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If you were to serve a defendant in Austria today, service would be via a Letter Rogatory.

Here’s how it works: A Letter Rogatory is transmitted to the appropriate court in Austria (and more generally any overseas court) by diplomatic pouch for which the Department of State (DOS) requires a $2,275 fee for its services. Worse, Austria uniquely requires that the documents be translated into German by court-certified translators, all of whom live in Austria.

Needless to say, because these translators have a monopoly, the price for translation is more than double the price for German translations of documents to be served on defendants in Germany and Switzerland.

The good news is that Austria became a signatory to the Hague Service Convention in November 2019, and service to Austria will be pursuant to the Hague Convention starting September 2020. Hague service to Austria means that after September 2020, the DOS’s handling fee will be unnecessary.

Austria’s Reservations & Declaration to the Hague Convention

In July 2020, Austria published its reservations and declaration to the Convention. Here are those reservations along with our comments:

Reservation

The Convention “shall not apply to the service of documents addressed to the Republic of Austria, including its political subdivisions, its authorities and persons acting on its behalf; such service shall be effected through diplomatic channels.”

Comments

This is an interesting and perhaps unique reservation. It is applicable in Foreign Sovereign Immunity Act services (28 USC §1608). Because this Act is hierarchical in its application, this reservation means that service upon the Austrian government will begin at §1608(a)(3).

The interesting and more practical issue is the nature of the translation. The plain meaning of the reservation would seem to indicate that Austria may (and we emphasize may) no longer require that all translations be preformed by Austria’s court-certified translators. Once Austria sets up its Central Authority, we’ll find out if the method of translation allowed in Austria will be changed.

Be forewarned, however, that many countries retain their old customs when they sign to the Hague Convention.

Reservation

“Austria declares that formal service will only be effected by the Central Authority if the document to be served is written in or translated into the German language.”

Comments

For the most part, this is a typical declaration of German-speaking countries and Asian countries. It means that Austria will not allow service by mail or by agent from the US.

In another declaration, Austria makes this explicit when it places “opposition” to service under Article 10 (which authorizes service by mail or agent).

Reservation

Austria objects to service by diplomatic agents.

Comments

Service by this means is used very uncommonly and is therefore unlikely to prove an issue for Legal Language.

Reservation

“Austria declares that a judge may give judgment even if no certificate of service or delivery has been received if the conditions set out in Article 15 para. 2 of the Convention are fulfilled. Pursuant to Article 16 para. 3 of the Convention, Austria declares that the application for relief will not be entertained if it is filed after one year following the date of the judgment.”

Comments

This too is an interesting declaration. Normally, Article 15 default judgments can be obtained when a Central Authority has not issued a Hague Certificate of Service after six months from the date of the request’s receipt.

What this declaration states, is that Austria will not recognize Article 15 default judgment unless more than a year has passed without the issuance of a Hague Certificate.

The unstated corollary to this declaration would appear to be that the turnaround time (the time between when a request for service arrives in Austria and when the Hague Certificate will be issued) for Hague Service in Austria will be between 6-12 months.

Serving Process in Austria? LLS Can Help!

Legal Language Services has years of experience executing service via Letters Rogatory as well as via the Hague Service Convention.

Contact LLS today to learn more about how we can assist you.

Call 1-800-788-0450 or simply fill out our free quote form.


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