m really open to the possibility that I may be wrong about this, but I appreciate you posting my editorial comments. I really don’t know of a good answer to the textual points about the Convention I’ve raised. On the other hand, sometime textual arguments prove too much. For instance, some US courts hold that Article 10(a) does not permit service of process by postal channels because it uses the word “send” instead of “serve”, a view that to me at least seems clearly wrong. (Interestingly, though, if those courts were right then the Bundesgerichtshof’s view would have to be wrong, otherwise Article 10(a) would serve no purpose!) I can also see an argument in favor of the Bundesgerichtshof’s view that rests on the notion that in some civil law countries case-initiating documents have to be served by officers of the state and thus somehow implicate the state’s sovereign interests while other documents do not have to be served by an officer.

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