I say all the time that we aren’t building rockets here. But we are building an airship of sorts, and if you use the wrong kind of stuff to make it go up, bad things happen. Do it the right way, and your journey is smooth. Serving process in Germany is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.
You’ve got three ways to go:
- Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
- Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
- If you’re feeling froggy & would like to handle the whole thing yourself, keep reading. This lays out the framework you’ll need.
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 frequently help with subpoenas. Repeat after me—you can’t just SERVE a subpoena in Germany. At least, not if you want it to have much effect. Instead, file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, here’s how service is effected in Germany:
Article 5 Service
- Translate the documents. Germany’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.
- Send to the appropriate Central Authority. This can be a bit tricky, as the Germans have decentralized their Central Authority function (yes, that is counterintuitive).
- Sit tight. It may take a while—likely 2-4 months from submission to return of proof.
Article 10 alternative methods
- They simply aren’t available, because Germany objects to them all. Article 5 is the only way it can be done.
Seriously—that’s all there is to it in Germany. The method is straightforward and simple. The real trick is in identifying the correct Central Authority, and that isn’t too tough with Wikipedia and Google Maps at your fingertips.
Germany’s declarations and Central Authority information can be found here.
Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service. Note that I didn’t say accept— I said waive. There’s a very important difference.
Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* If “informal delivery” is requested pursuant to Article 5(b), translation can be omitted– but informal delivery isn’t a common law concept. It is a term of art in civil law systems, and it depends on voluntary acceptance by the defendant… and if they’re willing to accept, why wouldn’t they just waive in the first place?
An important note: IF YOU ARE IN A SPLIT-RECOVERY JURISDICTION (including federal venue in split-recovery states), your Hague Service Request may be rejected by some German states if you do not expressly waive punitive damages. See here for more details.