Exploring the Complexity of Cross-Border Judicial Procedures: The Case of the Service of Documents

Developing an efficient framework for cross-border judicial cooperation in civil matter is not only necessary for the proper functioning of the internal market. It is all the more crucial as it impacts on how citizens perceive the functioning of the judiciary and the rule of law. This entails ensuring the smooth cross-border service of judicial and extrajudicial documents in civil and commercial matters, while safeguarding both a high level of security in the transmission of legal documents as well as the rights of the addressee. This legislation has a real impact on the everyday lives of EU citizens, especially in a borderless legal space such as the EU, since it is essential to guaranteeing access to justice and fair trials. Suffice it to consider that the proper service of a claim is a necessary step for starting proceeding and, above all, an essential requirement for the genuine exercise of the rights of defence. For this reason, over years the relevant EU legal framework has been remodelled, so as to replace the traditional channel of transmission of documents with smoother solutions to assist cross-border judicial proceedings. Recent evaluations, however, have revealed that the EU workflow is underperforming. Gaps under the current regime lead to delays and costs for citizens, businesses and public administrations as well as to shortcomings in the protection of procedural rights, legal complexity and uncertainty. Along with this, even if the relevant legislation adopts a ‘technology-neutral’ language, IT solutions are still underused. Although technology is often perceived as a simple tool, which follows linear processes of implementation, reality appears to be more complex, due to legal obstacles, lack of interoperability of the national IT systems or simply because it is hard for practitioners to step out from old patterns. Against this background, the purpose of this paper is showing how analysing the gaps between the regulation as it is outlined on the book and that which is applied by practitioners may help providing a better understanding of the complexity of modelling such systems in a supranational environment. Transnational cooperation is the result of local interactions, based on local understandings and (often diverging) legal interpretations, as well as on stark knowledge asymmetries. To achieve this goal, the legal analysis of the European provisions adopted to simplify, speed up and reduce the costs of cross-border service of documents is carried out and complemented with the findings of an exploratory empirical research aimed at investigating the concrete use and usability of these rules in Italy. The latter has relied on a quantitative and qualitative analysis based on both a data collection exercise carried out through an online survey and semi-structured interviews to a selected group of experts. The results of the desk analysis combined with the empirical findings aim at providing a clearer picture of the real-life interactions and needs of stakeholders involved in cross-border proceedings regarding service of documents and possibly suggesting solutions on how to address them.