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Last update: 01-08-2007
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Service of documents - Belgium

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TABLE OF CONTENTS

1. What does the legal term "service of documents" mean in practical terms? Why are there specific rules on the "service of documents"? 1.
2. Which documents need to be served formally? 2.
3. Who is responsible for serving a document? 3.
4. How is the document in practice normally served? 4.
5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)? 5.
6. Is there any written proof that the document has been served? 6.
7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)? Can the service of the document nevertheless be valid (e.g. can violations of the law be remedied) or must a new effort to serve the document be made? 7.
8. Do I have to pay for the service of a document, and if so, how much? 8.

 

1. What does the legal term "service of documents" mean in practical terms? Why are there specific rules on the "service of documents"?

Where cases are brought to court, communication is extremely important. It is absolutely vital for the parties to proceedings and the judge to be aware of the plaintiff's claims, the defendant's arguments, the course of proceedings and the court ruling. A party which does not accept the ruling and appeals to a higher court must notify the other parties of its decision. Notification consists in handing over or sending documents (e.g. summons, statements of claim, submissions to the court, judgments, appeals, etc.). We are not concerned here with the documents themselves but with the way in which they are remitted to the parties and, where appropriate, the courts. The relevant rules are set out in Articles 32 to 47 of the Judicial Code (Gerechtelijk Wetboek / Code Judiciaire; see website of the federal justice department (Federale Overheidsdienst Justitie Nederlands under Rechtsbronnen -> geconsolideerde wetgeving: juridische aard = gerechtelijk wetboek, woord(en) = eerste deel algemene beginselen; click on Opzoeking, Lijst and Detail to access contents; OR Service public fédéral Justice Français under Sources de droit -> législation consolidée: nature juridique = code judiciaire, mot(s) = principes généraux; click on Recherche, Liste and Détail to access contents.

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In Belgium a distinction is made between "kennisgeving" / "notification" and "betekening" / "signification" (service).

In essence, service means issuing a document to another person via a government official. In Belgium this official is referred to as a "gerechtsdeurwaarder" / "huissier de justice" (bailiff). In practice, the bailiff serves an identical copy of the document on the person in question.

In contrast to service, notification is effected when a court document (original or copy) is sent by post, i.e. without the involvement of a government official.

In general, documents are served. Notification is used in specific cases where required by law.

2. Which documents need to be served formally?

The law specifies which documents must be served or notified; however, there are too many of these for an exhaustive list to be provided. Examples include summons, requests, judgments, appeals, objections, etc.

3. Who is responsible for serving a document?

Documents are served by writ; service must therefore be effected by a bailiff.

Notification is effected by the clerk of the court (on rare occasions by the public prosecutor's office) by so called "gerechtsbrief" / "lettre judiciaire" (a special type of registered letter with acknowledgement of receipt), ordinary post or registered post. The rules governing "gerechtsbrieven" / "lettres judiciaires" are set out in Article 46 of the Judicial Code. When the Act of 20 October 2000 introducing the use of telecommunications and electronic signatures in court and out-of-court proceedings enters into force, notification will also be possible by fax or email.

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4. How is the document in practice normally served?

Documents are served (i.e. an identical copy, known as the writ, is handed by the bailiff to the person concerned) as stipulated in Article 32 of the Judicial Code. The article also states that if the person refuses to accept the copy, the bailiff must record this refusal on the original writ, in which case the document is deemed to have been served on that person.

Where legal persons are concerned (e.g. the State, a municipality, a limited company ("naamloze vennootschap" / "société anonyme") or a private company with limited liability ("besloten vennootschap met beperkte aansprakelijkheid" / "société de personnes à responsabilité limitée"), it is physically impossible to serve documents (i.e. hand over an identical copy). Article 34 of the Judicial Code resolves this problem by providing that documents are deemed to have been served where a copy is handed to the body or individual who, in accordance with the law, the articles of association or a valid order, represent the legal person in law, even on a joint basis.

As has already been noted, notification is effected by letter, registered letter or "gerechtsbrief" / "lettre judiciaire"; in future, notification by fax or email will also be possible.

5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?

If the document cannot be served on the addressee, Article 35 of the Judicial Code stipulates that it may be served at his/her residence or, where there is no residence, his/her domicile. For legal persons, documents are served to the registered office or administrative office.

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The concepts of "residence" and "domicile" are defined in Article 36 of the Judicial Code. Residence means the place in which the person is registered as having his/her main residence. Domicile refers to any other establishment, such as the person's office or company headquarters.

On whom are documents served in such cases? Article 35 of the Judicial Code states that a copy of the document should be handed to a relative, in-law, servant or employee of the addressee.

It may not, however, be handed to a child under the age of sixteen.

Article 44 of the Judicial Code indicates additional formalities for cases in which documents are not served on the addressee: the copy must be placed in a sealed envelope bearing the stamp of the bailiff's office at the point where the envelope is sealed, the addressee's name, first name and address and the words "Pro Justitia Dadelijk af te geven". Nothing else should be written on the envelope. The writ and copy indicate that all these formalities have been complied with. However, copies of writs addressed to several different individuals with the same residence or, failing that, the same domicile, should not be placed in a sealed envelope if they are remitted to one of the individuals concerned.

It may be that the document cannot be served either on the addressee or at the residence or domicile. For instance, it may be that the bailiff is unable to locate the addressee and that there is nobody at the residence or domicile on whom the document can be served (such as a relative or in law). Such situations are dealt with in Articles 37 (criminal cases) and 38 (other cases) of the Judicial Code.

Where the writ cannot be served pursuant to Article 35 in criminal cases, Article 37 states that the fact of handing a copy thereof in to the police station or, where no police superintendent is present, to the mayor, an alderman or a duly empowered official, constitutes service. The bailiff leaves a notice in a sealed envelope at the addressee's residence or, where there is no residence, at his/her domicile, stating that a writ has been issued and indicating where it can be collected.

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The head office, police station, mayor, alderman or duly empowered official take the necessary measures to ensure that the copy is remitted to the interested party as quickly as possible.

They must immediately inform the public prosecutor's office which requested service of the writ either of the date on which the copy of the writ was served on the addressee or one of the persons referred to Article 35, or the reason why it could not be served.

For that purpose, the bailiff prepares a form containing information on the competent judicial body, the date of the hearing or trial, the public prosecutor's office that has to be notified and the name and address of the person to whom the copy of the writ must be handed. He places this form in the envelope which he hands in to the head office or to the police superintendent, mayor, alderman or duly empowered official.

No charge is made for remitting the copy of the writ to the police superintendent, mayor, alderman or duly empowered official or for handing it to the addressee or to one of the individuals indicated in Article 35.

Where the writ cannot be served pursuant to Article 35 in cases other than criminal cases, Article 38 of the Judicial Code states that the fact of the bailiff's having left a copy thereof in a sealed envelope, indicating the information set out in Article 44(1), at the addressee's residence or, where there is no residence, at their domicile, constitutes service. The aforementioned information consists of the stamp of the bailiff's office affixed at the point where the envelope is sealed, the name, first name and address of the addressee and the words "Pro Justitia Dadelijk af te geven" / "Pro Justitia - A remettre d'urgence". Nothing else should be written on the envelope.

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On the original writ and the served copy the bailiff indicates the date, time and place on/at which the copy was left. No later than the first working day after the day on which the writ is served, the bailiff sends a letter bearing his signature by registered post to the addressee's residence or, where there is no residence, to their domicile. This letter indicates the date and time of the remittance and states that the addressee, either in person or represented by a proxy duly authorised in writing, can collect an identical copy of the writ from the bailiff's office, subject to a time limit of three months maximum from the date on which the writ was served. Where the addressee has indicated a change of residence, the registered letter referred to in the third paragraph is sent to the place where (s)he is registered as resident and to the new address. The letter indicates the bailiff's name, the address of his office, the opening times and the telephone number.

Where it is established that in practice it is physically impossible to effect service by leaving a copy of the writ at the addressee's residence or, where there is no residence, at his/her domicile, the fact of handing the copy to the public prosecutor competent for the relevant geographical area constitutes service. The circumstances requiring the writ to be served on the public prosecutor are noted on the original writ and on the copy. The same applies where the property at which the addressee is registered as resident has clearly been abandoned and the addressee has not taken steps to register at his/her new place of residence. At the request of the public prosecutor the necessary measures are taken to ensure that the copy is remitted to the addressee as quickly as possible.

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As regards service to addressees with a known residence or domicile abroad, three systems are used in Belgium: service/notification is governed by an EU regulation (see Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters), by treaty (e.g. the Hague Treaty of 15 November 1965, the Hague Conference on Private International Law) or by other arrangements. We are concerned only with the latter instance here.

Where no regulation or treaty applies, cases are dealt with by Article 40 of the Judicial Code, which states that the bailiff sends a copy of the writ by registered post to the residence or domicile abroad, by airmail if the destination is not in a neighbouring country. The writ is deemed to have been served by virtue of remittance to the post office with acknowledgement of receipt.

Pursuant to Article 55 of the Judicial Code, in principle the time limit for writs served abroad is extended by two weeks where the addressee is in a neighbouring country or the United Kingdom, by four weeks for another European country, and by eighty days elsewhere in the world. Exceptions are made for procedural steps by plaintiffs claiming damages in criminal cases.

6. Is there any written proof that the document has been served?

Article 43 of the Judicial Code states that persons to whom copies are handed must sign the original to acknowledge receipt. If they refuse to sign, the bailiff enters a note to that effect on the writ. In all cases, then, there is proof in writing that the document has been served. It is very difficult to challenge a bailiff's statement.

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Where notification is effected by registered post, obviously proof in writing will exist. Article 46 of the Judicial Code also provides for an acknowledgement of receipt where a "gerechtsbrief" / "lettre judiciaire" is used. Proof is kept on file.

7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)? Can the service of the document nevertheless be valid (e.g. can violations of the law be remedied) or must a new effort to serve the document be made?

In normal circumstances the risk of the addressee not receiving the writ is low, given that under Belgian law it is served on the person themself. In other words, the bailiff hands the copy to the addressee in person. However, the law also makes provision for the document to be served on a third party (Article 35 of the Judicial Code) or even for it to be simply left at an address (Article 38) in some instances. In such cases service is deemed fully valid even if the document has not been remitted to the addressee in person. Individuals who have taken receipt of a writ as per Article 35 and then failed to pass it on or to ensure that the addressee is informed may incur civil liability. These arrangements work very well in practice.

However, the possibility of the law being broken when a document is served or notified cannot be ruled out (e.g. failure to pass on particular items of information in the writ). Procedural penalties for these irregularities provide for court proceedings or documents to be declared null and void. The rules governing nullity are set out in Articles 860 to 867 of the Judicial Code.

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Article 860 states that court proceedings or documents can be declared null and void where provision is made in law for that penalty in cases of non compliance.

Under Article 861, however, judges can declare proceedings null and void only where the omissions or irregularities complained of have adversely affected the interests of the party claiming that the proceedings or document should be regarded as null and void.

However, the condition that the complainant's interests must have been adversely affected does not apply in the instances listed in Article 862(1), which states that Article 861 does not apply to omissions or irregularities with regard to:

  1. statutory time limits (under penalty of forfeiting rights/nullity);
  2. signing of the document;
  3. the date of the document where this is necessary to determine its consequences;
  4. instructions for the judge examining the case;
  5. the oath required of witnesses and experts;
  6. statements that the writs and deeds of execution were notified to the person in breach of the law.

In such cases the judge will declare that proceedings are null and void or that rights have been forfeited; this may even be done automatically ("ambtshalve nietigheid" / "nullité d'office", or automatic nullity). However, Article 862(2) of the Judicial Code indicates that the judge must take account of Article 867.

Article 867 states that omissions or irregularities in respect of procedural forms (including non compliance with statutory time limits under penalty of nullity) or notification of certain provisions do not give rise to nullity where procedural documents show either that the proceedings produced the result intended by the law or that due account was taken of the fact that the parties had not been notified of the provisions in question.

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Other requirements must also be met for nullity to apply but the doctrine of nullity cannot be fully explained within the context of service/notification.

Lastly, it should be noted that persons causing nullity may be held liable should it emerge that they were at fault.

8. Do I have to pay for the service of a document, and if so, how much?

Bailiffs receive payment for their work, the rates being governed by Articles 519 to 523 of the Judicial Code (see website of the federal justice department (Federale Overheidsdienst Justitie Nederlands, Rechtsbronnen -> geconsolideerde wetgeving: juridische aard = gerechtelijk wetboek, woord(en) = 519; click on Opzoeking, Lijst and Detail to access contents; OR Service public fédéral Justice Français under Sources de droit -> législation consolidée: nature juridique = code judiciaire, mot(s) = 519; click on Recherche, Liste and Détail to access contents) The actual rates of pay are set out in the Royal Decree of 30 November 1976 establishing the rates for bailiff services in civil and commercial cases and the rates for certain allowances (Koninklijk Besluit van 30 november 1976 tot vaststelling van het tarief voor akten van gerechtsdeurwaarders in burgerlijke en handelszaken en van het tarief van sommige toelagen; see website of the federal justice department / Arrêté royal du 30 novembre 1976 fixant le tarif des actes accomplis par les huissiers de justice en matière civile et commerciale ainsi que celui de certaines allocations (Federale Overheidsdienst Justitie Nederlands, Rechtsbronnen -> geconsolideerde wetgeving: juridische aard = koninklijk besluit, afkondigingsdatum = van 1976 11 30 tot (leave blank); click on Opzoeking, Lijst and Detail to access contents; OR Service public fédéral Justice Français under Sources de droit -> législation consolidée: nature juridique = arrêté royal, date de promulgation = de 1976 11 30 à (leave blank); click on Recherche, Liste and Détail to access contents).

Further information

  • Federale Overheidsdienst Justitie Nederlands

    • Judicial Code, Article 32 et seq.: in Rechtsbronnen -> geconsolideerde wetgeving: juridische aard = gerechtelijk wetboek, woord(en) = eerste deel algemene beginselen; click on Opzoeking, Lijst and Detail to access contents.

    • Judicial Code, Articles 519 to 523: in Rechtsbronnen -> geconsolideerde wetgeving: juridische aard = gerechtelijk wetboek, woord(en) = 519; click on Opzoeking, Lijst and Detail to access contents.

    • Royal Decree of 30 November 1976 establishing the rates for bailiff services in civil and commercial cases and the rates for certain allowances: in Rechtsbronnen -> geconsolideerde wetgeving: juridische aard = koninklijk besluit, afkondigingsdatum = from 1976 11 30 to (leave blank);

  • Service public fédéral Justice Français

    • Judicial Code, Article 32 et seq.: in Sources de droit -> législation consolidée: nature juridique = code judiciaire, mot(s) = principes généraux; click on Recherche, Liste and Détail to access contents

    • Judicial Code, Articles 519 to 523: in Sources de droit -> législation consolidée: nature juridique = code judiciaire, mot(s) = 519; click on Recherche, Liste and Détail to access contents; click on Recherche, Liste and Détail to access contents

    • Royal Decree of 30 November 1976 establishing the rates for bailiff services in civil and commercial cases and the rates for certain allowances: in Sources de droit -> législation consolidée: nature juridique = arrêté royal, date de promulgation = de 1976 11 30 à (leave blank)

  • De Nationale Kamer van Gerechtsdeurwaarders van België Nederlands / Chambre Nationale des Huissiers de Justice de Belgique Français (national association of bailiffs);

  • Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters;

  • the Hague Treaty of 15 November 1965, the Hague Conference on Private International Law.

« Service of documents - General information | Belgium - General information »

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Last update: 01-08-2007

 
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