The Missing Service Receipt
A municipal administration issued a penalty order against a local trader on 10 June. The order was sent by registered mail to the address in the commercial register. The trader claims he never received it and only learned of it on 2 September, when a bailiff contacted him. The postal tracking shows the letter was returned to the administration marked "not found at address". No second attempt was made and no notice was posted. The trader files an appeal on 5 September. The administration argues the appeal is out of time and that service was valid because the letter went to the registered address. You must advise on whether service was effective, whether the appeal is admissible, and what the administration should do next.
1. Analyse whether service of the penalty order was legally effective and what follows for the appeal deadline.
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Service is not a formality; it starts the clock for appeals and must be legally effective.
1. The applicable rules. Under the Administrative Procedure Code, service by post is generally effected when the letter is delivered against signature, or, where the addressee cannot be found, through a defined procedure: a second attempt, and then a notice at the address or on the door, followed by deposit at the post office or the municipal administration. Only after that procedure is service deemed complete.
2. What happened here. One delivery attempt was made. The letter was returned "not found at address". There was no second attempt and no notice. That is not the procedure the law prescribes. The mere sending to the registered address does not by itself constitute effective service.
3. Consequence. Because service was not validly effected, the appeal period did not start running on the date of the failed delivery. It began when the trader actually learned of the order - on 2 September. An appeal on 5 September is therefore within the ordinary appeal period and is admissible.
4. Practical point. The administration's argument that the address was correct is not enough. Correct addressing is a precondition, not a substitute for the service procedure.
5. What to advise. Concede that the appeal is timely, re-examine the file, and ensure that any future service follows the full procedure with documented attempts and notice.
2. The administration wants to defend the order on the merits. Outline the steps it should take and the risks it faces.
Read the worked answer
Once the appeal is admitted, the administration must defend the order on substance and procedure.
Steps:
- Reconstruct the file. Confirm the order was issued by a competent authority, contains the required elements (facts, legal grounds, operative part, appeal instructions), and was signed and dated.
- Check the factual basis. Assemble the inspection report, the evidence of the breach, and any prior correspondence with the trader.
- Prepare the response to the appeal. Address both the procedural objection (service) and the substantive grounds. Since the service defect is real, do not waste credibility contesting it.
- Consider remedial options. If the order is otherwise sound, ask the court to confirm it and to treat the service defect as curable by proper re-service. If the defect is substantive, consider withdrawing or reissuing the order.
Risks:
- The court may annul the order on the procedural defect alone, without reaching the merits.
- Re-issuing the order after the appeal may raise limitation issues if the statutory period has run.
- Inconsistent positions - arguing valid service while also re-serving - weaken the administration's credibility.
Recommendation: Acknowledge the service defect, re-serve properly, and focus the defence on the merits. Keep a written record of every step.