LEGAL LANGUAGE SERVICES

Service of Process in Germany

International Service of Process in Germany under the Hague Service Convention

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 on June 26, 1979.

US attorneys seeking service in Germany would be wise to familiarize themselves with the mandatory character of the Hague Service Convention as set forth in the US Supreme Court case Volkswagenwerk A.G. v. Schlunk (486 U.S. 694 (1988)).

The Hague channels for Service

The Hague Service Convention offers plaintiffs a number of channels by which service may be accomplished in the foreign country.  All of these channels constitute proper “Hague Service” under US law, although there are advantages and disadvantages to each in terms of cost, speed and enforceability.

The most commonly used channels for service under the Hague Service Convention are:

• service through a Central Authority in the foreign country (Article 5)
• service through an alternative channel (diplomat, mail, judicial officer) in the foreign country, provided that the  country does not formally object (Articles 8, 9 and 10).

For further information about all of the Hague channels of transmission provided by the Service Convention see below.

Service through the Central Authority

The Hague Service Convention provides that service may always be effected through the judicial system of the destination country.  This is accomplished by filing a request with the Central Authority designated by that country (as described in Article 5 of the Convention), and requesting either formal also called compulsory service or informal also called voluntary service.

Hague Forms. The Hague Service Convention provides that a set of three model forms (“Request,” “Certificate,” “Summary of the Document to be Served,”) and one recommended form (“Notice”) must accompany the documents to be served.  These forms are designed to summarize the key contents of the court documents and guide the defendant to the appropriate action.

Central Authority

Germany has 16 Central Authorities, one for each of its provinces (“Länder”)

Baden-Württemberg: Präsident des Amtsgerichts Freiburg Holzmarkt 2 79098 Freiburg

Bayern: Präsidentin des Oberlandesgerichts München Prielmayerstrasse 5 80097 München

Berlin: Senatsverwaltung für Justiz von Berlin Salzburger Strasse 21-25 10825 Berlin

Brandenburg: Ministerium der Justiz und für Europaangelegenheiten des Landes Brandenburg Heinrich-Mann-Allee 107 14460 Potsdam

Bremen: Der Präsident des Landsgerichts Domsheide 16 28195 Bremen

Hamburg: Präsident des Amtsgerichts Hamburg Sievekingplatz 1 20355 Hamburg

Hessen: Oberlandesgericht Frankfurt am Main Zeil 42 Postfach 10 01 01 60313 Frankfurt am Main

Mecklenburg-Vorpommern: Justizministerium Mecklenburg-Vorpommern 19048 Schwerin [ Puschkinstrasse 19-21 ]

Niedersachsen: Niedersächisches Justizministerium Am Waterlooplatz 1 30169 Hannover

Nordrhein-Westfalen: Präsident des Oberlandesgerichts Düsseldorf Cecilienallee 3 40474 Düsseldorf

Rheinland-Pfalz: Ministerium der Justiz des Landes Rheinland-Pfalz Ernst-Ludwig-Strasse 3 55116 Mainz

Saarland: Ministerium der Justiz des Saarlandes Zähringerstrasse 12 66119 Saarbrücken

Sachsen: Präsident des Oberlandesgerichts Dresden Schlossplatz 1 01067 Dresden

Sachsen-Anhalt: Ministerium der Justiz Hegelstr. 40-42 39104 Magdeburg

Schleswig-Holstein:  Ministerium für Justiz, Frauen, Jugend und Familie des Landes Schleswig-Holstein Lorentzendamm 35 24103 Kiel

Thüringen: Thüringer Justizministerium Werner-Seelenbinder-Strasse 5 99096 Erfurt

Legal Authority for Service

Service through the German Central Authority is authorized by Sections 170- 194 of the German Rules of Civil Procedure  (“Zivilprozessordnung” or “ZPO.”)

Methods of Service

German law provides for several types of service:

• Service by registered mail issued by a the court clerk/registrar of the local district court (“Amstgericht”) (commonly employed by the Central Authority)
• Simple or informal notice  (voluntary acceptance of service)
• Personal service by a court bailiff
• Service by hand insertion into a mailbox
• Service by leaving a summons on defendant’s door or in his mailbox containing a warning that documents must be retrieved from post office or court office
• Various forms of substituted service
• Service by publication (not generally employed by the Central Authority)

At present, service of foreign pleadings by fax or e-mail is not valid in Germany

Caveat: Certain types of substituted service and mailbox service which are routinely effected under German law may be deemed insufficient under US law.

Who effects service: a court bailiff, a registrar of the court or a postman (depending upon the method of service employed).

Service through the alternative channels

Germany has filed the following declarations with respect to the alternative channels of Hague service:

Articles 8 and 9:

With regard to direct service upon nationals of the requesting state or direct service (without compulsion) upon nationals of the destination state via diplomatic or consular agent:

Germany objects to service in its territory by foreign diplomats upon German nationals. (Pursuant to the Convention, Germany cannot object to service by foreign diplomats upon nationals of the diplomat’s own state.)

Caveat:  US litigants should be aware that US diplomats will generally not serve process abroad and this channel is rarely employed in US civil actions. (For further information, see US Consular Regulations).

Article 10(a):

With regard to direct service by postal channel:

Germany objects to service by postal channel.

Caveat: US plaintiffs may not have recourse to direct mail service upon defendants in Germany.  Moreover, even where permitted, mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of US judgments in the destination state—even when the destination state has not objected to such service.  US courts are also split regarding propriety of mail service under the Convention.  US plaintiffs are advised to proceed with caution when employing this channel.  (For further information, see Service by Mail.)

Articles 10(b) and (c):

With regard to direct service by a judicial officer, official or other competent person of the destination state:

Germany objects to service by judicial officer.

Caveat: US plaintiffs may not have recourse to direct service by judicial officer upon defendants in Germany.

Furthermore, note that “judicial officer,” “official” or “competent person” are terms defined under the laws of the destination state, not under the laws of the requesting state.  German attorneys, detectives, policemen or private persons are not judicial officers and are not empowered to serve process. Private process service is unknown.  (For further information, see Service by Judicial Officers.)

Translation Requirements under German law

Germany requires an official translation into German of all documents to be formally served (that is, served using compulsion) pursuant to Article 5, subparagraph 1 or Article 10(b) and (c).

Article 7 of the Hague Service Convention provides that the Hague model forms should be completed in English or in French or may be completed in the language of the destination country.   However, note that LLS has been informed by a German court that translation of the Hague model forms into German is advisable, as service of German language documents is also a “basic” or constitutional right under German law.

Germany does not require translation into German for service effected pursuant to Article 5, subparagraph 2 (voluntary service) or Article 10(a) (mail service); however, note that US notions of due process will always require that the defendant understand the documents with which he or she is being served.  US due process is a constitutional right under US law and as such, trumps the requirements of the Convention and foreign law.

For further information on translation requirements under the Hague Service Convention, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.

Service of US Subpoenas in Germany

US subpoenas are not routinely served upon foreign witnesses pursuant to the Hague Service Convention.

Residents or citizens of the United States located abroad however must be responsive to US subpoenas served upon them.  For further information on the issues involved, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.

On the other hand, any national who is not a resident or citizen of the United States is not required to respond to a US subpoena delivered to him or her in Germany.  In essence, such a subpoena loses its coercive effect once it leaves US borders.  Because it is no longer a coercive instrument, and because the witness is not subject to the jurisdiction of the issuing court, the question of “how to properly serve” a subpoena is irrelevant.

However, testimony and documents can be compelled from a non-party witness located in Germany. LLS can offer you extensive advice on various approaches to securing such evidence pursuant to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, also called the Hague Evidence Convention and foreign law.

LLS can also assist you in arranging voluntary depositions of willing witnesses on foreign soil.  In Germany, for example, LLS can arrange for depositions to be taken before a commissioner or a consular officer and can secure the required prior permission of the German judicial authorities.   LLS can also provide court reporters, videographers, interpreters and videoconferencing for private depositions and formal hearings.

For further information, contact us by phone at 1-800-755-5775 (outside the US and Canada: +1.913.341.3167) or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation and ask to speak to a specialist in foreign evidence-taking.

Note:

The information provided on this site is for informational purposes only and should not be construed as legal advice.  The information is believed to be accurate at the time of posting;  however, LLS is not responsible for any information which may have become outdated or inaccurate.

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