OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 26 November 2020(1)

Case C‑307/19

Obala i lučice d.o.o.

v

NLB Leasing d.o.o.

(Request for a preliminary ruling from the Visoki trgovački sud Republike Hrvatske (High Commercial Court of the Republic of Croatia))

(Reference for a preliminary reference – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Regulation (EC) No 1393/2007 – Concept of ‘civil and commercial matters’ – Service of ‘judicial’ or ‘extrajudicial’ documents – Undesignated ‘transmitting agencies’ – Notary issuing a writ of execution based on an ‘authentic document’ – ‘Special’ or ‘exclusive’ jurisdiction for parking on a public road)

I.      Introduction

1.        The applicant is a private entity tasked with managing public parking areas in Zadar (Croatia). It inspected a car owned by the defendant parked in a designated parking space on a public street. A parking ticket was not on display in that car. The applicant issued a daily parking ticket, which remained unpaid. The applicant thus sought enforcement thereof through a writ of execution issued by a notary in Croatia, which was served on the defendant in Slovenia.

2.        This case is another episode in what has now become a rather rich procedural saga of unpaid parking tickets and notaries. (2) The crux of the problem appears to be a certain double privatisation carried out by the Croatian legislature at both management and enforcement level. A matter commonly perceived in other Member States to be administrative in nature is entrusted to private entities. The subsequent enforcement of such a claim is also not designed to be a matter for the courts, but rather, at least at first instance, for notaries.

3.        This not only causes some unease with regard to the structure as a whole, but it also creates taxonomic frictions with(in) EU private law instruments. It is within this context that the Visoki trgovački sud Republike Hrvatske (High Commercial Court of the Republic of Croatia), after two lower national courts declined jurisdiction, is seised with a conflict of jurisdiction over a challenge to such a writ issued by a notary.

4.        That referring court seeks guidance on, amongst other things: (i) the test for determining whether a dispute relates to ‘civil and commercial matters’ within the meaning of Regulation (EC) No 1393/2007 (3) (‘the Service Regulation’) and Regulation (EU) No 1215/2012 (4) (‘the Brussels Recast Regulation’); (ii) whether notaries in Croatia may transmit writs of execution to persons residing in other Member States within the framework of the Service Regulation; and, (iii) under which specific head of jurisdiction could such disputes fall pursuant to the rules of the Brussels Recast Regulation.

II.    Legal framework

A.      EU law

1.      Brussels Recast Regulation

5.        According to Article 1(1) of the Brussels Recast Regulation:

‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’

6.        Article 4 of that regulation sets out the ‘home State’ rule which requires that persons domiciled in a Member State, whatever their nationality, be sued in the courts of that Member State. However, Article 5 of that regulation provides that such a person may, by way of derogation, also be sued in the courts of another Member State, but ‘only by virtue of the rules set out in Sections 2 to 7 of [that] Chapter’.

7.        Article 7 of the Brussels Recast Regulation, which comes under a section titled ‘Special jurisdiction’, provides as follows:

‘A person domiciled in a Member State may be sued in another Member State:

(1)      (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question,

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

–        in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

–        in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c) if point (b) does not apply then point (a) applies;

(2)      in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

8.        Article 24(1) of the Brussels Recast Regulation provides for exclusive jurisdiction, ‘in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated’.

2.      The Service Regulation

9.        Article 1(1) of the Service Regulation defines the scope of the regulation and reads as follows:

‘1. This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii).’

10.      Pursuant to Article 2 of that regulation, which is titled ‘Transmitting and receiving agencies’:

‘1. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as ‘transmitting agencies’, competent for the transmission of judicial or extrajudicial documents to be served in another Member State.

…

4. Each Member State shall provide the Commission with the following information:

(a)      the names and addresses of the receiving agencies referred to in paragraphs 2 and 3;

(b)      the geographical areas in which they have jurisdiction;

(c)      the means of receipt of documents available to them; and

(d)      the languages that may be used for the completion of the standard form set out in Annex I.

Member States shall notify the Commission of any subsequent modification of such information.’

11.      Article 4(1) of the Service Regulation states that ‘judicial documents shall be transmitted directly and as soon as possible between the agencies designated pursuant to Article 2’.

12.      Service of ‘judicial documents’ through the postal services of the Member States may be carried out in accordance with to Article 14 of the Service Regulation. Service of ‘extrajudicial documents’ is governed by Article 16 of the Service Regulation, which states that those documents ‘may be transmitted for service in another Member State in accordance with the provisions of this Regulation’.

B.      Croatian law

1.      The Zadar Organisation Decision

13.      The Odluka o organizaciji i načinu naplate parkiranja u Gradu Zadru (Decision on the organisation and procedures for collecting parking fees in the City of Zadar (‘the Organisation Decision’)) (‘Glasnik Grada Zadra’ No 4/2011) establishes parking zones, periods when fees shall apply for on-street parking and the hourly parking fee. Article 2 of that decision defines public car parks as ‘public areas for the stopping and parking of vehicles’. Article 4 states that public car parks are indicated as such, in accordance with the Law on Road Safety.

14.      Pursuant to Article 5 of the Organisation Decision, the marking of public car parks is carried out by the parking organiser, under the supervision of the competent department of the municipal authority. Article 6 of that decision determines the ‘general terms and conditions of the contract for use of car parks’, laying down the days and times during which parking fees must be paid. Finally, Article 7 of the Organisation Decision establishes that by stopping or parking a vehicle in the public parking area, the driver or owner of the vehicle accepts the general terms and conditions for parking and thereby concludes a contract with the parking organiser.

2.      The Zadar Appointment Decision

15.      The management and maintenance of car parks, public garages, and road terminals within the city of Zadar is governed by the Odluka o komunalnim djelatnostima Grada Zadra (Decision on Municipal Activities of the City of Zadar) (‘Glasnik Grada Zadra’ No 16/2009). Article 3(15)(a) thereof entrusts the applicant with the maintenance and management of car parks, public garages, and road terminals.

III. Facts, national proceedings and the questions referred

16.      NLB Leasing d.o.o. Ljubljana (‘the defendant’) is a company that provides financing for the use of vehicles, equipment and real estate in Slovenia.

17.      On 30 June 2012, a car leased from the defendant was parked on a public street in Zadar (Croatia). That street is a defined parking zone with designated parking spaces. A parking ticket has to be bought in advance of parking.

18.      On the same day, Obala i lučice d.o.o. (‘the applicant’), a limited liability company founded by the city of Zadar for the purpose of the management and maintenance of public areas for parking of motor vehicles, carried out a ticket inspection on the car leased by the defendant. The car did not have a parking ticket on display. Accordingly, the applicant issued a daily parking ticket (84 kuna croate (HRK), approximately EUR 13). That daily parking ticket was never paid.

19.      On 1 July 2013, the Republic of Croatia joined the European Union.

20.      On 20 February 2017, the applicant commenced enforcement proceedings for recovery of the outstanding parking ticket debt with a notary in Pula (Croatia) by making an application for enforcement on the basis of an ‘authentic document’. That document was an extract from the applicant’s own accounts which recorded the debt owed by the defendant.

21.      On 8 March 2017, on the basis of that ‘authentic document’, the notary issued a writ of execution for the value of HRK 1 825.25 (approximately EUR 282). That total consisted of the value of the unpaid parking ticket (HRK 84), fees arising from the cost of the proceedings up to that point (HRK 1 235), as well as fees for ‘foreseeable costs’ (HRK 506.25). The writ was then served on the defendant by means of registered letter with acknowledgment of receipt.

22.      The defendant challenged the writ before the Trgovački sud u Pazinu (Commercial Court, Pazin, Croatia). That court ruled that it lacked jurisdiction and referred the case to the Trgovački sud u Zadru (Commerical Court, Zadar, Croatia). The latter court also stated that it lacked jurisdiction and referred the case to the Visoki trgovački sud Republike Hrvatske (High Commercial Court of the Republic of Croatia) for a decision.

23.      Although the referring court notes that the nominal sum the enforcement of which is sought is low, it also recognises that the national courts are being seised with a considerable number of such cases. It is within this factual and legal context that the Visoki trgovački sud (Commercial Court of Appeal, Croatia) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Are notaries authorised to effect service of documents under Regulation [ No 1393/2007] when they serve notice of their decisions in cases in which Regulation No 1215/2012 does not apply, bearing in mind that, in Croatia, notaries acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’ do not fall within the concept of “court” within the meaning of Regulation No 1215/2012? In other words, given that notaries do not fall within the concept of “court” for the purposes of Regulation No 1215/2012, are they able, when acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an “authentic document”, to apply the rules governing service of documents established in Regulation [No 1393/2007]?

(2)      Can parking in the street and on the public highway, where the right to collect payment is conferred by the Zakon o sigurnosti prometa na cestama (Law on Road Safety) and the legislation governing the performance of municipal activities as public authority activities, be considered a civil matter within the meaning of Regulation ([No 1215/2012], which governs the question of the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, especially having regard to the fact that, where a vehicle is found without a parking ticket or with an invalid ticket, it is immediately subject to a requirement to pay for a daily ticket, as though it had been parked for the whole day, regardless of the precise length of time for which it was parked, meaning that this daily parking charge has a punitive effect, and that in some Member States this type of parking constitutes a traffic offence?

(3)      In court proceedings of the type referred to above concerning parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of a document on the defendants in another Member State under Regulation [No 1393/2007]?

If, based on the above questions, this type of parking is ruled to be a civil matter, the following further questions are referred.

(4)      In the present case, there is a presumption that a contract is concluded in respect of the aforesaid on-street parking in a space designated by horizontal and/or vertical markings; in other words, by parking there one is deemed to enter into a contract, and if one fails to pay the correct hourly parking charge one has to pay for a daily ticket. The question is therefore raised as to whether that presumption, that parking gives rise to a contract and entails consent to pay for a daily ticket if one does not buy a ticket in accordance with the hourly parking tariff or if the parking period on the ticket has expired, is contrary to the basic stipulations on the provision of services in Article 56 of the Treaty on the Functioning of the European Union and to the other provisions in the EU acquis.

(5)      In the present case the parking took place in Zadar, Croatia, and there is therefore a connection between that contract and the Croatian courts. But does this parking constitute a “service” within the meaning of Article 7(1) of Regulation [No 1215/2012], bearing in mind that the concept of service implies that the party who provides the service carries out a particular activity, that is, that the said party carries out that particular activity in return for remuneration. The question is therefore whether the activity carried out by the appellant is sufficient for it to be considered a service. If the Croatian courts do not have special jurisdiction under Article 7(1) of Regulation ([No 1215/2012], jurisdiction to hear the case would lie with the court of the respondent’s domicile.

(6)      Can parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, and charges are levied only during a specified period during the day, be considered a tenancy agreement for immovable property under Article 24(1) of Regulation [No 1215/2012]?

(7)      If the aforementioned presumption that the parking entails the conclusion of a contract (fourth question referred) cannot be applied in this case, can this type of parking, where authority to collect parking charges is conferred by the Law on Road Safety and a daily ticket must be purchased if a ticket for the parking period is not purchased in advance or if the parking ticket has expired, be deemed to constitute a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of Regulation [No 1215/2012]?

(8)      In the present case, the parking took place before Croatia joined the European Union, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing applicable law, namely Regulation No 593/2008 or Regulation No 864/2007, apply in the present case, having regard to their temporal validity.

If the Court of Justice of the European Union has jurisdiction to provide a response on the application of the material law, the following question is referred.

(9)      Is the presumption that this type of parking gives rise to a contract and entails consent to pay for a daily ticket if one does not pay the hourly parking charges or if the ticket expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the acquis, irrespective of whether the owner of the vehicle is a natural or a legal person? In other words, for the purposes of determining the material law, can the provisions of Article 4 of Regulation No 593/2008 apply in this case (given that there is no evidence in the proceedings to show that the parties came to an agreement on the applicable law)?

–        If a contract is held to exist, would it be a contract for the provision of services in the present case, that is to say, can the parking contract be considered a service within the meaning of Article 4(1)(b) of Regulation No 593/2008?

–        In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of Regulation No 593/2008?

–        In the alternative, if the parking comes under the provisions of Article 4(2) of Regulation No 593/2008, the question arises as to what constitutes the characteristic performance in the present case, bearing in mind that, in essence, the appellant merely marks the parking area on the roadway and collects parking charges, while the respondent parks and pays for the parking. In practice, if the characteristic performance is considered to be that of the appellant, Croatian law would apply, whereas if the characteristic performance is that of the respondent, Slovenian law would apply. However, given that in this case the right to collect parking charges is regulated by Croatian law, with which, therefore, the contract is more closely connected, can the provisions of Article 4([3]) of Regulation No 593/2008 nevertheless also apply?

–        If the case is considered to involve a non-contractual obligation within the terms of Regulation No 864/2007, could this non-contractual obligation be considered to constitute damage, meaning that the applicable law would be determined in accordance with Article 4(1) of Regulation No 864/2007?

–        In the alternative, could this type of parking be considered to constitute unjust enrichment, meaning that the applicable law would be determined in accordance with Article 10(1) of Regulation No 864/2007?

–        In the alternative, could this type of parking be considered to constitute negotiorum gestio, in which case the applicable law would be determined in accordance with Article 11(1) of Regulation No 864/2007?

–        In the alternative, could this type of parking be considered to constitute liability on the part of the respondent for culpa in contrahendo, in which case the applicable law would be determined in accordance with Article 12(1) of Regulation No 864/2007?’

24.      Written observations in the present proceedings have been submitted by the applicant, the German and Croatian Governments, as well as the European Commission. With the exception of the German Government, all the parties, and also the Slovenian Government, replied to the written questions put to them by the Court.

IV.    Analysis

25.      As requested by the Court, I shall confine my analysis to Questions 1 to 3 and 5 to 7 submitted by the referring court. This Opinion is structured as follows. I shall start with brief observations on admissibility (A). I will begin the substantive analysis by reformulating the questions (B.1). I shall then turn to the concept of ‘civil and commercial matters’ under the Brussels Recast and Service Regulations (B.2). Next, I will address the issue of whether notaries in Croatia may themselves effect service (under the Service Regulation) of writs of execution drawn up on the basis of an ‘authentic document’ (B.3). Thereafter, I will examine the issue of whether parking in a designated parking area on a public road may be considered an activity giving rise to any ‘special’ or ‘exclusive’ heads of jurisdiction under the Brussels Recast Regulation (B.4). I shall conclude with the broader, structural issues raised by the present case (C).

A.      Admissibility

1.      Applicability of EU law ratione temporis

26.      On 30 June 2012, the parking occurred. On 1 July 2013, Croatia acceded to the European Union. On 8 March 2017, the writ of execution was issued.

27.      For the reasons that I set out in detail in my Opinions in Nemec and Pula Parking, (5) an approach that was shared by the Court in both cases, (6) the applicability of EU law ratione temporis is not an issue in cases such as the present one. The fact that the (substantive) basis for a claim precedes the accession of a Member State to the European Union is not decisive. It is important to point out, in this regard, that the enforcement procedure for recovery of that claim was initiated after the accession of Croatia to the European Union, thus clearly within the temporal scope of the procedural rules and framework potentially applicable ratione materiae, and that the questions submitted to this Court concern the interpretation of those procedural instruments.

28.      Since that is clearly the case in this instance, the Court is competent ratione temporis to answer the questions posed by the referring court.

2.      Admissibility of questions linked to the substance of the case

29.      The Commission observes that the referring court, faced with a conflict of jurisdiction between two lower courts within its legal system, may refer only those questions which will enable it to resolve the jurisdictional issues before it. Conversely, it may not do so for questions linked to the substance of the present case. This means that Question 1 and the first part of Question 3 (which seek clarification as to whether notaries in Croatia may effect service of ‘judicial and extrajudicial documents’) should be deemed inadmissible. At national level, the present case has not yet entered the substantive phase given that the referring court must first resolve the conflict of jurisdiction that led to the case arising before it. The parties thus may not yet have had the chance to take position on some of those issues.

30.      I understand the Commission’s concerns. However, I do not share them.

31.      First, in cases relating to the Brussels Recast Regulation, as in any other jurisdictional system, substance is commonly intertwined with jurisdiction. For the purposes of assessing jurisdiction a preliminary, telescopic analysis of the substance is often needed. From that perspective, a division between the two is not at all easy to make. Even if that were possible, Question 1 and the first part of Question 3 clearly relate to the actual facts and purpose of the main action, and therefore do not fall outside the overall limits of the preliminary rulings procedure.

32.      Second, the stage of proceedings before the national court is not a criterion against which requests for a preliminary ruling are reviewed. Article 267 TFEU is an instrument of cooperation according to which any questions referred are generally presumed to be relevant, albeit subject to some limits. (7) Within that framework, the national court alone assumes responsibility for the subsequent judicial decision and the need and relevance of the questions which it submits to the Court. (8) Thus, one must presume that the national court has determined the overarching need for the Court’s guidance for the effective resolution of those questions. (9)

33.      On that basis, I suggest that Questions 1 and 3 of the referring court be declared admissible, although indeed, together with the other questions, they require some reformulation.

B.      Substance

1.      The questions and their order

34.      Reading Questions 1 to 3 and then 5 to 7 in the context of the order for reference, it would appear that, at its heart, the present case touches on three overarching elements of EU private international law. The first relates to the content and nature of the claim for the unpaid parking ticket (Question 2 and the second part of Question 3). That is to say whether the enforcement of that debt is a dispute relating to ‘civil and commercial matters’. The second relates to the enforcement and procedure of the claim within the specific context of Croatian law (Question 1 and the first part of Question 3). In particular, may notaries in Croatia effect service of writs of execution drawn up on the basis of an ‘authentic document’ under the Service Regulation? The third element concerns the competent jurisdiction for the claim (Questions 5 to 7). Specifically, is there any special head of jurisdiction under the Brussels Recast Regulation under which the enforcement of an unpaid parking ticket could be subsumed, thus conferring jurisdiction on the courts of a Member State other than the domicile of the debtor?

35.      In view of the above understanding of the questions addressed in this Opinion, I shall rearrange the order of the questions slightly. Question 2 and the second part of Question 3 concern issues of scope. I shall thus deal with them first. Those questions can essentially be rephrased to enquiring whether the circumstances of the present case are covered by the concept of ‘civil and commercial matters’ within the meaning of the Brussels Recast Regulation and the Service Regulation. Thereafter, I shall consider Question 1 and the first part of Question 3, which concern two issues: (i) whether notaries in Croatia may transmit ‘judicial documents’; and (ii) whether, if at all, they are limited to transmitting ‘extrajudicial documents’ under the Service Regulation. Finally, I shall turn to Questions 5 to 7, which I propose to reformulate so as to assess whether parking in a designated parking area on a public road could be considered an activity giving rise to ‘special’ or ‘exclusive’ jurisdiction within the meaning of the Brussels Recast Regulation.

2.      Question 2 and the second part of Question 3

36.      By Question 2 and the second part of Question 3, the referring court seeks to determine whether the circumstances of the present case are covered by the concept of ‘civil and commercial matters’, within the meaning of Article 1(1) of the Brussels Recast and Service Regulations.

37.      The views of the parties and interveners differ on that issue. The German and Slovenian Governments consider that the present case falls outside the concept of ‘civil and commercial matters’. In their view, it is the origin of the power under which the contract was concluded and which is enforced in this respect that is determinant. That is, the public power to designate and manage public parking spaces and to supervise the conditions for parking thereon. The applicant, the Croatian Government and the Commission take the opposite view. To them, it is not the origin of the power but rather the modalities of its exercise which represent the determinative element for identifying ‘civil and commercial matters’.

38.      In answering the referring court’s questions, I shall start by seeking to identify a test, or at least a prevailing approach, in the case-law of the Court vis-à-vis the concept of ‘civil and commercial matters’ (a). Having clarified which of the approaches should, in my view, be favoured, I shall then apply that approach to the circumstances of the present case. (b)

(a)    The case-law on the concept of ‘civil and commercial matters’

39.      The concept of ‘civil and commercial matters’ is a standard point of reference for defining the scope of legal texts adopted pursuant to the empowerments (now) contained in Title V of the TFEU. (10)

40.      Yet, none of those instruments feature a positive definition of the concept of ‘civil and commercial matters’. (11) As such, it has fallen to the Court to determine, on a case-by-case basis, whether the circumstances before it relate to ‘civil and commercial matters’. (12)

41.      The inevitable effect of such an approach has been its casuistic nature and the occasional lack of legal certainty in borderline cases. Given the shared objective of those instruments, that outcome is somewhat ironic. After all, they are intended, primarily to ensure legal certainty through uniform rules concerning conflict of jurisdiction and the simplification of formalities relating to judicial decisions, their service, and enforcement in the internal market.

42.      What then constitute the prevailing approaches? It is perhaps useful, since the concept of ‘civil and commercial matters’ is indeed transversal to all EU private international law instruments, to look first at the ‘Brussels Regime’ (1) and then at the Service Regulation and other ‘Title V’ instruments (2).

(1)    The Brussels Regime

43.      Five instruments make up the Brussels Regime. (13) Since each of those instruments relate to the conflict of jurisdiction in legal disputes relating to ‘civil and commercial matters’, (14) the Court has sought to interpret that concept uniformly. (15) Still, there are two, if not three, approaches to the concept of ‘civil and commercial matters’, depending on what element is identified as decisive. They can perhaps best be described as the ‘subject matter’ perspective (i) and the ‘legal relationship’ perspective (ii).

(i)    The ‘subject matter’ perspective

44.      The ‘subject matter’ perspective relating to the interpretation of the concept of ‘civil and commercial matters’ is reflected in two (sub)strands of case-law. The first strand of case-law, reflected principally in the earlier judgments of the Court, is based on a more autonomous and comparative interpretation of the concept of ‘civil and commercial matters’, (16) supported by references to commonalities between the systems of the Member States.

45.      The judgment in Rüffer is an excellent example of this approach. That case concerned an enforcement action against a German individual for the costs associated with the removal of what remained of a wrecked vessel from a river in the Netherlands. Likely influenced to a large extent by the indeed comparative, inductive assessment of Advocate General Warner, (17) the Court found that ‘the general principles which stem from the corpus of the national legal systems of the Member States’ regard the administration of public waterways, including the removal of wrecks, as the exercise of public authority. (18) Hence, the action fell outside the concept of ‘civil and commercial matters’ within the meaning of the Brussels Convention. (19) The fact that the dispute was initiated under civil law of the Netherlands was not taken into account. (20)

46.      Thus, in Rüffer, the autonomous nature of the concept of ‘civil and commercial matters’ made it possible to reclassify, for the purpose of the Brussels Regime, a different institutional choice of a Member State. Similar comparative assessments of the ‘classification’ of a matter for the purposes of the national law of the Member States (even where the submissions provided by the Member States, and thus the inductive reasoning, were not uniform), and with reference to the case-law of the European Court of Human Rights, were made, for example, in the judgments in Lechouritou and Sonntag. (21)

47.      The Court then gradually changed tack. Although the reason for this change was never clearly explained, the cause may have been simple pragmatism: as Advocate General Trstenjak observed, the ‘comparative perspective’ may likely have been retired due to the various organisational forms and the large number of national legal orders of the Member States. (22)

48.      In its place, the second strand of case-law took hold. That strand has regard to the national law on the subject matter at hand. (23) However, the Court does not appear to be bound solely by national law: in flyLAL-Lithuanian Airlines, an action concerning compensation for damage resulting from the infringement of Articles 81 and 82 EC (now Articles 101 and 102 TFEU), the Court characterised the dispute as concerning a ‘civil and commercial matter’, seemingly by reference to EU law, without further assessing the national law of Latvia. (24)

49.      Although naturally just referring to a general tendency, within which exceptions exist, the language remained one of an ‘autonomous concept’ of EU law. However, as is the case in a number of other areas of EU law, particularly in a Union composed of 27 Member States, genuine comparative assessment became less common. Instead, ‘autonomous’ in practice has increasingly come to mean ‘as defined in the Member State at issue unless something very odd is going on’.

(ii) The ‘legal relationship’ perspective

50.      The ‘legal relationship’ perspective appears to follow from the judgment in Henkel. (25) That approach seeks to ascertain whether the action before the Court involves a unilateral exercise of a public power within the specific legal relationship at issue between the parties.

51.      To that end, the Court uses two broad indicators. First, it sets a ‘reference framework’ to determine the ordinary legal rules applicable to relationships between private individuals. It does so by having regard to (i) the ‘basis of the action brought’ and (ii) the ‘detailed rules governing the bringing of that action’ under the relevant national law of the Member State. (26) Second, it assesses whether the dispute in question arises from a unilateral exercise of public powers outside that ‘reference framework’. (27)

52.      Both the ‘subject matter’ approach and the ‘legal relationship’ approach have been used in recent years, with the case-law not identifying any preference for either method. In fact, I note that the most recent judgment of the Court specifically refers to those two approaches as alternatives. (28)

(2)    The Service Regulation and other ‘Title V’ instruments

53.      The judgment in Fahnenbrock is the only precedent interpreting the concept of ‘civil and commercial matters’ as it appears in Article 1(1) of the Service Regulation. That case concerned an action brought by natural persons against a unilateral and retroactive restructuring of Greek State bonds. To determine whether the matter fell within the scope of the Service Regulation, the Court applied the ‘legal relationship’ approach, citing case-law from the Brussels Regime, to determine, on the basis of a preliminary review of the available evidence, whether the relationship between the parties was manifestly characterised by an exercise of public powers. (29) On the basis of the admittedly incomplete evidence before it, the Court concluded that that was not the case. (30)

54.      As to the case-law relating to the other ‘Title V’ instruments, (31) the results are poor: those instruments do not feature a positive definition of the term ‘civil and commercial matters’ (32) and the Court has yet to give guidelines on the interpretation of that concept as it appears in those instruments. (33)

(3)    Defining ‘civil and commercial matters’

55.      This is neither the first (nor the last) Opinion seeking clarification as to how exactly the concept of ‘civil and commercial matters’ is to be interpreted for the purposes of the Brussels Regime and beyond on the basis of the casuistic case-law of the Court. It is undoubtedly true that an Opinion can hardly compete with elaborate academic taxonomies and qualifications set out in this regard. Nor should it.

56.      However, a deeper reflection on the test to be used is, in borderline cases such as the one in the main proceedings, crucial. The test will define the outcome.

57.      If a content-focused ‘subject matter’ assessment of the recovery of parking fees were to be chosen and if one were to strongly insist on the ‘autonomous nature’ of an EU law definition, possibly supported by a comparative overview leading to the suggestion that there are some general principles of law common to the Member States on this issue, then one may possibly arrive at the conclusion that in a not so insignificant number of other Member States, perhaps even in the majority of them, the management of car parks in a town and the issuing of fines for parking without a ticket would be characterised as an administrative activity. Conversely, an assessment of the subject matter, which takes, as its starting point, the national choice made in the Member State would likely point to a civil matter since Croatia, and perhaps some other Member States as well, chose to classify such types of relationships as civil (without, perhaps, such a legislative choice not necessarily being impossible per se from an EU perspective). If the ‘legal relationship’ perspective is applied and focus is put on the institutional powers at play, the dispute appears to be of a ‘civil and commercial matter’. Finally, it remains to be seen how an examination of ‘subject matter’ on the one hand, and the nature of the ‘legal relationship’, on the other hand, as alternative criteria (34) would operate, since these could be said to be pulling the present case in different directions.

58.      Granted, the task of identifying whether the procedural or substantive relations underlying the dispute are subject to an exercise of public powers should lie at the heart of such an assessment. (35) However, the mere existence of alternative approaches is confusing: a party faced with the question of whether its dispute may be covered by the simplified EU law regime for recognition of judgments or service of documents will hardly be able to conclude with confidence which approach it should use to assess whether its dispute is deemed to be of ‘civil and commercial matters’ within the meaning of those instruments.

59.      I would suggest relying mainly on the ‘legal relationship’ approach. In my view, that approach most reliably performs the function of the figurative railroad switch point guiding the dispute from one procedural track to another in search of the ‘right’ institutional path in a Member State at the preliminary stage of jurisdiction.

60.      First, the ‘nature of the legal relationship’ approach best illustrates what really needs to be done: the Brussels Regime, as well as a number of other systems for civil, or criminal or administrative horizontal cooperation within the European Union, require, at the stage of jurisdiction, the identification of relevant institutional partners for certain issues in each of the Member States. The ability to identify institutions with similar competences and powers that could, and thus should, cooperate under the given regime cannot be underestimated. It does not seek indirect harmonisation of that subject matter.

61.      From that point of view, it would be somewhat strange to use the subject matter, which is not being harmonised by the instrument in question, or even defined in a positive way, as the key criterion for the attribution of (or rather the tool for the overriding of) what is essentially institutional competence in a Member State. (36)

62.      Second, greater focus on the exact nature of the relationship at issue can provide greater precision and clarity, in particular when multiple legal relationships are involved. In those circumstances, the Court appears to isolate the determinative relationship in the dispute before it from any ‘upstream’ or ‘downstream’ relationships, something not easily done under the ‘subject matter approach’. (37) Therefore, the ‘legal relationship approach’ also lends itself better to complex disputes.

63.      Third, in situations where a Member State is faced with an enforcement request which may be the result of an abusive ‘shaping’ of the dispute under national law, or containing categorisation or elements that are simply not acceptable to the requested Member State, recourse can always be had to the substantive ex post ‘emergency brake’ of an infringement of public policy. (38) As regards the scope of the concept of ‘civil and commercial matters, which, after all, remains a question of jurisdiction, the Court, however, requires a broad interpretation of that concept. (39)

64.      Fourth, I accept that the focus on the ‘legal relationship’ approach owes much to the existence of a truly autonomous EU law concept of ‘civil and commercial matters’, which should not depend solely on national law. (40) The nature of the legal relationship analysis is indeed fundamentally reliant on the functions and competences assigned by national law to acts of a public authority and its dominions. Somewhat ironically, that analysis is inevitably less closely related to the idea of an ‘autonomous’ concept of ‘civil and commercial matters’ than the now-obsolete first strand of the ‘subject matter’ perspective. (41)

65.      However, I must admit to not being overly perturbed by such a prospect, since I have never believed, that in the specific context of the Brussels Regime, any such ‘unicorn’, that is a truly autonomous EU definition, in fact existed. One must acknowledge the inherent problem of ‘autonomous/not-so-autonomous’ definitions (such as the concept of ‘civil and commercial matters’ in the present case), which do not have a real ‘corpus’ of their own. They merely ‘piggy-back’ on the structure that a particular national legal system provides, and with the exception of perhaps cases of completely outrageous national legislative choices, morph into a different ‘shape’ depending on the national law and the dispute at hand. However sobering those conclusions may be, under the current type of legislative framework which does not provide a positive definition of the concept of ‘civil and commercial matters’, no singularly acceptable meaning of that concept exists.

66.      However, fifth and finally, the following ‘pointers’ within the ‘nature of the legal relationship’ approach may be of assistance to any public power assessment. Although they are by no means a list of conditions, they nonetheless reflect considerations present in the case-law: (i) start with the legal relationship which characterises the dispute; (ii) assess it against the framework generally applicable to private parties; and (iii) establish whether the dispute arises from a unilateral exercise of public powers outside that normal private ‘reference framework’.

(b)    Application to the present case

67.      In order to determine whether the present case satisfies the requirements relating to ‘scope’ of Article 1(1) of the Brussels Recast and Service Regulations, I shall consider whether the nature of the underlying ‘legal relationship’ is one relating to ‘civil and commercial matters’ (1). Having concluded that that indeed appears to be the case, I shall turn to the specific issues raised by some of the interveners, in particular the requirement to purchase full-day tickets and the additional fees arising from infringement of the parking ticket rules, in order to assess whether the existence of such elements could mean that the nature of such a legal relationship no longer falls within the Brussels Recast and Service Regulations (2).

(1)    The nature of the legal relationship between the parties

68.      In line with the ‘pointers’ summarised in point 66 of this Opinion, it is first necessary to establish the legal relationship that forms the basis of the present dispute. The relationship, between the applicant and the defendant, at least at face value, appears to relate to a parking contract. That is indeed the basis. In line with the case-law, (42) the relationship to be examined is not ‘upstream’ as between the city of Zadar and the applicant, that is to say, the appointing authority and the appointee.

69.      Next, it is necessary to establish the framework applicable to private parties in such types of relationship. The Croatian Government explains that the contract between the applicant and the driver of the car owned by the defendant is of a private law nature. Together with the applicant, that government then makes general reference to the Zakon o parničnom postupku (Croatian Code on Civil Procedure), the Zakon o obveznim odnosima (Law on Obligations), and the Ovršni zakon (Law on Forced Execution). However, it does so without identifying the applicable provisions. Therefore, it is not possible to examine whether the obligations and consequences arising from that private law contract are characteristic of a civil law claim. That falls to the national court to determine. However, since there is nothing in the court file to suggest otherwise, and for the purposes of the present exercise, it seems reasonable to assume that that is the case.

70.      Having established (and adopted) that reference framework, the next step is to determine whether the substantive or procedural aspects of the present dispute depart from the framework as a result of an apparent exercise of public powers.

71.      In this regard, none of the provisions cited by the parties or interveners indicate that the proceedings underlying the present request for a preliminary ruling operate outside the framework applicable to private individuals, or that they are characterised by (a unilateral) exercise of a public power by either of the parties to that arrangement. Indeed, there is no indication that, after issuing a ticket, the applicant is somehow able to issue an enforcement order. (43) As the Croatian Government confirmed in reply to a written question, which is, of course, subject to verification by the referring court, the applicant must use the competent notary (or court) in the same way as any other private individual.

72.      On the basis of those elements, the enforcement of the (contractual) obligations at issue appears to be of a civil law nature. (44)

73.      It is true, as the Slovenian Government observes, that, at its origin, the present enforcement action is based on a public power prerogative on the part of the city of Zadar to establish the areas and conditions of parking on its territory, and to appoint the applicant to its role for the management and enforcement thereof.

74.      However, as the Commission correctly notes, the existence of a public power ‘upstream’ cannot always be regarded as decisive vis-à-vis the nature of the contractual obligations ‘downstream’. After all, those contractual obligations are subjective in nature in relation to the applicant and the defendant, (45) while the enforcement action is, it appears, conducted under a civil law framework and, if I understand correctly, is limited to those subjective obligations alone.

75.      There is nothing in the court file to suggest that that enforcement is somehow tainted by an ‘acta iure imperii’ on the part of the city of Zadar, merely by way of its involvement in the applicant’s ownership structure. (46) Nor is there any indication that the applicant is exercising a public power on behalf of the city of Zadar. In Croatia, the maintenance and management of parking areas can just as easily be performed by private entities as the activity of parking itself. That was confirmed by the Croatian Government in reply to a written question posed by the Court. Whether that activity is carried out on public land or not does not change the enforcement nature of the contractual obligations arising therefrom, so long as that enforcement is carried out under Croatian civil law and without the exercise of public powers.

76.      From that point of view, the claimant and the defendant are acting as two private persons, within the powers normally exercised by those persons, making them subject to the same procedural rules as everyone else. (47) That is why there appears to be no deviation from the ‘reference framework’ in the circumstances of the present case.

77.      For the reasons set out above, the ‘legal relationship’ determination reveals no signs of an exercise of public powers, with the consequence that jurisdiction under Article 1(1) of the Brussels Recast and Service Regulations has been established.

(2)    The daily ticket requirement and unilateral fees as an indication of exercise of public power

78.      The referring court and the German and Slovenian Governments consider that the above conclusions may be affected by the existence of ‘punitive elements’ in the present case. Those would be present in the additional fees that arise. They also argue that the requirement to pay for a daily ticket is equivalent to a penalty.

79.      I am not convinced by those concerns in the present case.

80.      It is important to recall that the determination of whether a dispute is relates to ‘civil and commercial matters’ is an assessment of jurisdiction. It is within that context that the Court in Pula Parking explained that jurisdiction was present given the absence of ‘any penalties that may be considered to result from a public authority act’. The Court also then explained that, with regard to the substance, the parking debt ‘is not of a punitive nature but constitutes, therefore, mere consideration for a service provided’. (48)

81.      The applicant and the Croatian Government note that the cost of the daily ticket is determined prior to the use of the parking area, is displayed on vertical signs and is published in the official gazette of the city of Zadar. It thus forms part of a series of conditions for parking in that area. One-sided though those conditions may be, the requirement to pay for a daily ticket could be considered as just another ‘default clause’ forming part of the conditions of parking and which is tacitly accepted by the person concerned. Those obligations were not unilaterally imposed or adjusted as a result of the involvement of a public entity. (49) In fact, the same default clauses are commonly used for private parking facilities. The enforcement of that parking debt, as the Croatian Government explains, does not therefore distinguish itself from the enforcement of any other private law debt. The jurisdictional ‘link’ is not broken and the exercise of public powers cannot readily be presumed.

82.      As regards the additional fees arising from the parking debt, the conclusion remains the same. The applicant and the Croatian Government have provided a detailed breakdown of the origin of those costs. (50) The Croatian Government also refers to Article 13 of the Organisation Decision for the origin of those conditions. Those elements are, naturally, for the referring court to verify. However, having had regard to the breakdown of those fees, it is not readily apparent how they could, individually or collectively, be classified as an act of a public authority. Those conditions appear to relate to the cost of enforcing an outstanding debt in another language in another Member State. It is natural that a cross-border enforcement, even within the Union, brings about ancillary costs which should be able to be ‘passed on’ the rightful debtor of the principal sum. None of those costs seem to arise from the exercise of a public power, even though they are inevitably higher due to the specific enforcement procedure established under Croatian law.

83.      In summary, the two elements relied on by some of the interveners do not change the rather clear nature of the legal relationship between the applicant and the defendant. Put bluntly, one-sided or even unfair contractual terms cannot suddenly indicate the exercise of public power simply because they are not consumer-friendly. The exercise of public power is qualitatively something other than the mere possession or even the (ab)use of bargaining power. If it were otherwise, then consumer contracts would also find themselves suddenly be excluded from the scope of the Brussels Regime, since a number of them contain a fair amount of non-negotiable unilateralism coupled with punitive elements. But few would suggest that they are to be qualified, as regards those non-negotiable clauses, as the exercise of public power by companies and thus outside the scope of the concept of ‘civil and commercial matters’.

(3)    Interim conclusion

84.      No convincing arguments were presented in the course of these proceedings which would cause one to reconsider the conclusion already reached by the Court in Pula Parking. The relationship at issue between the applicant and the defendant seems to satisfy the jurisdictional requirements in order to come within the scope of Article 1(1) of the Brussels Recast and Service Regulations.

85.      It is true that, in some Member States, the conditions for parking in public streets in municipalities and the possible penalties for infringement of those conditions are a matter of administrative law. However, if anything, this fact shows the natural limitations of using an approach based on subject matter in order to determine what constitutes civil or commercial matters within the Brussels Regime. Diversity means that, within some reasonable limits, the fact that (a) given Member State(s) see(s) such a matter as administrative does not mean that the rest of Europe must follow suit.

86.      Finally, it ought to be recalled that the fact that relationships, such as those in the main proceedings, could indeed be deemed as relating to ‘civil and commercial matters’ does not mean that other conditions for the applicability of either the Brussels Recast or Service Regulation are, in fact, fulfilled. With regard to the Brussels Recast Regulation, the Court has already stated in Pula Parking that notaries in Croatia cannot be deemed as ‘courts’ for the purposes of that regulation. (51) In the following section, I will consider a similar assessment under the Service Regulation.

87.      I thus propose that the Court should reply as follows:

‘The concept of “civil and commercial matters”, as laid down in Article 1(1) of Regulation 1215/2012 and Article 1(1) of Regulation No 1393/2007, must be interpreted as requiring the legal relationship which characterises the underlying dispute, assessed against the framework generally applicable to private parties in such situations, not to be characterised by a unilateral exercise of public powers by one of the parties to the dispute.

While it falls to the national court to determine whether those conditions are satisfied, the circumstances of the present case do not appear subject to such an exercise of public powers.’

3.      Question 1 and the first part of Question 3

88.      Question 1 and the first part of Question 3 posed by the referring court concern whether notaries in Croatia may themselves effect service of writs of execution drawn up on the basis of an ‘authentic document’. Referring to the judgment of the Court in Pula Parking, the referring court harbours doubts that that is possible. While not contesting that position, the Croatian Government and the Commission argue, however, that notaries in Croatia may nonetheless make use of the possibility contained in Article 16 of the Service Regulation to transmit ‘extrajudicial documents’.

89.      In the light of those arguments, Question 1 and the first part of Question 3 highlight two aspects: (i) whether notaries in Croatia may transmit ‘judicial documents’, within the meaning of the Service Regulation; and, if so, (ii) whether notaries in Croatia can fall back on the parallel means of service permitted by Article 16 of the Service Regulation (that is, the service of ‘extrajudicial documents’).

(a)    Transmission of ‘judicial documents’ by notaries in Croatia

90.      As part of its Article 1(1), the Service Regulation refers to the transmission of ‘judicial documents’. While no case-law on the interpretation of the concept of ‘judicial documents’ exists, it is clear from the wording thereof that such documents must be issued by the ‘judiciary’ of a Member State, which relates to the transversal EU law concepts of ‘court’ or ‘tribunal’ and the extensive case-law of the Court thereon. (52)

91.      As I suggested in detail in my Opinion in Pula Parking, and as was confirmed by the Court, the nature, type of activity, and procedure of, and before, notaries in Croatia leading to the issue of a writ of execution in cases like the present one are not such as to satisfy the requirements for the concept of ‘court’ within the meaning of the case-law and the Brussels Recast Regulation. (53)

92.      That understanding is further strengthened by a recent order of the Court in which writs of execution issued by notaries in Croatia were deemed not to fall per se within the scope of the Brussels Recast Regulation, since they are generally not considered to be ‘judicial’ decisions. (54)

93.      I see no reason, and no arguments have, in fact, been put forward during the course of the present proceedings, as to why the same conclusions should not also apply for the Service Regulation. Therefore, notaries in Croatia, when issuing writs of execution in cases like the present one, do not act as a court and thus are unable transmit ‘judicial documents’ within the meaning of Article 1(1) of the Service Regulation.

(b)    Transmission of ‘extrajudicial documents’ by notaries in Croatia

94.      The applicant, the Croatian Government and the Commission take the position that notaries in Croatia may serve ‘extrajudicial documents’ within the meaning of Article 16 of the Service Regulation.

95.      That provision concerns the transmission of ‘extrajudicial documents’ for service in another Member State. (55) It does not define what constitutes an ‘extrajudicial’ document. (56)

96.      Like other provisions of EU law which are devoid of reference to the national legal provisions of the Member States, the starting point for the concept of ‘extrajudicial documents’ should be the autonomous nature of EU law. It should be interpreted broadly and not be limited to documents arising from legal proceedings alone. (57) Thus, the Court in Tecom Mican and Arias Dominguez held that the concept of ‘extrajudicial documents’ may be taken to cover ‘both documents drawn up or certified by a public authority or official and private documents of which the formal transmission to an addressee residing abroad is necessary for the purposes of exercising, proving or safeguarding a right or a claim in civil or commercial law’. (58)

97.      However, under Article 2 and Article 4(1) of the Service Regulation, the service of documents is, in principle, to be effected between the ‘transmitting agencies’ and the ‘receiving agencies’ designated by the Member States. (59) The operation of that system requires compliance with the ‘designation obligation’ under Article 2 of the Service Regulation. Pursuant to its first subparagraph, ‘each Member State shall designate the public officers, authorities or other persons’ that may act as ‘transmitting agencies’ competent to transmit judicial or extrajudicial documents for service in another Member State. (60) Pursuant to the fourth subparagraph of that article, the Member State concerned must provide the Commission with detailed information on the designated body.

98.      In the present case, the referring court’s order notes that the relevant notary served the writ of execution on the defendant through the Croatian postal services by means of registered letter with acknowledgement of receipt. In the view of the applicant, the Croatian Government and the Commission, such service is permitted through a combined reading of Article 14 and 16 of the Service Regulation.

99.      Those positions are only partially correct.

100. The Court is no stranger to the discussion on whether notaries of a Member State may act as ‘transmitting agencies’ to serve ‘extrajudicial documents’. The Commission refers to the Court’s judgments in Tecom Mican and Arias Dominguez and Roda Golf and Beach Resort. Those judgments concerned whether Spanish notaries could use of Article 16 of the Service Regulation to act as ‘transmitting agencies’ for such service. (61) However, the Court’s findings in those cases were made in the abstract to confirm that documents transmitted by a notary may be deemed ‘extrajudicial documents’. Those judgments do not concern the situation in which a Member State failed to act pursuant to Article 2(1) of the Service Regulation to designate ‘notaries’ as ‘transmitting agencies’.

101. That, however, is precisely what is at issue in the present case.

102. As is apparent from the replies of the Croatian Government and the Commission to a question posed by the Court, when acting pursuant to its notification obligation under Article 2(4) of the Service Regulation, the Croatian Government did not designate notaries as ‘transmitting agencies’. However, such designation is vital for the purposes of Article 16 of the Service Regulation. Indeed, by virtue of that article’s specific reference to the transmission of ‘extrajudicial documents’ having to be made ‘in accordance with the provisions of this regulation’, such service is inevitably tied to the notification requirements in Article 2 of the Service Regulation. That is also confirmed by recital 6 of the Service Regulation, which indicates that the simplified use of the framework established by that regulation is only available to the transmission of documents ‘directly … between local bodies designated by the Member States’. This implies that only bodies designated to perform those functions ‘ratione temporis’ may transmit extrajudicial documents by means of the Service Regulation. (62) Otherwise, the objective and reliability of the documents served by that means would be undermined. (63)

103. Given that it is undisputed that notaries in Croatia did not appear on the list of designated bodies during the period of enforcement of the underlying debt, the notary in Pula could not have made use of Article 16 of the Service Regulation to effect valid service of the writ of execution based on an ‘original document’ as an ‘extrajudicial document’ under the Service Regulation. That notary also could not have used the Croatian postal service for that purpose since Article 14 of the Service Regulation becomes applicable to ‘extrajudicial documents’ only where the conditions of Article 16 thereof are satisfied. (64)

104. Subject to verification by the referring court, the notary should have made use of the intermediary of the Trgovački sud u Zadru (Commercial Court, Zadar) so as to benefit from the simplifications of service provided for by the Service Regulation. (65) Since that notary clearly did not do so, the service effected in the present case must be deemed inadmissible for the purposes of the Service Regulation.

(c)    Interim conclusion

105. For the reasons set out above, I propose that the Court answer Question 1 and the first part of Question 3 raised by the referring court as follows:

‘Regulation No 1393/2007 must be interpreted as meaning that, in order for a writ of execution based on an “authentic document” to qualify as a “judicial document” within the meaning of Article 1(1) of that regulation, the issuing entity must be a judicial body of a Member State forming part of its judicial system.

Articles 2 and 16 of Regulation No 1393/2007 must be interpreted as meaning that, where a Member State has failed to designate notaries as “transmitting agencies” within the meaning of Article 2(1) of that regulation, those notaries cannot transmit “extrajudicial documents” for service to another Member State under the provisions of that regulation.’

4.      Questions 5 to 7

106. By Questions 5 to 7, the referring court enquires essentially as to the nature of the activity at issue for the purposes of deciding whether it concerns matters relating to a tort or rights ‘in rem’ (a), or matters relating to a contract (b) under the Brussels Recast Regulation. I shall assess those options in turn.

(a)    Tort or rights in rem?

107. The applicant, the Croatian Government and the Commission all take the position that the Croatian courts have ‘special’ jurisdiction by virtue of Article 7 of the Brussels Recast Regulation. Those parties also agree that the matter at issue is not one of ‘tort, delict or quasi-delict’. The referring court raises the question of whether the parking could relate to a special type of ‘in rem’ lease contract, and thus be covered by Article 24 of the Brussels Recast Regulation.

108. Could the non-payment of a parking ticket for parking on a public road amount to a matter ‘relating to tort, delict or quasi-delict’? It does not appear to be the case.

109. First, it is undisputed that the present case concerns the enforcement of a debt based on a breach of (an arguably tacit and implied) contract. In this regard, the case-law excludes ‘matters relating to a contract’ from Article 7(2) of the Brussels Recast Regulation. (66) On that basis, the dispute would fall outside the scope of that provision. Second, even if that disqualifying case-law could be distinguished, the debt, the enforcement of which is sought, would still be regarded as a consequence of the non-performance of the initial contractual obligations. (67) So, again, and in any event, the action would fall outside the category of ‘matters relating to tort, delict or quasi-delict’.

110. Next, consideration must be given to the referring court’s argument that the present case possibly may concern a special type of lease contract within the meaning of Article 24 of the Brussels Recast Regulation.

111. In this regard, it suffices to recall that the case-law on that provision requires that the extent, content, ownership, or possession of the immovable property, or other rights in rem, be at issue. (68) On the basis of the facts present in the court file, there is no indication that either possession or other rights ‘in rem’ in the parking space were transferred to the defendant upon parking there (or that they are, in fact, at issue). Moreover, the article’s raison d’être militates against such an interpretation. (69) Therefore, the Commission correctly observes that the present case is also not covered by Article 24 of the Brussels Recast Regulation.

(b)    The reason why the matter relates to a contract

112. The dispute falls in fact within Article 7(1) of the Brussels Recast Regulation.

113. The concept of ‘matters relating to a contract’ within the meaning of that provision (being an autonomous concept of EU law) requires the Court to look at an objective cause of action. (70) This means that where the non-performance of a contract is relied on to support the claimant’s action, all obligations under that contract must be considered to come within the scope of ‘matters relating to a contract’. (71) In fact, jurisdiction under Article 7(1) of the Brussels Recast Regulation may exist even where one of the parties denies the existence of a contract, (72) so long as it is not clear that free consent was absent from the legal relationship between one person and another (in other words, a negative standard). (73)

114. While that is of course for the referring court to determine, those conditions seem satisfied in the present case.

115. It is apparent from the grounds of the action described by the referring court that a contract was concluded under Croatian law when the driver of a leased car owned by the defendant chose to make use of the relevant parking space to park his car. From a mere reading of Article 7 of the Organisation Decision it would appear, subject to verification, that that contract required the payment of a valid parking ticket for the entire duration of parking. Such a ticket was not on display upon inspection. (74) The applicant thus claims non-performance of an arguably essential provision of the contract. However, neither party claims that no contract in fact existed nor that consent had not been freely given to the conditions of parking themselves.

116. It is worth highlighting that the issue of ‘free consent’ at the stage of contract formation is to be distinguished from the issue of whether the terms underlying a contract are fair. It is certainly possible to freely consent to a contract that is ‘unfair’ in terms of the clauses it contains and the overall balance of rights and obligations between the parties. (75) This is, ultimately, why there is an entire area of law called ‘consumer protection’, which is not based on the premiss that even if there are some unfair clauses, one or other of the parties did not freely consent to those clauses and thus no contract was concluded.

117. From that perspective, Article 7(1) of the Brussels Recast Regulation could obviously be applicable.

118. Next, it must be assessed whether the contract at issue could concern the provision of a service. The referring court and the Commission express doubts in this regard. According to them, the mere provision of the parking space is too marginal to be capable of amounting to a ‘service’. They also point to the need to interpret Article 7(1)(b) of the Brussels Recast Regulation restrictively.

119. It is true that the case-law on the concept of ‘services’ implies, at the very least, that the party who provides the service carries out a specific activity in return for remuneration. (76) However, I do not see why such an activity could not be said to exist in the present case. That is to say that the applicant’s activity, which qualifies as a ‘service’, is the making available of a designated parking space in a parking area on a public road in the city of Zadar. It is the possibility to park in that space which is offered by the applicant, and which the driver of the car owned by the defendant accepts in return for compensation. (77)

120. Consequently, the provision of a parking space could indeed amount to a ‘service’ within the meaning of Article 7(1)(b), second indent, of the Brussels Recast Regulation.

121. But, even if that were not the case, in accordance with Article 7(1)(c) of the Brussels Recast Regulation, Article 7(1)(a) thereof is applicable to contracts which are neither contracts for the ‘sale of goods’ nor contracts for the ‘provision of services’. On that basis, the contract is, in any event, covered by that provision, without it strictly being necessary to go into further detail vis-à-vis its exact nature.

122. Accordingly, from the perspective of EU law, there is nothing to preclude the conclusion of a contract through the mere activity of parking a car, even in the absence of a ticket.

123. In the light of the foregoing considerations, I suggest that the Court answer Questions 5 to 7 as follows:

‘Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that parking a car in a designated parking space on a public road can, under the legal system of a Member State in which the issuing of parking tickets and the collection of parking fees is entrusted to a private entity, constitute a “matter relating to a contract”, as referred to in that provision.’

C.      A post scriptum

124. This case concerns jurisdictional matters relating to a parking ticket enforced by notaries in Croatia. Once again. In view of the number of cases coming from Croatia concerning this issue,(78) together with the statement by the referring court in the present case in line with statements made by other Croatian courts in previous cases on the number of such cases in fact pending before the national courts, it would appear that these cases hint at structural issues which raise a number of question.

125. I suspect that the unease felt in other Member States, and, apparently, by some of the national courts, relates to what might best be described as a ‘double singularity’ of an institutional and procedural choice of Croatia. First, what would more frequently in other Member States be considered as an administrative matter has been ‘outsourced’ to a private company. Second, the enforcement (execution) of a private law claim created in this way is then entrusted to persons apparently not forming part of the normal judicial system of a Member State in a procedure that, in the interest of disburdening the courts, has been considerably ‘economical’ with the procedural rights of the would-be defendants. (79)

126. If either of those choices were considered in isolation, they would perhaps not attract too much attention. After all, ‘privatisation’ of some elements of public power takes place at all levels, from the modalities of the use of public space (including public parking), (80) to private debt enforcement or even to attempts at establishing and operating private prisons. Equally, the disburdening of courts has been the buzzword for a number of years, especially as far as the simplification of procedures before courts for small or unopposed claims is concerned.

127. It is, however, the combination of these two elements which appears to be viewed with some unease by other Member States, and also, it appears, in Croatia, judging at least from the amount of litigation these issues have generated over a number of years. To date, all these cases have ostensibly arisen regarding issues of jurisdiction. They hide, however, a number of deeper substantive issues which continue to be expressed by the interveners to these cases as jurisdictional matters, (81) since that is where the cases stand at present. They nonetheless give expression to a deeper substantive unease about what may be perceived as a rather unusual procedural and institutional arrangement chosen by a Member State for a certain type of claim.

128. Since I am quite convinced that these issues are far from resolved and will inevitably be referred back to this Court again, I would like to use the relative freedom extended to an Advocate General by the Treaties to assist not only the Court of Justice, but also, indirectly, the national courts, by focusing on three aspects in which the default procedural autonomy of a Member State might find its limits, which will then need to be assessed by the national courts.

129. First, there may be some limits to ‘privatisation’ or ‘outsourcing’ where a choice of system and procedure goes beyond what might be acceptable under the heading of national procedural autonomy and starts to deviate too much from the common core and tradition of the systems of the other Member States. Those limits will generally be expressed in the context of the principles of equivalence and effectiveness, (82) objections to the duty to recognise or enforce on the basis of public policy, (83) and the equality amongst the citizens of the Union in their equal access to legal protection, independently or in conjunction with their right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union.

130. Arguably, such objections are likely to be expressed where a Member State delegates an essentially public service to a private entity, attaches to it the fiction of concluding a civil law contract together with a non-negligible price tag for its infringement, (84) and then, in order to enforce it, seeks to rely on an instrument of EU law fundamentally designed for wholly private disputes by a body which is not immediately viewed as part of that Member States’ judicial system. In short, such double privatisation may give rise to alienation and as a consequence, a refusal to consider such types of decision as enforceable in other Member States.

131. Second, any possible obstacle to the free movement of persons under EU law may be assessed from a number of angles, starting with the location of the public parking areas and the implied conditions attached to parking there: perhaps residents of Croatia are issued a vignette and paid parking is necessary only for non-residents; perhaps the information provided at the car park is insufficient to identify the exact parking conditions; and perhaps the alleged ‘preference’ of paying an hourly parking fee, as insisted on by the Croatian Government, might not be readily accepted if all public parking areas are located near the main hotel district or tourist attractions. (85)

132. Similarly, I certainly do not claim to have a comprehensive understanding of the Croatian notarial system. In general, however, I would be sceptical of any system intended to implement a simplified cross-border enforcement of allegedly unpaid debts which compensates the ‘enforcer’ on a royalty, revenue, or profit-sharing basis per operation, and which thus provides incentive to the enforcer to put a swift execution above due process. If, in addition, the final fee is not commensurate to the initial debt (in this instance, more than twenty times the original value of the daily ticket), it seems to me that serious questions remain unanswered.

133. Third, there is the question of protection of natural persons as consumers and, in general, the application of EU consumer protection legislation both at the stage of jurisdiction, (86) but also when assessing the substance of such claims. (87) In the present case, such issues do not arise since the applicant is a legal person. However, when a natural person enters into a contract with a legal person designated by the State or public bodies, even on a voluntary basis, should the law not consider the natural person as ‘vulnerable’ in view of the fact that he or she is merely an ‘average’ consumer, and thus apply a stricter standard of review, (88) especially if the public power entrusted to a private person involves control of something that looks a lot like a monopoly or dominance in the provision of certain services? In my view, in such situations, the competent courts should pay even greater attention to that potential unfairness where such claims are enforced cross-border, through a private system with an compensation structure for the ‘enforcer’ which appears to contain incentives. (89)

134. In conclusion, I certainly do not think that EU law would preclude the privatisation of the management of parking on public roads. Nor does it preclude a number of institutional and procedural choices for the simplified enforcement of debt. However, ‘unusual’ institutional choices are bound to have rather unusual procedural consequences within a system of simplified cooperation which is based on standardised procedures. Thus, if the public domain suddenly becomes private, then the protection that would normally be applicable to private/civil transactions, becomes equally applicable. That will be the case, a fortiori, in scenarios in which a certain institutional structure starts being perceived by the relevant partners in the other Member States, rightly or wrongly, less as a disinterested law enforcement umpire and more of a public law generated cross-border debt collection business.

V.      Conclusion

135. I propose that the Court answer Questions 1 to 3 and 5 to 7 referred for a preliminary ruling by the Visoki trgovački sud Republike Hrvatske (High Commercial Court of the Republic of Croatia) as follows:

Question 1 and the first part of Question 3

Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 must be interpreted as meaning that, in order for a writ of execution/enforcement based on an ‘authentic document’ to qualify as a ‘judicial document’ within the meaning of Article 1(1) that regulation, the issuing entity must be a judicial body of a Member State forming part of its judicial system.

Articles 2 and 16 of Regulation No 1393/2007 must be interpreted as meaning that, where a Member State has failed to designate notaries as ‘transmitting agencies’ within the meaning of Article 2(1) of that regulation, those notaries cannot transmit ‘extrajudicial documents’ for service to another Member State.

Question 2 and the second part of Question 3

The concept of ‘civil and commercial matters’, as laid down in Article 1(1) of Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Article 1(1) of Regulation No 1393/2007, must be interpreted requiring the legal relationship which characterises the underlying dispute, assessed against the framework generally applicable to private parties in such situations, not to be characterised by a unilateral exercise of public powers by one of the parties to the dispute.

While it falls to the national court to determine whether those conditions are satisfied, the circumstances of the present case do not appear subject to such an exercise of public powers.

Questions 5 to 7

Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that parking a car in a designated parking space on a public road can, under the legal system of a Member State in which the issuing of parking tickets and the collection of parking fees is entrusted to a private entity, constitute a ‘matter relating to a contract’, as referred to in that provision.

1      Original language: English.

2      Previously on unpaid parking tickets and notaries in Croatia, see, amongst others, judgments of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193); of 9 March 2017, Zulfikarpašić (C‑484/15, EU:C:2017:199); and of 7 May 2020, PARKING and Interplastics (C‑267/19 and C‑323/19, EU:C:2020:351). See also orders of 11 April 2019, Hrvatska radiotelevizija (C‑657/18, not published, EU:C:2019:304), and of 6 November 2019, EOS Matrix (C‑234/19, not published, EU:C:2019:986).

3      Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

4      Regulation (of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

5      See my Opinions in Nemec (C‑256/15, EU:C:2016:619, points 23 to 54), and in Pula Parking (C‑551/15, EU:C:2016:825, points 28 to 36).

6      Judgments of 15 December 2016, Nemec (C‑256/15, EU:C:2016:954, paragraphs 21 to 27), and of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraphs 24 to 28).

7      See, in this regard, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (Disciplinary regime for judges) (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 43 to 48 and the case-law cited).

8      See judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).

9      Ibid., paragraph 28 and the case-law cited.

10      See, for instance, Article 1(1) of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p. 1) (which however refers to ‘civil or commercial matters’); Article 2(1) of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15); Article 2(1) of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ 2007 L 199, p. 1); Article 1(2) of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ 2008 L 136, p. 3); Article 1(2) of Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ 2003 L 26, p. 41); Article 1(1) of Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ 2001 L 174, p. 25); and Article 2(1) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (OJ 2014 L 189, p. 59).

11      Thus retaining the original choice not to give that concept a positive definition with a view to accommodating varying national categorisations. See Report by Mr P. Jenard on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1979 C 59, p. 1), pp. 9 to 10. See also the Opinion of Advocate General Reischl in LTU (29/76, EU:C:1976:121, p. 1558).

12      See, for the first case describing the ‘autonomous’ nature of the concept, judgment of 14 October 1976, LTU (29/76, EU:C:1976:137, paragraph 3).

13      Those are the so-called ‘Brussels Convention’ ( Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36)); the ‘1988 Lugano Convention’ (Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1988 L 319, p. 9)); the ‘Brussels I Regulation’ (Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)); the ‘2007 Lugano Convention’ (Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2007 L 339, p. 3)); and the Brussels Recast Regulation. English version published later,

14      See Article 1(1) of the Brussels Convention; the 1988 Lugano Convention; the Brussels I Regulation; the 2007 Lugano Convention; and the Brussels Recast Regulation.

15      See, most recently, judgment of 16 July 2020, Movic and Others (C‑73/19, EU:C:2020:568, paragraph 32).

16      See, for the first time that the Court announced this approach, without however applying it, judgment of 14 October 1976, LTU (29/76, EU:C:1976:137, paragraphs 3 and 5). 

17      See Opinion of Advocate General Warner in Rüffer (814/79, EU:C:1980:229, pages 3827 to 3831).

18      Judgment of 16 December 1980, Rüffer (814/79, EU:C:1980:291, paragraph 11).

19      Ibid., paragraph 12.

20      Ibid., p. 3812, paragraph 1.

21      See, principally, judgments of 21 April 1993, Sonntag (C‑172/91, EU:C:1993:144, paragraph 36), and of 15 February 2007, Lechouritou and Others (C‑292/05, EU:C:2007:102, paragraphs 37 to 38). See also the Opinion of Advocate General Ruiz-Jarabo Colomer in Lechouritou and Others (C‑292/05, EU:C:2006:700, points 54 to 56).

22      Opinion of Advocate General Trstenjak in Sapir and Others (C‑645/11, EU:C:2012:757, point 42).

23      Judgments of 11 April 2013, Sapir and Others (C‑645/11, EU:C:2013:228, paragraphs 35 to 37) (concerning a recovery action for an amount unduly paid under the German law on compensation to victims of the Nazi regime); of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 37) (concerning a tort action under English law); and of 28 July 2016, Siemens Aktiengesellschaft Österreich (C‑102/15, EU:C:2016:607, paragraphs 35 to 38 and 42) (concerning a fine imposed for infringement of Hungarian competition law).

24      Judgment of 23 October 2014  (C‑302/13, EU:C:2014:2319, paragraphs 18, 28 and 33).

25      Judgment of 1 October 2002, Henkel (C‑167/00, EU:C:2002:555, paragraph 30). See also judgments of 14 November 2002, Baten (C‑271/00, EU:C:2002:656, paragraphs 31 to 36), and of 15 May 2003, Préservatrice Foncière Tiard (C‑266/01, EU:C:2003:282, paragraphs 32 to 36).

26      As clearly spelled out, for instance, in the recent judgments of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 34); of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraph 48 and the case-law cited); and of 7 May 2020, Rina (C‑641/18, EU:C:2020:349, paragraph 35).

27      See judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraph 49 and the case-law cited). See also judgment of 7 May 2020, Rina (C‑641/18, EU:C:2020:349, paragraph 38), which assigned that task to the national court.

28      See judgment of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 55).

29      Judgment of 11 June 2015, Fahnenbrock and Others (C‑226/13, C‑245/13 and C‑247/13, EU:C:2015:383, paragraph 51).

30      Ibid., paragraphs 46 and 58.

31      Listed above in footnote 10 of this Opinion.

32      In fact, the preparatory documents of only two of those instruments actually indicate that a similar interpretation as that in the Brussels Regime was sought. See Commission proposal for a regulation of the European Parliament and of the Council Creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters (COM(2011) 445 final), p. 5, and Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings (COM(2002) 13 final), p. 5?.

33      That is not to say that no case-law relating those instruments exists. See, for instance, judgment of 6 September 2018, Catlin Europe (C‑21/17, EU:C:2018:675), relating the European order for payment procedure under Regulation (EC) No 1896/2006 (OJ 2006 L 399, p. 1).

34      See above, footnote 28 of this Opinion.

35      Conversely, where a dispute is not brought against a conduct or procedure which involves a ‘direct’ exercise of public powers (such as by one of the parties), the matter falls within the scope of ‘civil and commercial matters’. See judgments of 28 April 2009,  Apostolides (C‑420/07, EU:C:2009:271, paragraph 45), and of 18 October 2011, Realchemie Nederland (C‑406/09, EU:C:2011:668, paragraph 42).

36      A consequence which, at least before the advent of the ‘autonomous’ definition in older case-law of the Court, was not apparently even contemplated by the authors of the Brussels Regime (see above, footnote 11).

37      See, most notably, judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraphs 35 and 37). See also judgments of 14 November 2002, Baten (C‑271/00, EU:C:2002:656, paragraphs 30 to 31); of 15 May 2003,  Préservatrice Foncière Tiard (C‑266/01, EU:C:2003:282, paragraphs 22 to 23); and of 5 February 2004, Frahuil (C‑265/02, EU:C:2004:77, paragraphs 19 to 20).

38      See, for example, the judgment of the Bundesgerichtshof (German Federal Court of Justice) (BGH, 16.9.1993, Sonntag, IX ZB 82/90, p. 21) in response to the Court’s judgment of 21 April 1993, Sonntag (C‑172/91, EU:C:1993:144), which held that enforcement of the Italian judgment pursuant to the Brussels I Regulation would necessarily affect the foundations of the entire German system of social accident insurance. It therefore departed from the ruling of the Court.

39      See, most recently, judgment of 16 July 2020, Movic and Others (C‑73/19, EU:C:2020:568, paragraph 34).

40      As recently recalled, for example, in the Opinion of Advocate General Szpunar in Movic and Others (C‑73/19, EU:C:2020:297, point 35).

41      But also with the second, now prevailing strand of the ‘subject matter’ definition outlined above in points 48 and 49 of this Opinion that also primarily refers to the categorisation as carried out by national law.

42      Above, point 62 of this Opinion.

43      See also the judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 37).

44      Ibid., paragraph 35 and my Opinion in the same case (EU:C:2016:825, points 49 to 51).

45      As the Court has already recognised in judgment of 18 October 2011, Realchemie Nederland (C‑406/09, EU:C:2011:668, paragraph 42).

46      See, in that regard, my Opinion in Pula Parking (C‑551/15, EU:C:2016:825, point 51 and the case-law cited).

47      See, similarly, judgment of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 44).

48      Judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 36).

49      See judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:956, paragraph 42).

50      As reproduced in point 20 of this Opinion.

51      Judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 59).

52      See my Opinion in Pula Parking (C‑551/15, EU:C:2016:825, points 68 to 107).

53      See my Opinion in Pula Parking (C‑551/15, EU:C:2016:825, points 108 and 114) and judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraphs 56 to 59). See also judgment of 9 March 2017, Zulfikarpašić (C‑484/15, EU:C:2017:199, paragraph 50).

54      Order of 11 April 2019, Hrvatska radiotelevizija (C‑657/18, not published, EU:C:2019:304, paragraph 27).

55      For background on the inclusion of that concept in the 1896 Hague Convention on Civil Procedure, see Knöfel, O.L., ‘Zustellung privater Schriftstücke über die Europäsche Zustellungsverordnung?’, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax),  2017, pp. 249-250.

56      Nor did its predecessors; see Article 16 of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters (OJ 1997 C 261, p. 2); and Article 16 of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 2000 L 160, p. 37). Note that Regulation No 1348/2000 had set up a glossary of documents which could be served under the Service Regulation, with each Member State to designate those documents they deemed ‘servable’ by reference to their legal system. See Article 17(b) of Regulation No 1348/2000. That system of glossaries was not reproduced in the Service Regulation. See Opinion of Advocate General Bot in Tecom Mican and Arias Domínguez (C‑223/14, EU:C:2015:364, points 35 to 37).

57      Judgment of 25 June 2009, Roda Golf & Beach Resort (C‑14/08, EU:C:2009:395, paragraphs 49, 50 and 56 to 59). See also judgment of 11 November 2015, Tecom Mican and Arias Domínguez (C‑223/14, EU:C:2015:744, paragraphs 32 and 33).

58      See judgment of 11 November 2015 (C‑223/14, EU:C:2015:744, paragraph 44).

59      See judgment of 16 September 2015, Alpha Bank Cyprus (C‑519/13, EU:C:2015:603, paragraph 34).

60      See also Opinion of Advocate General Bot in Tecom Mican and Arias Domínguez (C‑223/14, EU:C:2015:364, point 33), which explains the origins of that system under the Hague Convention.

61      Judgment of 25 June 2009, Roda Golf & Beach Resort (C‑14/08, EU:C:2009:395, paragraph 59), and of 11 November 2015, Tecom Mican and Arias Domínguez (C‑223/14, EU:C:2015:744, paragraphs 26 and 33).

62      See recital 6 of the Service Regulation, which explains that Member States may decide over their designation or renewal of ‘transmitting’ and ‘receiving agencies’ every five years.

63      See recital 7 of the Service Regulation.

64      See judgment of 25 June 2009, Roda Golf & Beach Resort (C‑14/08, EU:C:2009:395, paragraph 60) .

65      As the Croatian Government’s and the Commission’s replies to a written question posed by the Court confirm, only the relevant municipal courts (općinski sud), the county courts (županijski sudovi), the commercial courts (trgovački sudovi), the High Commercial Court (Visoki trgovački sud) and the Supreme Court (Vrhovni sud Republike Hrvatske) of Croatia could have acted as ‘transmitting agencies’ for that country to transmit ‘extrajudicial documents’ under the Service Regulation during the period at issue.

66      See, for instance, judgment of 13 July 2006, Reisch Montage (C‑103/05, EU:C:2006:471, paragraph 2), and of 12 May 2011, Berliner Verkehrsbetriebe (C‑144/10, EU:C:2011:300, paragraph 30).

67      See judgment of 9 July 2020, Verein für Konsumenteninformation (C‑343/19, EU:C:2020:534, paragraph 28 and the case-law cited).

68      See judgment of 16 November 2016, Schmidt (C‑417/15, EU:C:2016:881, paragraph 30 and the case-law cited).

69      See the judgment of 15 January 1985, Rösler (241/83, EU:C:1985:6, paragraph 19). See also judgment of 14 December 1977, Sanders (73/77, EU:C:1977:208, paragraphs 15 and 16).

70      See, most recently, judgment of 26 March 2020, Králová (C‑215/18, EU:C:2020:235, paragraphs 41 to 44 and the case-law cited).

71      Judgment of 15 June 2017, Kareda (C‑249/16, EU:C:2017:472, paragraph 30 and the case-law cited).

72      Judgment of 4 March 1982, Effer (38/81, EU:C:1982:79, paragraphs 7 and 8).

73      See, for instance, judgment of 17 September 2002, Tacconi (C‑334/00, EU:C:2002:499, paragraph 24).

74      The lack of a valid parking ticket, or of any ticket, is not determinative of the conclusion of a contract. As the Court has held, the ticket itself is only the instrument which embodies the contract. See, in a similar sense, judgment of 7 November 2019, Kanyeba and Others (C‑349/18 to C‑351/18, EU:C:2019:936, paragraph 48).

75      Similarly to what was noted above in point 83, where not (dis)similar arguments were used to suggest that the matter was not civil or commercial. Just as bargaining inequality does not push a relationship per se outside the civil or commercial realm, so does the fact that the contract is, as to its nature, a one-sided, standard term contract to which the other party may only adhere, mean that there is no contract.

76      See judgment of 8 March 2018, Saey Home & Garden (C‑64/17, EU:C:2018:173, paragraph 38 and the case-law cited).

77      Failure to recognise the offer of parking in a particular place as a service would entirely denaturise a whole category of ‘passive’ services. See, to that effect, judgment of 4 October 2001, “Goed Wonen”(C‑326/99, EU:C:2001:506, paragraph 52).

78      For a list of its predecessor concerning the same issues, but with a number of them declared inadmissible, see above, footnote 2.

79      See my Opinion in Pula Parking (C‑551/15, EU:C:2016:825, points 111 to 113).

80      As a recent study by the French association of transport authorities shows, the exercise of public powers to set the modalities for parking and to delegate their management to a private entity is not uncommon among a number of Member States. See GART Study, La gestion du stationnement payant sur voirie en Europe – quels enseignements pour la France? (2016), pp. 20, 28, and 34 to 35.

81      As seen in this Opinion above in points 83 and 116.

82      See, in the field of judicial cooperation in civil matters, judgment of 8 November 2005, Leffler (C‑443/03, EU:C:2005:665, paragraph 50) and, most recently, judgment of 12 December 2019, Aktiva Finants (C‑433/18, EU:C:2019:1074, paragraph 29). For an application of those principles, see my Opinion in Dimos Zagoriou (C‑217/16, EU:C:2017:385, points 24 to 65).

83      See above, point 63 of this Opinion.

84      As set out above in point 21 of this Opinion.

85      It is not for me to question those alleged ‘preferences’. However, the court file appears to show that there is nothing preventing a car from being parked for a full day, or even longer, in the same spot. In fact, the Croatian Government appears to refer to that possibility in its reply to a written question posed by the Court. That is for the national court to verify. However, that arrangement does raise the necessary question of why, if all-day parking is possible, a daily ticket is not available for purchase, and whether such an arrangement is unfair or discourages a certain type of person from parking there.

86      Such as Articles 17 to 19 or ultimately Article 45(1)(e) of the Brussels Recast Regulation.

87      That is, potentially Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29); Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ 1998 L 80, p. 27); and Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

88      See, to that effect, the judgment of 16 July 1998, Gut Springenheide and Tusky (C‑210/96, EU:C:1998:369, paragraph 37), and of 16 May 1989, Buet and EBS (382/87, EU:C:1989:198, paragraph 13).

89      Given that this takes place ‘after a commercial transaction’, within the meaning of Article 3(1) of the Unfair Commercial Practices Directive.