Alternative means of service can only work following an earlier attempt of service

In an order dated 29 July 2024 (UPC_CoA_69/2024 and UPC_CoA_70/2024), the UPC Court of Appeal has confirmed that an attempt to serve a Statement of Claim pursuant to Rule 274.1(a) Rules of Procedure (RoP) shall normally be made before service by other means or by alternative methods or at an alternative place (Rules 274.1(b) and 275 RoP) is permitted. In doing so, the Court of Appeal upheld the decisions of the Munich Local Division (ORD_6237/2024 and ORD_6607/2024) in UPC_CFI_498/2023 (NEC Corporation v. TCL, TCT) regarding service to defendants domiciled in China and Hong Kong.

The Court of First Instance at the Munich Local Division held that, “an actual ("real") but unsuccessful attempt of service is always required until RoP 275.1 becomes applicable. In view of the wording of R.275.1 RoP, it is not sufficient that service presumptively is not possible (i.e. cannot be effected) because of known deficiencies of service according to the Hague Convention in certain countries, so alternative service was held to be not allowed “at this point of time””.

In their submissions before the Court of Appeal, NEC had argued that it was factually impossible to serve judicial documents in China and Hong Kong based on findings of two German national courts, the Munich District Court and Munich Appellate Court. This reasoning was dismissed by the court, stating that “the UPC has its own service provisions, next to Regulation 2020/1784 and the Hague Convention. National laws of a Contracting Member State do not take primacy. There is no reason why the UPC should follow the practice of some German courts as suggested by NEC, since the UPC has its own procedural rules and furthermore the practice of some German courts does not create a precedent.”

This may be an indication that attempting to circumvent UPC court procedures on the basis of national laws and procedures at least concerning service of documents and most likely even broader concepts than that, is unlikely to be an effective strategy at the UPC. This is despite the frustrations that litigants will undoubtedly be facing when dealing with the UPC’s approach to serving documents which appears to be beyond litigants’ control.