In a recent judgment of May 8, 2019 (Case No. 13 U 210/17, BeckRS 2019, 12531) based on Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the “Regulation”), the Higher Regional Court of Frankfurt (the “Court”) held that if a plaintiff opts for a translation of the statement of claim (although such translation is not required under the Regulation), plaintiff is responsible to obtain such translation. If the service of the statement of claim on defendant is delayed for lack of a translation, plaintiff bears the risk that under the applicable German law the service of the statement of claim does not suspend the running of the limitation period because it is served several months after the filing.
Plaintiff, an insolvency administrator, filed a claim against a defendant domiciled in France. The limitation period for the claim expired on December 31, 2015; the claim was filed at the Darmstadt Regional Court on December 15, 2015. Together with the statement of claim, plaintiff did not submit a translation. Instead, plaintiff requested that the Darmstadt Regional Court obtains a translation of the statement of claim. Subsequently, plaintiff paid an advance on the translator’s fees which the Darmstadt Regional Court had requested. Thereafter, the Darmstadt Regional Court had difficulties finding a translator. Only in October 2016 did the Darmstadt Regional Court receive a translation. The statement of claim was served on defendant in December 2016. Against this background, defendant raised the objection of statute of limitations. The Darmstadt Regional Court ruled in favor of plaintiff. This decision was based on Section 167 of the German Code of Civil Procedure (“ZPO”). Pursuant to this Section, if service is made to suspend the running of the statute of limitations, this suspensive effect already begins with the filing of the statement of claim if the statement of claim is then served “in the near future” (“demnächst”) and the person seeking service did not cause a delay. The Darmstadt Regional Court held that the service in December 2016 was still “in the near future” of the filing of the statement of claim in December 2015, because the delay was not due to plaintiff’s fault. Rather, the delay was caused by the slow handling of the matter by the court. Defendant appealed this decision.
Decision of the Higher Regional Court of Frankfurt
The Court reversed the first instance decision and dismissed the claim as statute-barred. The Court reached the conclusion that plaintiff had not done all that was reasonably required of him to effect service “in the near future” pursuant to Section 167 German Code of Civil Procedure.
At the outset, the Court expressed doubts as to whether the service of a statement of claim twelve months after its filing could ever be considered a service “in the near future” in the literal sense of the word. Since the Court found that the prerequisites of Section 167 ZPO were not met anyway, the Court left that question open.
The Court then explained that under Section 167 ZPO plaintiff must undertake all reasonable efforts to ensure that service is made “in the near future”. What can reasonably be expected from plaintiff if the claim is to be served abroad must be determined in the light of the Regulation.
The Court held that pursuant to Article 5(1) of the Regulation, plaintiff is in principle not required to submit a translation of his statement of claim for service on defendant. Plaintiff is thus free to have the statement of claim served on defendant without a translation. However, defendant is protected by Article 8(1) of the Regulation which allows him to refuse the acceptance of a document if he does not understand the content of that document or if the document is written in a language other than the language of the receiving Member State (here: France, where the defendant was domiciled). If defendant refuses to accept a document, then such document must be served together with a translation. However, in case the document is served to meet a certain deadline (e.g. to suspend a limitation period), defendant’s refusal will not hinder the suspension of the limitation period, because the relevant date for the suspension of the limitation period is the date of the initial service attempt (Article 8(3) Sentence 3 of the Regulation). In the present case, plaintiff did not take advantage of the opportunity of serving the statement of claim without translation on defendant. Instead, he explicitly asked the Darmstadt Regional Court to obtain a translation before service of the statement of claim in France, although he was not obligated to do so by the Regulation. Against this background, the Court held that because plaintiff opted for such a voluntary translation, he was responsible to obtain the translation. By relying on the court to obtain the translation for him, plaintiff therefore did not undertake all reasonable efforts to ensure that service could be effected “in the near future” in accordance with the requirements of Section 167 ZPO. According to the Court’s ruling, had plaintiff obtained a translation himself, the service of the statement of claim (together with the translation) could have been effected much sooner than in December 2016. In the Court’s view, the service of the statement of claim in December 2016 could thus not suspend the limitation period, which expired on December 31, 2015. On this basis, the Court dismissed plaintiff’s claim as statute-barred.