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Simple service (section 136 of the Code of Civil Procedure) is an act whereby the court registry informs the parties or other persons involved in a court case (prosecution service, experts and other auxiliaries, witnesses) that specified facts relevant to the case have been ascertained.
Simple service, therefore, serves an information function and has no effect in terms of starting time-limits for stages of the procedure, except in the rare cases provided for by the law (e.g. service of judgment for the purposes of launching the time-limit for bringing an appeal).
Formal notification, on the other hand, is an act whereby a bailiff, acting on application by a party, the prosecution service or the court registry, acquaints the addressee with another document of which he is given a certified copy of the original. The object of the exercise is that the addressee should be aware of the document.
The different purposes served justify the use of different procedures for service of documents (cf. sections 136 – 151 of the Code of Civil Procedure)
Simple service is carried out in cases where it is provided for by statute or ordered by the court (e.g. the law provides for simple service of orders issued by the judge in chambers, under section 176 of the Code of Civil Procedure, and orders deferring proceedings where the parties fail to appear, under section 181 of the Code of Civil Procedure).
Formal notification is carried out in cases where it is provided for by statute for the purposes of attaining specific procedural results. It covers formal court documents (e.g. judgment where only a short period is allowed for an appeal), court registry documents (registrar’s notification), documents emanating from parties to a case (e.g. writs of summons), and documents issued by the prosecution service (e.g. appeals).
Simple service is carried out exclusively by the court registry.
Formal notification of documents is effected by court bailiffs acting in accordance with precise rules of territorial jurisdiction (cf. Act 1959/1229).
By Act 1994/53 the power to effect formal notification, previously enjoyed exclusively by bailiffs, was extended to advocates, for all documents in civil, administrative and non-judicial matters.
For that purpose the lawyer must be entered in the register of advocates, hold a power of attorney, be licensed by the council of the bar at which he practises and hold a registration certificate valid for the period in question.
The lawyer can effect formal notification by means of direct delivery after authentification of the document by the local bar council, provided the addressee is another advocate registered in the same local bar as the lawyer effecting service.
Notification can also be effected by post (the most commonly used form), in accordance with the rules laid down by Act 1982/890, except where the judicial authority orders personal service.
Simple service is made with a “registry note” in two parts, one of which is kept by the addressee and the other is filed at the registry.
The document may be served in one of the two forms provided for by statute: direct personal delivery to the addressee, who signs a receipt form, or by a bailiff. In the latter case, service may be made either personally or by post.
Act 2005/80 (ratifying Legislative Decree 35 of 14 March 2005) amended various provisions of the Code of Civil Procedure (sections 133, 134 and 176), so that the registry can now serve notices of cases brought, judgments given, orders made by the court outside the formal hearings and all decisions by the examining judge by fax or e-mail, subject to the legislation governing the signing, transmission and reception of documents by computer or remote communication technologies (Presidential Decree 2000/445, as amended). For that purpose the defence lawyer must state in the first document registered for the purposes of the case at what fax number or e-mail address he wishes to receive notification.
Presidential Decree 2001/123 provides in general terms for the use of computerised technologies for communication (and service) of documents in civil proceedings.
Formal notification is effected on application by a party or at the request of the prosecution service; where a party is legally represented, the application must be made by the representative.
Formal notification always consists of delivery of a certified copy of the original, and there are two basic modes of delivery: 1) direct personal service, and 2) service by post, except where the judicial authority or the requesting party demands personal service. Specific forms can be ordered by the court in specific cases (e.g. the telegraph); service by public announcement may also be ordered if there are major difficulties with the more conventional modes of service on account of the number of addressees.
Personal service is carried out at the times of day specified in section 147 of the Code of Civil Procedure by handing a certified copy of the original to the addressee, and the bailiff effecting service records the fact by endorsing the original and the copy.
Service by post is carried out by sending a registered letter with advice of delivery in accordance with Act 1982/890.
Presidential Decree 2001/123 provides for electronic transmission as a means of effecting service (request for service, carrying out of service, presentation by the bailiff to the party of the signed document as served, with delivery receipt signed electronically); but the bailiff may still serve the document in the conventional way if there are difficulties with electronic transmission.
Telecommunication techniques may be used for the transmission of procedural documents between advocates for the same party, provided they have the power of attorney and all the other requirements of Act 1993/183 are met.
Company cases. In cases concerning companies and financial intermediaries, including banks and credit institutions, service can always be made not only by the conventional means under sections 136 et. seq. of the Code of Civil Procedure but also:
Transmission by fax or e-mail must comply with the legislation on the signing and transmission of computerised documents transmitted electronically (see Legislative Decree 2004/5).
The Constitutional Court has given judgment in a case concerning this question (Case 346 of 1998), where it held that section 8 of Act 1982/90 was unconstitutional is so far as it provided that the document was to be returned to sender after ten days had elapsed following the date of deposit and that service was deemed to have been effected at that point.
Once he has entered an appearance in the case the prosecutor is the addressee for service of all documents; the judgment must also be served on the prosecutor for the purpose of launching time-limits for appeals (sections 170 and 285 of the Code of Civil Procedure).
In the case of formal notification by personal delivery, the bailiff must make a documentary record of his activity by endorsing the original and the copy of the relevant document with an indication of the manner and place in which service was effected (person and status), the time, refusal (if any) to accept service of the copy or to sign the original, the researches undertaken, grounds for failure to serve and information gathered on location of the addressee.
In the event of service by post, documentary evidence of service is further provided by the bailiff’s report and by the receipt returned with the endorsement by the post office that made the delivery.
The bailiff’s report is an official document, and it is an authentic record, unless proved to be a forgery, of the inquiries made, the facts that occurred in the bailiff’s presence and the statements made to him; it constitutes authentic evidence subject to proof to the contrary of other circumstances that he did not ascertain personally (e.g. the status of family member or domestic staff of the person who accepted service).
As regards service by electronic communications, the bailiff returns the document served by the same technique, accompanied by a receipt authenticated by his electronic signature.
In simple service, evidence is given by the receipt signed by the addressee or the bailiff’s report, together with the receipt for the registered letter in the event of service by post.
For service by electronic techniques or e-mail, evidence is given by the delivery receipt with computer-recorded electronic signature.
The effectiveness of service flows from the fact that the copy is handed over in due form (principle of reception or knowledge in accordance with the law); the fact that the addressee has actually been acquainted with the content of the document or was acquainted with it in some other way or by some other procedure is therefore quite irrelevant.
Formal notification has not taken place if the document is not delivered to the addressee or is delivered to a place or person that is unrelated to the addressee.
It is null and void if statutory provisions concerning the person to whom the copy is to be handed over are not complied with, if there is real uncertainty as to the person to whom or the date on which it was handed over or if the provisions governing the bailiff’s powers have been violated.
The distinction is important, because only a notification that is null and void rather than one which is non-existent for legal or practical reasons can be remedied.
Nullity of a notification can be remedied with ab initio effect if a repeated attempt is successful or if the object pursued is attained anyway. For example, if the addressee enters an appearance to defend his case, the nullity of notification of the writ is automatically remedied.
Simple service can also be non-existent or null and void. The courts have held that there was no valid service when judicial documents were communicated to one of the parties by delivery of a registry document to a person not duly empowered to receive it by the party’s legal representative.
If the registry avails itself of the bailiff’s services to deliver a document, any nullity of notification renders the communication null and void. Communications can be validly effected in equivalent forms, provided they actually come from the registry and it is visibly clear that the document was delivered to the addressee and on what date.
Parties who request formal notification must pay the bailiff, in advance, the charges and costs of delivering or carrying the documents to be served (Consolidated Act 2002/115 on costs in legal proceedings).
The charges are payable on the scales provided for by statute and vary with the number of addressees (from €2.58 for two addressees to €12.39 for a further six addressees).
Carriage costs are payable on the scales provided for by statute and vary on a progressive scale with the distance in kilometres to be covered; the rates are modest (for distances of more than 18 km the cost is €3.06, plus €0.65 per additional 6 km or fraction of at least 3 km). The charges and carriage costs are raised by a half for urgent documents for same-day or next-day delivery.
For formal notification requested by the judicial authorities (meaning the prosecution service or the court registry), the first party who commences the proceedings must pay in advance the carriage and delivery charges at a standard rate determined by the table in Annex 1 to Consolidated Act 2002/115 (€2.46 for all cases, with a few exceptions; but the difference is then only a few euros).
There are no specific charges for simple service effected direct by the court registry by sending the registry document to the addressee or his legal representative.
If the party is eligible for legal aid, the bailiff’s charges and carriage costs and all costs of service are payable in advance by the Treasury or debited to it.
For employment, welfare and social security disputes, there is an exemption from all charges and costs for acts done by the bailiff (section 10 of Act 1973/533 and sections 30 and 32 of Consolidated Act 2002/115). There is a similar exemption in cases concerning the adoption of minors (Act 1983/184).Top
Last update: 26-06-2006