Service of documents - Germany

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?  2. Which documents need to be served formally?  3. Who is responsible for serving a document?  4. How is a document normally served in practice?  5. What happens when in exceptional cases service on the addressee himself is not possible (e.g. because he is not at home)?  6. Is there any written proof that the document has been served?  7. What happens if the addressee does not receive the document that is supposed to be served on him or if service is not effected in the form prescribed by law (e.g. the document is served on a third party)?  8. Do I have to pay for the service of a document, and if so, how much?

 

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

"Service" means the notification of written statements and decisions that must be effected and certified in statutory form. Notification means making it possible to take note. Service assists guaranteeing due process and in ensuring a fair procedure.

Service is intended to guarantee that the addressee does in fact become aware of a procedural step, or at least to make it possible to acquire knowledge without any impediment. The purpose of serving any document is therefore to give notice of its content. Actually taking note of it is left up to the addressee.

It must be made possible for the party arranging service to prove the date when a document is delivered to the addressee and the manner in which it is done. This is a requirement for the sake of legal certainty.

2. Which documents need to be served formally?

There is no conclusive statutory provision as to which specific documents must be served formally.

Documents must automatically be served where service thereof has been prescribed by statute or ordered by the court (Section 166(2) of the German Rules of Civil Procedure - Zivilprozessordnung - ZPO).

Service at the instigation of the parties takes place where such service is prescribed by statute as in the case of an arrest, an interim injunction or an attachment and transfer order (Section 191 ZPO).

Formal service is necessary whenever it is expedient and whenever it is required by the need for legal certainty, for example because it is only the fact of notification which establishes rights or starts time periods running. Service of writs or court judgments and orders which can be challenged by an immediate appeal are therefore examples of documents which must, by statute, be served.

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3. Who is responsible for serving a document?

A distinction must be made between official service and service at the instigation of the parties.

In the case of official service, service is effected in principle by the registrar of the court office of the court where the proceedings are already and still pending (Section 168(1) ZPO). The registrar can select the method of service in accordance with his proper discretion.

The following possibilities are available to him:

• He may for example effect service on an attorney at law in exchange for an acknowledgement of receipt (Section 174 ZPO).
• He can effect service on the addressee of the document or his lawful representative himself by sending the document to the official department (Section 173 ZPO).
• He may instruct the post office to carry out service, as a subcontracting company. He may at this time, as a special subgroup, select service by recorded delivery with acknowledgement of receipt (Section 175 ZPO).
• He can instruct a court official to effect service.

In a number of statutorily prescribed cases, the judge is responsible for arranging service, for example in the case of service abroad (Sections 183, 184) or in the case of public service (Sections 186, 187).

Service at the instigation of the parties takes place in principle through the court bailiff. He is either instructed directly by the party or by arrangement with the court office of the court dealing with procedural matters (Section 192).

For his part, the court bailiff may instruct the post office to effect service (Section 194).

4. How is a document normally served in practice?

The type of service which occurs most frequently in practice is official service. It is normally carried out through the post office.

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For this purpose, the registrar instructs the post office to effect service and hands over the document which is to be served, in a sealed envelope and with a prepared service certificate form (Section 176 ZPO). The post office employee then effects service. Priority is given to service directly on the addressee of the document, in other words the document must be handed to the addressee personally. This delivery can take place anywhere and is not linked to any specific place (Section 177 ZPO).

The addressee, for the above purpose, is the person for whom the document is intended, his legal representative (Section 170 ZPO) or his authorised representative (Section 171 ZPO).

After effecting service, the post office employee fills in the service certificate form and sends it back immediately to the court office of the court as proof of service.

If the party is represented by a lawyer, service is normally effected on the lawyer in exchange for an acknowledgement of receipt (Sections 171, 174 ZPO). After receiving the document, the lawyer sends the acknowledgement of receipt back to the court, signed by him.

If both parties are represented by lawyers, service can be effected between one lawyer and another (Section 195 ZPO). This also applies to documents which are to be officially served, unless the opponent is to be notified at the same time of a court order. The document must contain the declaration that lawyer-to-lawyer service is being effected. In this case also, the dated and signed acknowledgement of receipt constitutes proof of service.

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

When direct service on the addressee is impossible, "substitute service" can be effected.

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5.1.

The first possibility is substitute service at the residence, in business premises and institutions (Section 178 ZPO). According to this, substitute service can be effected if the person who is to be served is not encountered at his residence, in the business premises or in a communal institution where he lives.

Substitute service is effected by delivering the document to one of the following persons:

• an adult family member, a person employed in the family or an adult permanent joint resident at the addressee's residence.
• at the addressee's business premises, to a person employed there.
• in institutions, either the manager or a representative authorised for the purpose.

However, substitute service cannot be effected on the abovementioned persons if they are involved in the proceedings as opponents of the person who is to be served.

5.2.

If it has not been possible to effect substitute service at the residence or in the business premises, substitute service can take place by putting the documents in the letterbox (Section 180 ZPO). The document must then be put in the letterbox belonging to the residence or to the business premises.

5.3.

If substitute service in the institution where the addressee lives or substitute service by putting the document in the letterbox is not possible, substitute service may be effected by depositing the document which is to be served (Section 181 ZPO).

The document can be deposited either at the court office of the district court in whose jurisdiction the location of the service is situated or, if the post office is instructed to effect service, at a place in the location of the service which is specified by the post office.

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The addressee must be given written notification about the depositing of the documents, in the manner which is usual for ordinary letters. If this is not possible, the notice must be attached to the door of the residence, the business premises or the institution.

The deposited document must be available for collection for three months and then returned to the sender if it has not been collected.

5.4.

If the addressee is at home but refuses to accept the document, a distinction must be made between the following situations:

• If it is legitimate to refuse to accept the document, service must be effected validly once again. Refusal is legitimate for example where an address is incorrect or the addressee is imprecisely indicated.
• Where it is not legitimate to refuse to accept the document, it must be left behind at the residence or in the business premises. If the addressee has no residence or business premises, it must be returned to the sender (Section 179 ZPO)

The substitute service becomes valid when it is carried out: the service is fictitious. The document is thus deemed to have been served when the written statement is given. It is thus immaterial whether the addressee actually receives the document. It is also immaterial whether he becomes aware of the existence of the document at all.

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

Yes. A certificate must be prepared on the form provided for this purpose and must be returned without delay to the court office (Section 182 ZPO) in order to prove service. This certificate contains all the details necessary to prove service, in particular:

• the details of the person who is to be served,
• the details of the person to whom the document has been delivered,
• the place, date and also, where ordered by the court, the time of the service,
• full name and signature of the person effecting service and, if applicable, details of the instructed company or of the public authority requested to effect service.

If service is effected at the instigation of the parties, the certificate of service must be sent to the party on whose behalf service has been effected (Section 193(3) ZPO).

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A number of special features apply in cases of substitute service: in these cases, the reason for the substitute service must always also be included in the certificate. If substitute service is effected by deposition, the manner in which written notification of the deposition has been given must be noted in the certificate. If acceptance of the document has been illegitimately refused, it must be noted in the certificate who refused acceptance and whether the letter has been left behind at the place of service or returned to the sender.

No certificate of service is necessary as proof in certain cases prescribed by statute:

• In the event of service by delivery to the official department of the court, a note, to be made in the files and on the document, that service has been effected constitutes proof of service (Section 173, second sentence, ZPO).
• If service is effected on a lawyer, an acknowledgement of receipt by the lawyer is sufficient as proof (Section 174(1) and (4) ZPO).
• If service is effected by recorded delivery letter with acknowledgement of receipt, the acknowledgement of receipt is sufficient as proof (Section 175, second sentence, ZPO).
• The same applies if service is effected abroad by recorded delivery with acknowledgement of receipt (Section 183(1) (1), Section 183(2), first sentence, ZPO).
• If service is effected abroad with the assistance of the public authorities of the foreign country or the consular representation of the German Federal Government or Foreign Office, service is proved by a certificate from the public authority requested to assist (Section 183(1) (2), (3), Section 183(2), second sentence, ZPO).

7. What happens if the addressee does not receive the document that is supposed to be served on him or if service is not effected in the form prescribed by law (e.g. the document is served on a third party)?

7.1.

Service effected otherwise than in the form prescribed by statute is invalid in principle, if important provisions have been infringed.

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The law admits exceptions to this principle which take account of the purpose of service, namely the provision of proof of whether and when the recipient of service has received the document that was to be served.

Any remedying of the legal infringement is conditional upon the document actually having reached the addressee. If this is the case, it is deemed to have been served at that time (Section 189 ZPO).

The breach of the service provisions is remedied retroactively and is not within the court's discretion. The remedying effect occurs even if the service sets in motion a statutory period, i.e. a period which cannot be amended.

7.2.

If the addressee does not receive the document that is to be served, a distinction must be made:

• If service is effected in breach of substantial provisions, the remedying possibility ceases to apply. The service is thus invalid and must be effected once again.
• If the service has been effected in compliance with the statutory provisions, notification is deemed to have been given. This arises from the provisions on substitute service. Non‑culpable lack of knowledge of the service, however, allows reinstatement to the previous position pursuant to Sections 230 et seq. ZPO.

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

A distinction must be made between official service and service at the instigation of the parties.

In the event of official service, the full postal charges are applied in principle in respect of service with certificate of service or recorded delivery with acknowledgement of receipt. In the case of service by court officials, the fee is set at €7.50 per service in place of the actual expenditure.

Service at the instigation of the parties is effected by the court bailiff. The court bailiff charges a fee of €2.50 for arranging service by post. The disbursements arising for making necessary copies and for postal charges are in addition to this. If it is necessary for a document delivered to the court bailiff for the purposes of service to be certified, a separate flat rate document fee is incurred. For the first fifty pages, this is €0.50 per page, and it is €0.15 for each subsequent page.

If service is effected by the court bailiff in person, the fee is €7.50. In this case, the bailiff must also be paid travelling expenses of between €2.50 and €10.00, depending on the distance to be covered in order to reach the addressee.

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Last update: 15-06-2006