Definition and Fundamentals of Public Service
Die Public Service is a legal procedure in German civil, administrative, and criminal procedural law, by which a court or administrative communication or decision is made public by publication. It is the last resort when delivery to the addressee by conventional means is not possible or feasible. The purpose of public service is to ensure the right to be heard and to safeguard the legal substance of the proceedings.
The legal basis for public service is found in particular in the Code of Civil Procedure (ZPO), the Code of Administrative Court Procedure (VwGO) and the Code of Criminal Procedure (StPO).
Requirements for Public Service
Civil Procedural Requirements (ZPO)
According to § 185 ZPO, public service is permissible if
- the whereabouts of the recipient are unknown,
- service abroad is impossible or not permissible,
- the recipient’s whereabouts cannot be determined without considerable delay,
- other reasons exist, making service by conventional means unsuccessful.
Public service is always the last permissible measure and may only be applied when all other types of service are excluded or have failed. Efforts made to determine the whereabouts must be documented.
Administrative Law Requirements (VwGO)
In administrative proceedings, public service is allowed under § 10 VwZG (Administrative Service Act) only if service to a known address is not possible, the recipient’s whereabouts are unknown, or service abroad would be impossible or unreasonable.
Criminal Procedure Law Specifics (StPO)
Public service is also provided for in criminal proceedings (§ 40 StPO). It applies if the whereabouts of the accused cannot be determined despite reasonable investigations or if service abroad appears impracticable.
Procedure of Public Service
Application and Decision
Initiating public service occurs by application of the concerned party or ex officio by the court. Evidence must be provided demonstrating that other methods of service were not possible. The court reviews admissibility and decides by order.
Execution
Actual public service is generally carried out by posting the notice at a location designated by the court which is generally accessible within the courthouse, as well as by entry in an electronic register of service (§ 186 ZPO). Where appropriate, a publication is also made in the Federal Gazette or other official publications. In certain proceedings, such as insolvency proceedings, there are additional publication obligations.
Content of the Publication
The publication must include the essential content of the document to be served, particularly information on the sender, recipient, and a description of the content. The documents are made available for inspection at the court.
Legal Consequences and Effects
Commencement of Deadlines and Effectiveness
The effect of service occurs two weeks after posting or publication, unless otherwise specified (§ 188 ZPO). From this point, procedural deadlines begin to run, for instance for objection or appeal.
Curing of Service Defects
If another type of service has actually taken place, the actual receipt cures a previous defect of service. In the case of public service, curing by later knowledge is excluded, as the publication itself is decisive.
Areas of Application and Practical Examples
Typical Areas of Application
- Civil proceedings where a party cannot be located, for example after emigrating without leaving a known address,
- Probate proceedings where unknown heirs must be located,
- Criminal proceedings against fugitive accused persons,
- Administrative proceedings for unreachable addressees, such as in tax law.
Special Features in International Matters
In the international context, public service is only permissible if all means provided for by international law have been exhausted or their application is not possible. States that are parties to the Hague Service Convention generally require express proof of unsuccessful attempts at service abroad before public service will be recognized.
Legal Protection, Challenges, and Criticism
Legal Remedies
There is no direct legal remedy against the order of public service for those affected. Review takes place within the decision on the merits or may be raised incidentally in further proceedings. Missing of deadlines triggered by public service can, in some cases, be challenged by an application for reinstatement to the previous status if the party subsequently becomes aware of the service.
Challenges and Criticism
Public service is, from a rule-of-law perspective, a necessary but problematic tool, since it does not guarantee that the recipient actually becomes aware. Especially in cases where recipients deliberately conceal their whereabouts, it serves to protect legal commerce. Nevertheless, public service is criticized because it can significantly impair the right to be heard.
Public Service in Other Areas of Law
Labour Jurisdiction
In labor court proceedings, public service is also governed by § 53 ArbGG in conjunction with the provisions of the ZPO.
Social Jurisdiction
In social law, § 66 SGG applies with its own procedural rules, while the basic principles of public service are similarly adopted.
Summary
Public service is an institution enshrined in numerous procedural codes to ensure the delivery of court and administrative documents when all other delivery methods are hopeless. It is subject to strict legal requirements and procedural rules and takes effect with legally defined consequences. Due to its fundamental rights implications, the order and execution of public service must always be critically examined. It is indispensable to legal certainty, but at the same time, it can impair the right to be heard of the affected person.
Frequently Asked Questions
In which cases is public service applied in the legal context?
Public service is applied in German procedural law when formal service to the addressee by conventional means is not possible. This is particularly the case when the whereabouts of the person to be served is unknown and cannot be determined despite reasonable investigation. Public service can also be ordered if service abroad is impracticable or unreasonable. The requirements and process are particularly strictly regulated to ensure it is only used as a last resort to preserve the right to be heard of the affected party, and to avoid unnecessary delays in proceedings.
What are the legal bases governing public service?
Public service is governed by the relevant procedural codes: for example, in the Code of Civil Procedure (§§ 185-188 ZPO), in the Administrative Procedure Act (§ 10 VwZG), in criminal procedure law (StPO), as well as in the Social Court Act (SGG). These provisions regulate the requirements, procedure, and legal effects of public service. There are both common and differing rules depending on the jurisdiction and subject matter.
How does the public service procedure work?
The procedure usually begins with an application to the competent court or relevant authority. The court reviews the admissibility, particularly the investigations carried out regarding the whereabouts of the affected person. If public service is ordered, it is typically effected by posting a notice on the court’s notice board or the court’s public notice site. In addition, depending on the specific regulations, it may be published in official journals or online. Service is deemed completed after a certain period (usually two weeks) has elapsed.
What legal effects does public service have?
Public service triggers the same legal consequences as formal personal service, in particular the commencement of deadlines (e.g. for filing legal remedies). This means the affected person is deemed to have received notice of the service, even if they in fact did not become aware of it. This constitutes a significant intrusion, which is why public service is only permitted under narrowly defined statutory conditions.
What are the risks involved in the ordering and execution of public service?
The primary risk of public service is that the affected person may not actually become aware of the service and thereby be unable to exercise their rights. This may result in a violation of the right to be heard. Errors in ordering or carrying out public service can lead to serious consequences, such as the invalidity of the service and, in the worst case, the contestability of judicial decisions, up to a reopening of proceedings.
Can affected parties contest public service?
Affected parties have the opportunity to retroactively challenge the effectiveness of public service, particularly through legal remedies by which they can argue that the statutory requirements for the order were not met or that the procedure was faulty. The prerequisite is that there is a legal interest as well as credible evidence or proof, for example, that the person was not of unknown whereabouts or that the court did not undertake all reasonable investigations.
Are there special rules for public service to legal entities?
Yes, there are special requirements for legal entities. Public service to a legal entity is only permitted if both its legal representative and the address cannot be determined, despite all available investigative sources being exhausted. Here as well, the court’s investigative obligations must be strictly observed and documented in the reason for the decision. Case law requires that all reasonable steps have been taken to effect service by other means, since the right to be heard must also be fully safeguarded in this context.
