Service of Process Liability in Europe
By Joseph A. de LA CUETARA
Attorney at law in Europe
If you are a Process Server know this before engaging your liability
for a fist full of dollars.
There are two main methods to choose from when serving documents in
Southern Western European Civil Law Countries, both are proposed by
the Hague Convention and have the same legal value, one is less
reliable than the other, but the legal effects of both methods are
One, a public service of the "Judicial Administration" called
"Centralized" because it uses the "Central Authority" or government to
transmit the documents. A intergovernmental free exchange method
submitted to constrains.
Two, by the use of a private service provider, alternative method,
called "decentralized", it uses an "International personal private
process server" and can also be completed under the Hague Convention.
Paid, and therefore submitted to quality.
International Service of Process, by either method, Centralized or
alternative decentralized, is ruled by two different legal systems,
linked by the treaty of the Hague. The main law, called « Lex Fori, »
is the law of the country where the documents are issue and where
initial judgment's take place:: "Lex fori forum". These rules,
govern service of process validity and recognition, but not
necessarily its effects in the jurisdiction where documents where
served. Recognition and effects depend on internal laws of civil
procedure and "exequatur". Nevertheless, It corresponds to each "lex
fori" and their "foum" to determine their "acceptable service"
requirements for the service of process abroad, but keeping in mind
that: The act of notification is performed under a different legal
system with different exigences, those of a sovereign state. The "lex
fori forum", must respect the law of procedure of where the
documents are served: Specially for those laws considered as
"imperative or necessary", as well as those related to
"Confidentiality", "Privacy" and "Image" under the "felony and
misdemeanor" umbrella. These "legal obligations" exist even if the
effects of the judgment will remain at the "lex fori forum" as could
happen with a local "divorce", indeed, depending on the "litis causae".
In effect, a "Lex fori forum" can not accept in procedure a "foreign
illegal procedural actuation" that violates foreign laws. Because of
this, you must act with due diligence and in harmony with local codes
of procedure. Or, your liability will be engaged in a "Criminal or
Civil" manner, if not "quashed".
The Centralized method seems to be the most appropriate and reliable
but is not, is not mandatory, as explained by the Hague Convention
It is not therefore the only method available to serve documents
abroad as is the general believe or as explained by many "translation
companies", or even the U.S. Department of State in their web pages.
There are, nevertheless, a series of alternatives channels more
reliable as contemplated in the convention and which have been well
accepted by the signatories countries. They present and have more
advantages than the centralized. This character of "not mandatory"
is inspired by "International Civil Procedural Liberty", as expected
by the Hague Convention of 1954, plus the flexibility of the
Conventions of 1965. Both, have opened the door to a more efficient
and fast way of serving, resulting in a gain of time and money by
cutting "Red Tape", reducing obstacles, the cost of translation and
eliminating the risky exam of legality prior to service or the choice
given of defendant to refuse service if documents are translated.
"Liberty to notify" in the "Convention of Civil Procedure" has been
wrongly understood by many "Common law Attorneys" because the
"mechanism of service" applied and employed unconsciously has been in
violation of internal laws of Procedure of Civil Law Countries. They
have used as a reflect the same server as for their state
notifications. This results, in general, in a future impossibility of
judgment enforcing, Non exequatur or a simple "quash". Common law
countries "mechanism of notification" can not be impose or use to
serve in Civil Law Countries", they lack the required guarantees,
such as of confidentiality, Privacy, Reliability, Integrity and many
other aspects of the special protection of defendant's rights and
obligations of Civil Law Codes. These rights and obligations are
proposed since the first "Roman Napoleonic Codes". The philosophy
behind is that the "concept" of "trust" is different in each lega
system, No Governmental Identification Card exist in common law,
there is no central land registry, Notaries are simple
individuals...In Civil Law everything is suspicious and therefore
surrounded by "guarantees" enforced by the state..
We provide a system for International Service of Process, a third
method, healing the disadvantages of the Hague Conference's
Centralized method and critics over the abuses in the use and
application of the decentralized method. Indeed, we provide a non
complicated service of process legal, reliable and fast. We call it a
"Hybrid system of Process". Our service of process research to
arrive to this system is based on our qualifications as European
Attorneys at Law and therefore our knowledge of Civil law in Spain,
France, Italy and Portugal.
Indeed, more than a method, we propose a "system of service" that
applies the principles of the Hague Convention combined to each
jurisdiction and their laws of procedure, in order to obtain the
maximum legality and protection of litigants. This is done gradually
and by steps. Our system can only be applied in SWE Roman-Napoleonic
Civil law countries and should not be generalized to other Civil Law
Countries inside or outside Europe. The choice of method depends on
many practical and cultural legal aspects, reliability, cost, time1
and of future desired or undesired effects on your liability..
On the other hand, our "Hybrid system of international personal
private service of process" combines, not only "methods", but also the
different "smaller" channels or options, by steps, to take the
maximum advantages offered and obtain the best legal guarantees: We
consider it as "Quash of Service" or "Liability" proof, please
consult us so we can discuss your case service in detail2.
The Hague Convention Centralize method has many "legal lacunae" or
serious defects: As a free governmental service that does not uses a
"Fast Independent Private Process Server.", as is requested by many
courts and litigants. Unlike our service, it obliges to costly
translation and the contents of summons can be exam for legality
before they can be served. Otherwise, the defendant can refuse
service, without possible appeal, delaying your work. The translation
itself can be easily "questioned". In Europe, courts only accept
translations from translators that are "Certified by them" and these
are listed each year by the different court of appeal. Therefore,
better is, not to translate the documents.
On the other hand, an essential element on the "Centralized" is the
requirement of an exact address of addressee. A problem, because there
is no possibility of "locating a defendant". If a defendant changes
address or the address is not correct , service is paralyzed and
returned, waisting your time and money. The requirement of "Personal
Service" is understood in a different way and in practice, service is
completed as what is known in Common law as "Substitute service".
Remark therefore that the use of "insistence and perseverance" is
not possible by the "Centralized method".
These above reasons explain why, most Common Law Attorneys have used
patches to remove obsta-cles: The use of their local process
server, their friendly translation company or their neighborhood's
Private Investigators. Unfortunately for all of them, without knowing
that by doing this, in disrespect for foreign law, they are liable of
"fraud to international law", "Defamation", .... and to complete
the apocalypse, the judgment obtained will not pass "Exequatur".. No
doubt then that ignoring, the Euro-pean right of image and privacy
amongst other felonies incurred has undesired consequences.
Jurisprudence has considered services completed the "American way" as
irregular and have engage the liability of the legal intruders.. The
"Lex fori Forum" and the "Plaintiff" are obliged to respect the legal
requirements of the European jurisdiction where documents will be
The objective of service of process abroad is transmitting a
notification to a defendant, inform him of a "cause" in which he is
part and what are his rights and obligations. These rights must be
respected and protected by the rules of the legal art and in order to
avoid "Procedural defenseless".. The Hague Convention canalizes these
notifications taking in consideration internal law, imposes the
protection to the defendant rights and obligations as well as those of
the plaintiff. The "Lex fori Forum". in the origin country or in the
destination country must determine, not if the notification was done
but if it was "properly done".
In "Civil Law Countries". Service of Process, for internal courts or
for foreign, is considered a manifestation of "Jurisdictional Power"
In Europe. the monopoly of legal representation, actuation and
consultation, has been given traditionally, since middle ages, to the
different "Legal Corpora-tions" or legal professional groups. Unlike
common law countries where "Private detectives", "Trans-lators" or
almost anyone over a certain age and capable can perform these "legal
contents acts", in Southern Western Europe only legal professionals
Logically explained, if internal laws of Civil Procedure in Civil Law
Countries establishes for internal service of process a procedure,
that requires guarantees given only by the use of these recognized
"liberal professionals" How come for International Service of
Process you can expect to use anyone, instead of a "Legal
professional" thought to do so! Would you use a non-certified Process
Server in your State to serve documents in another state where he is
neither certified as a Process Server?
When in Rome, do as the Romans!
The need of legal notice, information and the form of the
notification itself are present at all moments and can become an
serious issue. Nonetheless, all kinds of service must follow these
internal rules of procedure adding under certain circumstances a risk
of non completion or irregular competition. In Europe a Court
notification must be preceded with an explanation on how to respond
and the available options to defendant. The Hague Convention obliges
service to be accepted by defendant voluntarily and knowingly like a
"bilateral obligation in Civil Law" (See Article 5 (b) alinea of the
Hague Convention). Therefore, if the defendant is not "capable to
understand" what he is receiving, the service has a "Legal Vice" and
is "Voidable" and the "Defendant can refuse it "Void". If he is not
advised by an Attorney at law and by Legal Notice, he is in
"Procedural defenseless".and therefore service of process is "Void"
The Hague Convention compels to the "voluntary acceptance".of
service.. Indeed many courts have refuse to accept in exequatur a
judgment having an irregular service of process because: the lack of
trust in the qualifications and methods employed by the Process
Server; "Service of process is not throwing summons over the fence",
: "you can not service documents on an inexistent address, but the
affidavit of the server says documents were served!" ...
Other "smaller" channels of service of process exist and have
different legal value and effects. Service by a "Private Individual
or Currier, UPS, Fedex, DHL, Postal, fax, internet (email or
messenger), as confirmed by different jurisprudence, they lack of
"guarantees of delivery of contents" they are mostly considered as
"evidence of an address",.We use these residual channels to reinforce
our "Hybrid System of International Private Service of Process". And
verify an address before personal service..
Unscrupulous Service of Process Providers in common law countries,
intruders in Civil Law Countries. intermediaries in the International
Service of Process, use and recommend mostly the "Central Authority"
because their profit is generated by the cost of "shaky" translations
of documents and eventually the "locate Investigation" service. Often,
service providers in common law countries promote that they know a
lawyer in Europe when they dare to propose the "Decentralized method"
and contaminating your file with defamation.. Another extra income
comes from the suggested "APOSTILL"3 or the use of a local Notary
Public. These are unnecessary expenses and they both require a
costly translation. Some "Investigators" intruder servers will even
propose you an "affidavit" indicating the "Status of service" for a
couple of dollars, Indeed, you will be charge very cheap for a free
governmental Service of Process, but your "needed cost" will
"surprime" and surprise you.
It is a shame that Justice in Common law countries procedures often
accepts for international service of process persons that are not even
certified "Process Servers" in their own jurisdiction, employing
anyone for international service is a disregard on justice and
disrespect for International law.
In "Civil law Countries", it is considered that "Legal Guarantees, are
only given to and are given by "registered and insured legal
professionals, recognized and controlled by the governments and
grouped in special associations or corporations submitted to ethics.
The law and confirmed Jurisprudence protect's the "defendant's rights"
against poor « qualities and qualifications » of a "dummy" server.
The principle is, the "Protection of the rights and obligations of
litigants" by due diligence.
We propose ourselves as expert witness over any dispute related to an
international service of process completed in Southern Western
Please be aware, I accuse, and I insist:: Translations by "
Translators", that are not "Certified" by the "Local Appellate or
Superior Court" are useless, just like the Apostil or the use of local
Notary Public. . Service. The use of a non registered "Attorneys at
Law" in any jurisdiction of the European Union for acts reserved to
the legal profession causes "contamination of your case", engaging
your liability. "Protecting the rights of litigants", is not possible
when using a "Non Certified translation company to service or as
intermediary", a "Private detective", an "American Process Server" or
Summarizing: The two main methods have the same legal value within
the Hague Convention and no "Hierarchy"exist amongst them, one is bad
and the other is worse, they are equally poor, but combining them is
possible and results to be more reliable, you obtain all legal
possible guarantees: Our Hybrid system; An Independent Private
Personal Service of Process by steps and advise eliminates the
"problematic"and fills the "Lacunae" of the Hague Convention4 methods
Our hybrid system provides that the rights of the plaintiff and
defendant are guarantee and protected by registered and insured
multilingual Attorney at Law in the Civil law Country of service..
Documents are delivered personally in all confidentiality by a legal
professional who will advise, in the language of the defendant,
giving complete legal notice and explaining how to proceed. All
services are completed with mandatory secrecy and neutrality,
professionalism and respect for internal laws of Civil procedure. The
defendant does not have an option to refuse service, or claim to be
"unprotected" there is no "a priori" exam of contents or delay, no
translation's cost or apostils, no promises of service but a
"Jurisdiction act performed according to local law by a qualified
Our price list, herewith included, reflect the need of taking in
consideration many legal and practical aspects of the service of
process in Southern Western European Civil Law Countries specially to
avoid incidents and if challenged, appellate "quash" proceeding".
Please fill out and send us the "quotation form" included, if you
have specific requirements and can not adapt to our price proposition,
we can always propose you a more adapted fee to your specific
We hope we will count with you amongst our clients, please visit our
website for more copies of forms, and do not hesitate to contact us
by telephone, from U.S. dial 011 33 4 93 16 27 38 or by email us to
email@example.com if you have any questions or need written
legal advise. We are eager to serve our foreign colleagues and will be
happy to send you our professional references.
Thanking you in advance for your time and consideration, I am,
Joseph A. de LA CUETARA
Attorney at law in EuropeJoseph A. de LA CUETARA,JD-MBA
Attorney at Law/Abogado/Avocat
Palais Alphonse Karr 2, Rue Rossini
Nice 06000 France
Tel-Fax 33 4 93 16 27 38
International Private Service of Process do's and don't
The Ideal international service of process in Southern Western
European Civil law Countries can only be completed in a "Plaintiff's
Attorney to Attorney Server to Defendant" direct environment, having
the following characteristics:
1.Method Confidentiality: obtained only by Attorney secrecy obligation
2.Respect for the local Code's of Civil Procedure and Civil Codes
3.Use of Judicial Officer when required by local law for internal service
4.Due diligence of name and address of addressee defendant
5.Voluntary acceptance of Service by defendant
6.Offer of legal option, advise and Court Notice to defendant
7.Diplomatic legalization of the affidavit of Service
8.Summons and complaints pages numbered
It is unnecessary to;
A. Use the Central Authority
B. Translate the documents
C. Apostil the affidavit of Service
D. Use a local Notary Public
E. Prior Legal compliance exam
Avoid to use:
a. Process Server of your country or from your country
b. Private Investigators, Courier, Intermediaries or detectives
c. Mail, email or fax, which are only evidence of address
d. Non Certified or Not listed Translators by the local Court.
e. A non inscribed or non barrister Attorney at Law in Europe
f. People or business locator service
Thanking you in advance for your time and consideration, I am,
Joseph A. de LA CUETARA
Attorney at law in Europe