Previously published on EU Law Live.
On 1 July 2022, the Regulation (EU) 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (‘the 2020 Service Regulation’) started to apply, succeeding the 2007 Service Regulation. Among the innovations brought by the 2020 Service Regulation, is the introduction of a special procedure to trace the recipients’ addresses in another Member State. Member States can employ, at least, one of the following three methods to trace the recipients’ addresses (Art. 7):
- Providing for designated authorities to which transmitting agencies may address requests on the determination of the address of the person to be served
- Allowing persons from other Member States to submit requests, including electronically, for information about addresses of persons to be served directly to domicile registries or other publicly accessible databases by means of a standard form available on the European e-Justice Portal; or
- Providing detailed information, through the European e-Justice Portal, on how to find the addresses of persons to be serve.
The use of this special mechanism to trace a recipient’s address was the object of one of the questions submitted to the ECJ in the case C-222/23, Toplofikatsia Sofia. The judgment was rendered last April 16.
This case has its roots in a national order for payment proceeding before the Sofia District Court. During the examination of the national order for payment, the Sofia District Court detected some potential incompatibilities between Bulgarian national law and EU law. According to Bulgarian law, Bulgarian nationals are always required to have their permanent address in Bulgaria, even if they live abroad. The national population register contains the details of their national permanent address. However, concerning the habitual residence abroad, the national population register only mentions the country where this is located. This was the situation of the debtor against the national payment order that was requested: living abroad but with a mandatory permanent domicile in Bulgaria. Furthermore, according to the case law of the Bulgarian Supreme Court, Bulgarian courts always have jurisdiction to issue national payment orders against Bulgarian nationals, even when living abroad.
The Sofia District Court asked the ECJ to examine whether the prerequisites under Bulgarian law to have a permanent address in Bulgaria and possibility of issuing always national payment orders against Bulgarian nationals were compatible with the terms of the Brussels I bis Regulation. The Brussels I bis Regulation establishes that persons ‘shall be sued in the Member State of their domicile’ (Art. 4(1)), and exceptionally, they ‘may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7’ contained in its Chapter 2 (Art. 5(1)). The Brussels I bis Regulation leaves the notion of domicile to the discretion of national law. However, the ECJ determined that relying on the permanent address that Bulgarian nationals are required to have to establish their domicile ‘undermines the effectiveness of Regulation No 1215/2012, since it amounts to replacing the domicile criterion, on which the rules of jurisdiction laid down by that regulation are based, with the criterion of nationality’ (para. 60)
The ECJ also found that the Bulgarian Supreme Court’s interpretation that courts are always competent to issue payment orders against Bulgarian nationals, even when domiciled abroad, contravened the text of the Brussels I bis Regulation. Under the Brussels I bis Regulation, Bulgarian courts might not have jurisdiction to issue national payment orders against Bulgarian nationals when these are domiciled in other Member States, and Bulgarian courts do not have jurisdiction under other grounds than the domicile.
Besides the inquiries concerning the Brussels I bis Regulation, the Sofia District Court also submitted a question about the 2020 Service Regulation. The Bulgarian court asked whether, in case it has jurisdiction to issue the national payment order, it could rely on the special procedure of the 2020 Service Regulation to trace the recipient’s address. In this regard, the ECJ stated that the 2020 Service Regulation can be used as long as the recipient of the documents resides in another Member State. The ECJ acknowledges that, as occurred with the 2007 Service Regulation, it is not possible to rely on the 2020 Evidence Regulation when the recipient’s address is unknown. However, unlike the 2007 Service Regulation, the recast offers a special mechanism to trace the defendant’s address. For that reason, the Bulgarian court could rely on this mechanism to trace the debtor’s address in the Member State where he has his habitual residence. In general terms, the judgment does not offer an added value for the interpretation of the Service Regulation. However, the judgment serves to point out that one of the main deficiencies of the 2007 Service Regulation has been addressed in the recast: ignoring the recipient’s address should no longer be a barrier to using this instrument.
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