The digitalisation of the Croatian court system is proceeding and e-communication is expanding. Snail mail and "paper" communication are on the verge of extinction. As of 1 September 2020, all legal entities will have to use e-communication with the court.
All legal entities registered in the Croatian Commercial Register must submit information on their e-mail address for e-communication no later than three months from the registration of the establishment.
The new era is beginning and no one can afford to ignore these changes or think that notifying their e-mail address to the court registry is all that e-communication will entail. Even worse, failing to notify the e-mail address and not using e-communication may have harsh consequences. This article serves as a roadmap for companies seated in Croatia to keep up with all the forthcoming obligations.
It is also a wake-up call before you discover that money was collected from your account based on a default judgment rendered by the due delivery of a lawsuit to your company through the e-communication system – or rather the attempted delivery if your company has not previously notified its e-mail address to the court.
Mandatory e-communication with courts for legal entities
With the latest amendment of the Civil Procedure Act (OG 70/2019) and the associated Rulebook on Electronical Communication that came into force in late January 2020, e-communication is made operational in all commercial, municipal and county courts as well as in the High Commercial Court of the Republic of Croatia.
Unlike for natural persons, which can still opt for the preferred mode of communication with the courts, e-communication is made mandatory for all legal entities in Croatia. Up until September 2020, this was the obligation for attorneys, public notaries, public bodies and the like.
Therefore, as of 1 September 2020,legal entities are required to communicate only electronically with courts in civil and commercial proceedings.
E-communication is not yet possible for Land Register and Commercial Register cases as they run on a separate system.
What is meant by e-communication?
E-communication essentially means submitting and receiving documents in a court proceeding, but it also enables a party in a dispute to have remote access to all the case files.
For example, e-communication includes:
receiving court documents;
sending submissions and attachments to the court;
remote access to court documents;
receiving a warning that bankruptcy proceedings have been initiated against one of the parties in cases in which they are proxies.
How does the e-communication system work?
E-communication is facilitated through the special system "eKomunikacija" as part of the "eSpis" system used by the Croatian judicial system.
personal identification number (OIB) of the legal entity;
name of the legal entity;
e-mail address of the legal entity (at this address you will receive notifications about court documents received by e-communication);
first name and surname, personal identification number (OIB) of the proxy authorised on behalf of the legal entity to take actions in e-communication (the Ministry will include only persons registered in the Commercial Register as authorised representatives, while these persons may later authorise new proxies through the e-communication system).
After registration in the system, there are still some technical preconditions that a legal entity must obtain in order to safely use e-communication:
electronic credentials level 3 or higher;
signature certificate used to sign documents with a qualified electronic signature.
In practice, bank tokens of all major banks may be used to access the e-communication system, but signing documents requires the use of a qualified electronic signature which may be obtained from several providers.
What are the format requirements of the submissions filed through the system?
Submissions must be submitted in electronic form (pdf format) and signed with the qualified electronic signature of the legal entity. In practice, all attorneys in Croatia have made this transition in a short period with the assistance of the Croatian Bar Association.
If the submission or attachment consists of several sheets, all sheets should be contained in one file, without blank sheets. Each submission and attachment should be formed as one file or (due to the size of the file) in several files indicating in the file names that they together form one file as a whole.
How does the filing and delivery work?
After a successful submission, the court will send a notification of receipt certified with a qualified time stamp. The moment of receipt is therefore considered to be the day, hour and minute stated on the time stamp and the notification acts as confirmation of receipt.
However, if the submission is not suitable to be processed by the court, the court will notify the applicant electronically and order them to correct the submission in accordance with the instructions.
Upon delivery of new court decisions or documents through the e-communication system, the user will receive an e-mail notification informing them about new items in their secure electronic mailbox. Electronic documents sent by the court must be retrieved through the secure mailbox of the legal entity by:
proving its identity using the credentials;
inspecting the secure electronic mailbox; and
confirming the receipt electronically.
By doing so, the legal entity will receive a certificate of delivery for the electronic court document, also signed with a qualified time stamp.
If a legal entity does not retrieve the document sent by the court within 15 days of receiving the notification, the e-communication system will send a confirmation of non-retrieval for the relevant document to eSpis. At that point, the document is deemed to be validly delivered and the disputed party properly notified.
What to do if there is a system crash?
If the system is not working properly and the user is unable to send their submission with less than two hours left until the deadline, the user must report the problem to the system administrator. In such cases, the submission deadline will be extended by one day from the moment the system becomes available for use again.
The previous exemption does not apply if it is determined that the user is responsible for the malfunction of the e-communication system.
Notifications about the system's unavailability due to technical difficulties and information on the continuation of the deadlines for submissions will be published on the system website.
Also, if the court is made aware of the fact that a user is unable to access the system for some objectively justified reason, the documents may be delivered in another appropriate manner.
Consequences of non-compliance
If a legal entity does not comply with the previously mentioned obligation, they will not be able to file submissions to the court. If a submission is filed in any other form, the court will have to order the applicant to file the submission in electronic form within eight days. If the applicant does not file the submission in electronic form within the specified time limit, the submission will be considered withdrawn. Moreover, as of 1 September 2020, Croatian courts will not have an obligation to provide additional time to file submissions in electronic form. The courts could automatically consider a submission that is not filed through e-communication as not filed at all.
The most severe consequence is that a default judgment could be rendered against a legal entity that does not have access to the e-communication system. Namely, if a respondent is a legal entity and does not file a response to the lawsuit via e-communication within the specified time limit, a judgment could be issued accepting the claim (a default judgment). However, this can happen only if among other conditions that should be met the court properly delivers the lawsuit. It is questionable how the Croatian courts will deliver lawsuits and other submissions to legal entities that are not using e-communication.
Pursuant to the practice of the European Court of Human Rights, courts and public authorities must do all that can be reasonably expected of them in the circumstances of the case to inform the party of the proceedings. In so doing, the national court must be able to prove what concrete steps it has taken to find the party's address. It is therefore uncertain exactly what measures (if any) a Croatian court should and will take when a legal entity does not have e-communication despite being obliged to use it.
This uncertainty could gravely impact companies seated in Croatia, so it is highly advisable to notify the e-mail address to the competent court and to set up the e-communication system. If a lawsuit is filed, the company will be notified by e-mail from the system and may take appropriate actions. As the law prescribes a 15-day period in which a submission may be collected from the system, it would be advisable to log into the system every two weeks.
E-communication is no different from the company's mailbox and ignoring it could have negative consequences. Notifying the e-mail address to the court and monitoring e-communication is therefore of the utmost importance.
By Gina Grancaric, Associate, Vlahov Buhin i Sourek d.o.o., and Vice Mandaric, Attorney at Law, Mandaric & Einwalter, in cooperation with Schoenherr