Germany allows service of claims on Chinese respondents by publication

According to the German Federal Statistical Office, the People’s Republic of China (PRC) is Germany‘s second most important trading partner after the US. These close economic relations naturally involve disputes that may need to be resolved in court. Up to now, however, the service of a writ in the PRC has been fraught with practical problems. Since the service of writs in the PRC takes years or is even impossible, the question of an effective service of writs on Chinese defendants is an important factor in ensuring effective legal protection by German courts.

The Regional Court of Frankfurt am Main has approved service by publication of a writ on an addressee in China through its decision in case No. 2-06 O 426/24 on January 15 2025, thus confirming two preceding Munich rulings. Accordingly, service is possible by merely displaying the writ at the local German court, without the need to prove that an (unsuccessful) attempt at service in the PRC has been made. In such a case, in accordance with Section 188 of the Code of Civil Procedure (Zivilprozessordnung, or ZPO), service is deemed to take effect one month after notification.

This article examines the legal framework and the case law of German courts on public notification in cases related to the PRC. The practice of the Unified Patent Court (UPC) will also be discussed. It becomes apparent that the Unified Patent Court (UPC) does not follow the pragmatic approach of German courts, which is regrettable given the importance of the time element in patent disputes.

In Germany, international service of documents is governed by Section 183 of the ZPO, unless union law or international agreements take precedence. Pursuant to Section 183(2) of the ZPO, service is effected in accordance with the Hague Service Convention (HSC). Requests are to be addressed to the International Legal Cooperation Centre of the Chinese Ministry of Justice, which will arrange for service in accordance with Chinese procedural law or in a permissible form requested by the requesting party (Article 5, HSC). However, postal service is excluded, after the PRC lodged an objection pursuant to Article 21 of the HSC.

In practice, this procedure encounters significant obstacles. Service of documents according to the Hague procedure often takes an excessive amount of time because the HSC does not stipulate any deadlines. Statements from the official Chinese side regarding a processing time of six months have proven to be inaccurate. Although the HSC theoretically allows for the possibility of effecting service abroad, in practice, German courts have found that the Chinese authorities do not apply the HSC in a legally compliant manner, particularly in patent matters. Also, the German Federal Foreign Office reports “significant delays” in this regard.

In view of the practical problems of serving documents in the PRC, the option of service by publication, in accordance with Section 185(3) of the ZPO, appears to be a sensible alternative for safeguarding due process. Under this provision, service can be effected by publishing a notice (service by publication) if service abroad is not possible or is unlikely to be successful. German courts recognise that service has no prospect of success if it takes so long that the party concerned cannot reasonably be expected to wait any longer. In this context, the Higher Regional Court of Munich ruled in a case in which service was to be effected in the PRC that the creditor‘s interest in effective legal protection predominates if service takes at least 18 months or goes unprocessed.

To ensure legal protection for the party effecting service of documents, German courts now allow service to be effected by displaying the writ on the bulletin board, using the legal fiction of sections 185(3) and 188 of the ZPO. However, this requires that the addressee be notified, at least informally, of the service by publication via established electronic communication channels.

At the beginning of the year, the Regional Court of Frankfurt am Main confirmed the above practice. The facts of the case were as follows. A German mobile phone manufacturer filed a lawsuit against a Chinese patent holder that had undertaken to grant licences on fair terms. Service would normally have to be effected through legal channels, in accordance with Section 183(2), sentence 1 of the ZPO in conjunction with the HSC. However, the court considered this to be futile and immediately ordered service by publication, in accordance with sections 185(3) and 186 of the ZPO.

In its reasoning, the court referred to the principle of effective due process (as mentioned, service is deemed unsuccessful if it takes so long that the plaintiff cannot reasonably be expected to wait any longer). It also recognised the threat to the right to be heard and emphasised the necessity of weighing this up in each case.

In the case in dispute, the plaintiff stated that service of legal documents in the PRC often fails or typically takes more than a year. The Regional Court of Frankfurt am Main and other German courts also confirmed such delays, based on experience. As per established case law, the Regional Court of Frankfurt am Main also required the plaintiff in this case to informally notify the defendant of the action.

In patent disputes, service of documents abroad plays a crucial role, especially in the PRC. The UPC Rules of Procedure currently govern patent litigation proceedings for 18 EU member states. Service in third countries, such as the PRC, is carried out in accordance with its Rule 274.1, in accordance with the HSC. If service is unsuccessful, the court may order alternative procedures, in accordance with Rule 275.1 of the UPC Rules of Procedure, but only after there has been a failed attempt at service.

In NEC Corporation v TCL Industrial Holdings Co., Ltd. et al., NEC requested electronic service or service by publication, since service in the PRC was practically impossible. The applicant also referred to the above-mentioned case law of the Munich court. Nevertheless, the UPC rejected the request for service in the first instance and upon appeal, referring to the necessity of a prior attempt at service under the HSC. In particular, the UPC held, German case law is not binding for the UPC, since the court has its own rules regarding service.

The UPC thus pursues a formalistic approach, which, despite the legal principle on expedited proceedings in the Agreement on a Unified Patent Court, accepts long delays. Still, the Mannheim Local Division of the UPC takes a pragmatic approach: if the service abroad ultimately fails, the court may, upon request, order, under Rule 275.2 of the UPC Rules of Procedure, that the steps taken be deemed effective service, without further attempt or informal notification to the defendant, whereby publication on the UPC website is said to meet the requirements of correct service.

Ultimately, however, the UPC maintains the requirement of a failed delivery attempt in the PRC. The typical practical difficulties that lead to a significant delay in service are not sufficient for the UPC to simply allow service to be effected by alternative means in accordance with Rule 275.2 of the UPC Rules of Procedure.

Service of documents in the PRC continues to present practical and legal problems. Against this background, German courts have increasingly begun to order service by publication in the interests of achieving legal protection for the party requesting service of documents, weighing up the interests of the parties involved in each case.

As a rule, the addressee of the service must be notified informally of the service by publication to safeguard their right to be heard. The UPC does not follow this German case law but, rather, emphasises its independence. Under its procedural rules, this means that foreign service of documents has priority, in accordance with the HSC, with the associated (known) practical difficulties. This regularly leads to a considerable delay in service. Claimants should take this into account when selecting this forum.