I say all the time that we aren’t building rockets here. But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination. Serving process in France is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas. Repeat after me—you can’t just SERVE a subpoena in France. At least, not if you want it to actually work. Instead, you have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Here’s how it’s done in France:
Article 5 Service
- Translate the documents. France’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- In the “Checkboxes” section of page 1, choose a methodology. By checking Box (a), you will assent to service by a police officer, directed by the defendant’s local public prosecutor. If you prefer (as I do) that the Central Authority forward the request to a huissier de justice* for the act of service, select Box (b)– and remember to remit the appropriate fee (€48.75 at this writing).
- Send your package to the Authority. All documents duplicated.
- Sit tight. It may take a while—likely 3-5 months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, depending on forum rules, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
- France also allows direct access to a huissier de justice, the judicial officer who serves process in French actions and Article 5 requests. This method avoids having to wait for processing by the Central Authority, often cutting wait time by 2-3 months, but finding a huissier without speaking French can be a challenge, and even then, finding a bailiff who is cognizant of the Convention may also be tough.
France’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* The huissier is a specialized professional in the civil law system. A qualified lawyer, whose practice is limited to procedural matters on behalf of the court, the huissier not only serves process, but is also tasked with executing judgments. For a rough analog in common law systems, imagine a combination of bailiff and sheriff, but with the same level of training as a practicing attorney. The huissier’s counterpart in Dutch-speaking jurisdictions: the gerechtsdeurwaarder. In German-speaking areas: the deurwaarder (although, to be sure, this won’t help much, as Germany, Switzerland, and Austria all prohibit access to judicial officers for service requests).
[Author’s note: I spent the spring semester of 1992 in Caen, Normandy, and got to return last fall on a short day-trip to the D-Day invasion zone during a CLE group tour in Paris. By the way, if you need CLE hours, holy socks, Batman. Get them in Europe and justify the trip as a business expense. You might even get to hear me lecture on the very topic of this column. Next iteration of the program: November, 2018.]