UPC: When is attempted service good service?

In two recent decisions issued by the Munich Local Division of the UPC (UPC_CFI_508/2023, UPC_CFI_509/2023), judge-rapporteur Pichlmaier found that unsuccessful attempts to serve application documents for a preliminary injunction on the defendant can constitute good service. After the initial filing of an application for interim measures, service on the defendant domiciled in China was arranged according to the Hague Service Convention, which provides an option for service outside UPC Member States according to Rule 274.1 RoP. Although the receipt of the service documents by the competent Chinese authority was confirmed by the postal tracking number, the UPC’s registry received no reply regarding the status of service despite multiple inquiries to this effect. Further, the consent of the recipient required under Chinese law for electronic service could not be obtained as inquiries regarding the possibility of service by email had also remained unanswered. Accordingly, the Applicant requested that the steps already taken to deliver the documents via electronic and postal means should instead constitute good service.

Under Article 15 of the Hague Service Convention, a Contracting State shall be free to declare that the judge may pass judgment even in the absence of a certificate of service if:

• the document was transmitted by one of the methods provided for in the Convention;
• a period of time of not less than six months has elapsed since the date of transmission of the document; and
• no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

The Court found all three of these criteria to be fulfilled in this case. Further, under Rule 275.1 RoP, if service by standard means is unsuccessful, an attempt must be made to effect service by an alternative method or at an alternative place. However, it was found that neither service by an alternative means, nor at an alternative place, was possible in this instance. In particular, given that the Applicant had already unsuccessfully attempted service by both formal means (post) and informal means (email), no other alternative means were apparent and no alternative place was known. The likelihood of further delay caused by any alternative service was also found to be unreasonable in view of the urgency of an application for preliminary measures.

The JR therefore turned to Rule 275.2 RoP, which states that the Court can order, on request by the claimant, that steps already taken to effect service by an alternative method or at an alternative place constitute good service. However, as indicated above, such alternative methods or alternative places were not known, and an exception to the requirement of alternative service under Rule 275.2 RoP is not provided for. Further, there is no express legal basis in the Rules of Procedure that enables the Court to approve good service after an attempt at formal service by the Hague Service Convention had failed. Thus, in arriving at the decision, the Court identified an unintended “gap” in the UPC Rules of Procedure for claimants finding themselves in such a scenario.

As such, it was held that if attempted service by the Hague Service Convention had failed under Rule 274 RoP, and service by an alternative method or at an alternative means is neither possible nor reasonable, then the Court may order that the unsuccessful attempt at service under Rule 274 RoP shall constitute good service. Thus, the steps already taken in this case to serve the request for preliminary injunction on the Defendant were held to constitute good service.