Simplifying access to justice in cross-border litigation, the national practices and the limits of the EU procedures. The service of documents example

The European Union has adopted a number of regulations in the area of civil justice in the attempt to simplify cross-border litigation, reduce its costs, and support the citizens and businesses in obtaining a speedier judgment and enforcement for their claims, facilitating thus their access to justice.These instruments range from regulations facilitating the coordination between national rules (e.g.in the area of international jurisdiction, recognition and enforcement, cross-border service of documents, and the taking of evidence ), to harmonised procedures that provide an automatic recognition and enforcement of the judgment issued for certain types of civil and commercial matters (e.g. the EOP, the ESCP and the EAPO ). Despite the intention of the European legislator toprovideuniform procedural frameworks for specific cross-border procedures, harmonizing and simplifying the different norms and practices disciplining cross-border claims in Europe, numerous difficulties emerge in the actual implementation of the various procedures within the national systems.One critical source of complexityfor the users of such procedures lays in the different practical application of the EU regulations in the Member States. The impact of these issues is particularly strong on the non-repetitive players that want to make use of the harmonized procedures. For these parties,proceedings such as the EOP and the ESCP, translate intotime consuming and, often, costly actions.Such costs and efforts too often become evident only after the cross-border claim was filed and the party has already invested time, effort and resources in initiating the proceeding. Some studies carried out in this area (Ng, Mellone 2011; Ng, 2012; Mellone, 2013;Continiand Lanzara, 2013;Kramer and Ontanu, 2013;Ontanu,2016) have already identified a number of issues that the interested parties need to overcome in order to successfully employ the EOP and the ESCP in order to recover their claims. These concern aspects such as the scarce and often too genericinformation regarding: (1) the courts having jurisdiction, (2) the fees and costs of proceedings and (3) the specific means of payment that must be used for this purpose, (4) the possible need for the claimant to be actively involved in the service of documents on the defendant and (5) the valid methodsof service. These barriers in accessing justice, deriving from the different national rules that must be followed in order to carry out many of the specific tasks of the 'same'EU procedureclearly hinder the use and diffusion of suchprocedures (Contini and Lanzara, 2014). Delays (often of several years) in providing and updating the information on national procedural specificities on the e-Justice Portal (Ng, Mellone 2011; Ng, 2012) and the extensive time needed for making updated data available in the main, if not all the EU official languages, do not help improving the situation. This situation generates a potential trap for the non-repetitive user who is encouragedto begin a cross-border procedure. He/she invests time and resourcesbased onthe suggestions of appealing pamphlets such as'A citizens' guide to cross-border civil litigation in the European Union' published by the EC, thatpresent a vision of quick and simple procedures based on standard forms which can be easily filled and submitted. It is only afterwards that the claimantfinds himself/herselffacingthe actual reality of national laws and practicesto which the EU regulations delegate key parts of the proceedings. The recent efforts of the European Union for digitalizing cross-border procedures through the e-CODEX project has raised the awareness on this source of complexityand on the impact of these national differences on the uptake of the EU harmonized procedures. While thedigital interoperability for trans-border caseshas been reached between e-CODEX piloting countries, the persistence of procedural barriersare clearly hampering the smooth flow of legal agency (Lanzara, 2014), contributing to the low use of the system. This increased awareness has resulted in several actions, both to support the provision of updated information by the e-Justice Portal, and to investigate some of more diffused specific issues, such as the calculation of court fees, payment methods, and service of documents. Building on this experience and findings, this paper investigates the impact of the application of the national service of document provisions on the EPOprocedure and on the claimant's access to justice through this harmonized procedure in 16 EU Justice Systems.In carrying out the analysis,the authors use: (1)the data gathered through a questionnaire circulated between e-CODEX project partners resulting in replies from the legal experts of 14 Justice Systems (Austria, Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Malta, Poland, Portugal, Scotland, Spain, England and Wales); (2) the e-CODEX study on notification and service of documents (Velicogna et al. 2014b);(3) additional data from 2 more Justice Systems (The Nederland and Romania) collected specifically for this paper. The data analysis allow us to draw some preliminary conclusions on the service of documents in the European Unionand its importance in facilitating or hampering access to justice for the parties litigating cross-border. Further, it draws attention on a few specific points that need to be addressed in future discussionsbetween scholars, practitioners and legislators. First, there is an important differentiation in terms of procedures for notification and service of documents in civil litigations within the EU. Second, the national procedures and practices applicable for the notification and service of documentsin most cases apply to the EPO Regulation.Third, this results not only in very different proceedingsthat have to be followed by the user of the same harmonized EU procedure, but also in a very different level of complexity affecting the usersdepending on the justice system of the competent court.