The Federal Republic of Germany became signatory to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, on November 15, 1965, and its provisions entered into force on June 26, 1979.
US attorneys seeking service in Germany would be wise to familiarize themselves with the mandatory character of the Convention as set forth in Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988).
Canadian attorneys should consult provincial precedent — Canadian courts take a more nuanced view of the Convention, but effectively reach the same conclusion: its limitations must be observed. Regardless of forum court requirements, the service rules of the receiving country must be observed, or enforcement of a judgment may become impossible.
The Central Authority for Germany is not a single entity; in fact, Germany has 16 Central Authorities, one for each of its states (“Länder”). Requests for service must be sent to the Central Authority of the Länd where the recipient is located, or they are likely to be significantly delayed or rejected outright. Our staff is adept at identifying the appropriate Länd, and has outstanding professional relationships with most of the German Central Authorities.
Länder scrutinize service requests quite closely. In particular, entity names and addresses indicated in pleadings must precisely track the names and addresses listed in the official German corporate registry. These names and addresses must be consistent across all documents (ie: spellings may not vary from summons to complaint).
Further, where served documents indicate summons expiration dates or imminent hearing dates, requests will be rejected as not respectful of a recipient’s rights. Of course, timetables must allow a defendant/respondent to timely answer, so if the Central Authority doubts that service can be effected quickly, the request will be returned. Optimally, a summons will neither expire nor be accompanied by a court-imposed timetable; our staff attorneys can provide guidance on drafting compliant documents.
Small, sparsely populated Länder process requests more quickly than their larger counterparts, especially those like Bavaria, where significant international commerce prompts more litigation.
Germany’s public policy against plaintiff windfalls makes Central Authorities and courts wary of demands for large awards, especially punitive and treble damages. Specifically, “inchoate award demands” may prompt appeals to local judicial authorities to refuse to execute Hague Requests.
Among a Hague member state’s justifications for refusing to execute a request for service is what it perceives as either an infringement on its sovereignty or a threat to its security (derived from Article 13 of the Convention). Germany is known for its Article 13 refusals and, as such, counsel must be extraordinarily careful to avoid pleading language that might raise such a concern by the Central Authority.
LLS’ attorneys can guide counsel through the maze of difficulties that may arise in serving German defendants.
Many Germans speak English, to at least some extent. However, litigants cannot rely on the prevalence of English language education to justify not sending a translation. Article 5(a) of the Hague Convention requires that the summons and complaint be accompanied by a German translation.
In all cases, however, documents must reasonably be understood by the defendant in order to fulfill US Due Process requirements. In particular, documents served upon a recipient who speaks neither English nor German may even need to be translated into an additional language. US practitioners should explore this issue at length with our legal staff.
Germany objects to all forms of alternative service under Article 10. As such, service may only be effected via the Central Authority channel outlined in Article 5.
LLS can assist you with service and can help you understand and meet the requirements for service of process in Germany. Please call 1-800-755-5775 for more information.
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