OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 7 May 2019(1)
Case C‑347/18
Alessandro Salvoni
v
Anna Maria Fiermonte
(Request for a preliminary ruling from the Tribunale di Milano (District Court, Milan, Italy))
(Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Article 53 — Certificate certifying that the judgment delivered by the court of origin is enforceable — Procedure — Powers of the court of origin — Consumer protection — Article 47 of the Charter of Fundamental Rights of the European Union)
I. Introduction
1. Under the system established by Regulation (EU) No 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 (recast), (2) a judgment given by the courts of a Member State is to be recognised in the other Member States without any specific procedure. If enforceable in the Member State of origin, it will be enforceable in the other Member States without the need for an exequatur.
2. In order to enforce in a Member State a judgment given in another Member State, the applicant must nonetheless provide the competent enforcement authority with a copy of the judgment, and with a certificate — issued pursuant to Article 53 of Regulation No 1215/2012 — certifying that the judgment in question is enforceable and containing an extract of the judgment (‘the Article 53 Certificate’).
3. What exactly is the nature of that procedure and what are the powers of the court of origin in relation to it? Those are in essence the questions raised by the Tribunale di Milano (District Court, Milan, Italy) in the present reference for a preliminary ruling. In particular, that court enquires whether the court of origin tasked with issuing the Article 53 Certificate may, of its own motion, seek to ascertain whether the judgment whose enforcement is sought was issued in breach of the rules on jurisdiction over consumer contracts, so that it may, where appropriate, inform the consumer of any such breach and enable her to consider the possibility of opposing enforcement of the judgment in the Member State addressed.
II. EU law
4. Recital 26 of Regulation No 1215/2012 reads:
‘Mutual trust in the administration of justice in the Union justifies the principle that judgments given in a Member State should be recognised in all Member States without the need for any special procedure. In addition, the aim of making cross-border litigation less time-consuming and costly justifies the abolition of the declaration of enforceability prior to enforcement in the Member State addressed. As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed.’
5. Article 17(1) of Regulation No 1215/2012 provides:
‘In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7, if:
…
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.’
6. Under the terms of Article 18(2) of Regulation No 1215/2012, ‘proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled’.
7. Article 42(1) of Regulation No 1215/2012 states:
‘For the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with:
(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
(b) the certificate issued pursuant to Article 53, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest.’
8. Article 45(1) of Regulation No 1215/2012 provides:
‘On the application of any interested party, the recognition of a judgment shall be refused:
…
(e) if the judgment conflicts with:
(i) Sections 3, 4 or 5 of Chapter II where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant; …’
9. According to Article 46 of Regulation No 1215/2012, ‘on the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Article 45 is found to exist’.
10. Pursuant to Article 53 of Regulation No 1215/2012, ‘the court of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex I’.
III. Facts, procedure and the question referred
11. By application lodged on 3 November 2015, Mr Alessandro Salvoni, a lawyer based in Milan, asked the Tribunale di Milano (District Court, Milan) to issue Ms Anna Maria Fiermonte (who resides in Hamburg) with a payment order for an amount owed to him as consideration for the professional services rendered by him in connection with legal proceedings concerning a will.
12. On 26 October 2015, the Tribunale di Milano (District Court, Milan) issued a payment order for the sum of EUR 53 297.68, plus interest and costs (‘the payment order in question’).
13. Ms Fiermonte did not challenge the payment order in question, which became final. Mr Salvoni then requested the Tribunale di Milano (District Court, Milan) to issue the Article 53 Certificate with respect to that order.
14. However, following an internet search carried out of its own motion, and after reviewing the submissions of Mr Salvoni, the referring court came to the conclusion that: (i) the relationship between Ms Fiermonte and Mr Salvoni was one between a consumer and a professional, and (ii) Mr Salvoni directed his activities to the Member State of the consumer’s domicile within the meaning of Article 17(1)(c) of Regulation No 1215/2012. Against that background, that court took the view that, pursuant to Article 18(2) of Regulation No 1215/2012, Mr Salvoni should have brought proceedings against his client in the courts of the Member State in which the latter is domiciled (Germany).
15. The Tribunale di Milano (District Court, Milan), now acting in the context of the Article 53 Certificate procedure, thus came to the conclusion that it had previously failed to verify its jurisdiction under Regulation No 1215/2012, as required by Article 28(1) thereof, when issuing the payment order in question.
16. In those circumstances, the referring court is of the view that the automatic issue of the Article 53 Certificate might be contrary to EU law, since it might deprive the person against whom the order for payment in question may be enforced of an effective remedy. The referring court acknowledges that, in conformity with Articles 42 and 53 of Regulation No 1215/2012, it does not have the power to refuse to issue the certificate given that the order for payment in question has become final. Nevertheless, the referring court wonders whether, when interpreted in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 53 of Regulation No 1215/2012 may nonetheless grant it the power to take other action in order to protect the consumer.
17. In that regard, the referring court refers to the Court’s case-law according to which the consumer is in a weak position vis-à-vis sellers or suppliers and, as a result, positive action by national courts, if need be acting of their own motion, may be required to correct that inequality in certain circumstances. (3) Therefore, in a situation such as that in the main proceedings, a balance must be struck — in the referring court’s view — between the need to ensure the swift and efficient enforcement of judgments within the European Union, and the need to protect consumers effectively.
18. The right balance would be struck, according to the referring court, by interpreting Article 53 of Regulation No 1215/2012 as enabling the court of origin to exercise ex officio powers in order to check if the rules on jurisdiction set out in Chapter II, Section 4, of the regulation (that is, Articles 17 to 19 thereof) have been infringed and, where appropriate, to inform the consumer of the potential infringement. In this way, the consumer would be made aware that she could have recourse to the means, provided for in Article 45(1)(e) and Article 46 of Regulation No 1215/2012, to oppose the recognition and enforcement of the decision before the court of the Member State where she is domiciled.
19. In the light of those considerations, the Tribunale di Milano (District Court, Milan) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Should Article 53 of Regulation [No 1215/2012] and Article 47 of [the Charter] be interpreted as meaning that it is not possible for the court of origin, which has been requested to issue the [Article 53 Certificate] with regard to a judgment that has acquired the force of res judicata, to exercise powers of its own motion to ascertain whether there has been a breach of the rules set out in Chapter II, Section 4 of [Regulation No 1215/2012], so that it may inform the consumer of any breach that is established and enable the consumer to consider, in full knowledge of the facts, the possibility of availing himself of the remedy provided for in Article 45 of the Regulation?’
20. Written observations in the present proceedings have been submitted by the Czech Government, Ireland, the Italian Government and the European Commission.
IV. Analysis
A. Preliminary remarks
21. I will first clarify my understanding of the present case, in order to frame the analysis of the legal issues it raises.
22. First, the payment order in question was issued by the Tribunale di Milano (District Court, Milan), which is also the national court that, as the court of origin seised of the request to issue the Article 53 Certificate with regard that same order, decided to submit a request for a preliminary ruling. I assume that, albeit nominally the same jurisdiction, a different formation of that court (or a different judge) issued the original payment order.
23. Second, the payment order in question is not a European Enforcement Order within the meaning 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. (4) It appears to be a judicial decision based purely on national law that, in order to be recognised and enforced cross-border, must be made subject to the mechanisms provided for in Regulation No 1215/2012.
24. Third, there is no mention in the referring court’s request for a preliminary ruling of service of any documents on Ms Fiermonte, the defendant domiciled in Germany. Accordingly, it is unclear whether Ms Fiermonte actually had the opportunity to oppose the issue of the payment order requested by Mr Salvoni, and whether she was indeed properly served with the documents in question. Although certainly not the subject matter of the present case, it might perhaps be useful to recall that, in general, the absence of due service of documents in another Member State is likely to have an impact on the finality of a decision rendered, be it (depending on the particularities of the case) under EU or national law.
25. Fourth, and finally, there is also no mention in the request for a preliminary ruling of any legal basis in domestic law for the referring court’s proposed course of action. In the light of this, two scenarios can be envisaged.
26. On the one hand, one could imagine that there might be provisions of national law that permit or even oblige the court of origin, when seised of a request to issue the Article 53 Certificate, to conduct some form of verification of the decision whose enforcement is sought. If that were the case, one would assume that, if any problems with the original decision were detected, national law would provide for some sort of review of that decision. Whether any such procedure would in fact be compatible with Article 53 of Regulation No 1215/2012 is naturally a different question. But it seems safe to assume that any potential legal or judicial reaction on that basis would be aimed at the underlying decision.
27. On the other hand — as appears to be the case here — it is possible that the national rules do not provide for any such verification mechanism, and the potential basis for the referring court’s proposed course of action lies solely in EU law.
28. Again, leaving aside for the moment the issue of whether any such review would be possible under EU law, I must confess that I am somewhat puzzled by the manner in which the referring court intends to proceed, in particular as regards what exactly that review, if it were possible, would result in. If my understanding of what the national court is proposing is correct, then that court would, on the one hand, issue the Article 53 Certificate, but, at the same time, alert one of the parties to the original procedure and instruct it that it could oppose the enforcement of the very decision that it has just certified.
29. As well intentioned and ingenious as that proposed course of action may be, and regardless of whether any such communication between judge and defendant is permitted under national law, I am of the view that such a course of action would sit rather uneasily with a number of legal principles.
30. First, the simultaneous issue, by the court of origin, of a certificate authoritatively stating that a judicial decision is enforceable and a communication to the defendant informing her of the allegedly erroneous nature of that decision would undermine the principle of mutual trust that forms the basis of the system of mutual recognition of judgments. (5) Indeed, the enforcement authorities of the Member State addressed are unlikely to be the only ones bound to question whether the decisions of any such court can be trusted.
31. Second, the referring court’s proposed course of action would also run counter to the principle of legal certainty in so far as it would essentially call into question, if not directly the legal validity, certainly the de facto operation of the Article 53 Certificate and the underlying final judgment.
32. Third, and perhaps most importantly, I harbour serious doubts that the referring court’s proposed course of action is in keeping with the principles of a fair trial and of equality of arms, as further elaborated in the ‘doctrine of appearances’, which the European Court of Human Rights developed from the generally accepted maxim that ‘justice must not only be done; it must also be seen to be done’. Compliance with Article 6(1) of the European Convention on Human Rights requires that a judicial procedure be fair both in substance and in appearance. In particular, beyond being impartial and independent, court members must also act, throughout the proceedings, in a manner which does not raise any suspicion of possible bias.(6) I would assume that the same principles of law would also be embraced in the EU legal order. (7)
33. Measured against those standards, the referring court’s proposed course of action would in practice mean that a court would no longer be an impartial arbiter, but would of its own volition, and apparently outside of any procedural framework, in effect step into the shoes of the defendant’s legal counsel, providing one party with legal advice on how to oppose a decision that it has just certified, the enforcement of which is sought by the other party.
34. For the purpose of this Opinion, I shall therefore understand the question referred by the national court to be a more general one, which is detached from the specific course of action apparently contemplated by the national court: Is a national court, when issuing the Article 53 Certificate, entitled (or even obliged), under EU law, to ascertain whether the judicial decision that is to be certified was issued in breach of the rules on jurisdiction over consumer contracts?
35. Formulated in this way, the response to the question will naturally provide an answer to both potential permutations alluded to above, namely, whether any such action would be permitted (or required) directly under EU law itself, as well as whether national rules providing for any such review would be compatible with the same provisions of EU law. In both of these scenarios, however, the only conceivable procedural consequence of such a review would have to be aimed at the underlying national decision itself or, potentially, at the discontinuation of the certification procedure (by the non-issue of the Article 53 Certificate); in other words, consequences reconcilable with the judicial function of an independent arbiter.
36. That said, and before turning to the substance of the present case, some remarks on the jurisdiction of the Court in the present proceedings are in order. Although none of the parties who submitted observations raised that issue, the Court is to assess of its own motion whether it has jurisdiction to rule in proceedings where the conditions laid down for the Court’s jurisdiction under Article 267 TFEU might not be satisfied.
B. The jurisdiction of the Court (first act)
37. Is a court of origin, in the context of the procedure provided for in Article 53 of Regulation No 1215/2012, exercising judicial functions? Or is the act of essentially ‘transcribing’ a final national decision into the Annex I form merely administrative in nature, thus possibly falling short of the definition of a ‘court or tribunal’ for the purposes of Article 267 TFEU?
38. The Court has, to some degree, addressed that issue in its recent judgment in Gradbeništvo Korana, where it held that, in circumstances such as those at issue in those proceedings, the procedure for issuing the Article 53 Certificate had a judicial character, with the result that the referring court was entitled to submit a request for a preliminary ruling. (8)
39. Those findings, restricted to circumstances such as those at issue in those main proceedings, prompt the question as to whether the procedure for the issue of the Article 53 Certificate is always of a judicial nature; or, at least, whether that procedure also has a judicial character in a situation such as that in the present main proceedings.
40. According to settled case-law, in order to determine whether a body making a reference is a ‘court or tribunal’ for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, known as the ‘Dorsch criteria’. (9) In order to qualify as a ‘court or tribunal’ entitled to make a reference to the Court, it must be ascertained whether the national body in question is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.
41. Furthermore, in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, it must be determined in what specific capacity, judicial or administrative, it is acting within the particular legal context in which it seeks a ruling from the Court, in order to ascertain whether there is a case pending before it and whether it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. (10) In particular, a national body — even when it constitutes a judicial body according to the relevant national rules (11) — cannot be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU in circumstances where it decides matters before it by performing non-judicial functions, such as functions of an administrative nature. (12)
42. At this stage, the Court could engage in a detailed discussion of whether each and every one of the Dorsch criteria is met in order to ascertain whether it can in fact answer the question posed by the referring court. I wonder, however, how useful such an approach would be for the simple reason that, in the present case, it is the substance that determines admissibility and vice versa. Without providing a substantive answer to the question asked by the national court (as to the scope and nature of the Article 53 Certificate procedure), it is impossible to state what role (judicial or administrative only) a national court is exercising under EU law in that procedure, and thus determine the issue of admissibility. Sooner or later in the discussion about admissibility, the substance would have to be addressed, at the latest when discussing the nature of the procedure (judicial, inter partes) under Article 53 of Regulation No 1215/2012. The outcome of that discussion would then have to be applied to the issue of admissibility, while pretending that this was nothing more than an assessment of admissibility all along.
43. I find little practical purpose in such approach. It would also require discussing a number of the other Dorsch criteria, which are of limited or even zero relevance for the crux of the actual problem identified by the national court, and would, in addition, require some delving into a number of particularities of national law, which are simply not available.
44. Thus, instead of engaging in no doubt passionate debate about whether the egg precedes the hen and to what extent the hen defines the egg, I shall proceed directly to analyse the inside of the egg. Consequently, I will first address the substance of the case and then briefly return, for the sake of completeness, to the issue of jurisdiction at the end of this Opinion. (13)
C. Assessment of the question referred
45. By its question, the referring court essentially asks whether Article 53 of Regulation No 1215/2012, interpreted in the light of Article 47 of the Charter, precludes the court of origin requested to issue the certificate with regard to a judicial decision that has acquired the force of res judicata from ascertaining of its own motion whether that decision was issued in breach of the rules on jurisdiction over consumer contracts.
46. The Czech Government, Ireland and the Italian Government consider the reasoning followed by the referring court to be contrary to both the letter and the spirit of Regulation No 1215/2012. The Commission, on the other hand, argues that Article 53 of Regulation No 1215/2012 does not preclude the court of origin from checking whether the rules on jurisdiction set out in the same regulation have been infringed and, where appropriate, informing the consumer. However — the Commission adds — that provision does not require the court of origin to do so.
47. I largely share the views expressed by the Czech Government, Ireland and the Italian Government.
1. The purpose and function of the Article 53 Certificate
48. It is important to emphasise, from the outset, the purpose and function of the Article 53 Certificate.
49. In accordance with Article 42(1) of Regulation No 1215/2012, the applicant requesting the enforcement of a judgment issued in another Member State must provide the enforcement authority of the Member State addressed with a copy of the judgment in question and with the Article 53 Certificate. That certificate must also be served, in conformity with Article 43(1) of Regulation No 1215/2012, on the person against whom the enforcement is sought prior to the first enforcement measure. (14)
50. The purpose of the Article 53 Certificate is to authoritatively state that the judgment is enforceable. It contains an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest. It is, therefore, a document with an important informative value. By extracting from the judgment whose enforcement is sought the key information, and making that information easily understandable for the authorities and any interested party — thanks to the standard form that must be employed, set out in Annex I to Regulation No 1215/2012 — the Article 53 Certificate contributes to the rapid and efficient enforcement of judgments delivered abroad. (15)
51. Whereas, in the system established by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (16) production of the certificate in question was not required,(17) it became obligatory with the entry into force of Regulation No 1215/2012. That is because the new regulation, doing away with the need for an exequatur, provides for a simplified procedure based on the principle that a decision issued in a Member State should be treated as if it had been issued in the Member State addressed.(18) The objective of this innovation is to reduce the duration and costs of cross-border disputes. (19)
52. The authorities in the Member State addressed are, under the new system, to enforce the judgment solely on the basis of the information contained in the judgment and in the Article 53 Certificate. That is why that certificate — as the Court stated — forms the basis for the implementation of the principle of direct enforcement of judgments delivered abroad. (20) Put simply, without that certificate, the judgment is not capable of circulating freely within the European judicial area. (21)
53. Importantly, under Regulation No 1215/2012, the court of origin has become the only issuing authority for the Article 53 Certificate, unlike under the previous system where the authority in charge did not necessarily correspond to the court that had given the judgment in question. (22) That being so, it stands to reason that the EU legislature has decided that, normally, the court requested to issue the Article 53 Certificate need not ascertain its jurisdiction as to the substance of the matter. Jurisdiction will have been positively established, implicitly or explicitly, by the issuing of the decision whose enforcement is sought. As a matter of fact, the form provided in Annex I to Regulation No 1215/2012 requires the court of origin to take a position on jurisdiction as to the substance of the matter only where that court had issued ‘a provisional, including a protective, measure’. (23)
54. The interpretation of Article 53 of Regulation No 1215/2012 proposed by the referring court cannot easily be reconciled with the above considerations. In particular, that interpretation would in effect back-pedal on one of the main features of the new system introduced by Regulation No 1215/2012. Indeed, the checks that were previously made in the Member State addressed when issuing the exequatur would not be eliminated, but merely shifted to the certification stage carried out in the Member State of origin. That reading of the provision would thus run against the logic and spirit of Regulation No 1215/2012.
55. A number of other elements corroborate that view.
2. The powers of the court of origin
56. In Trade Agency, the Court found that, under the regime established by Regulation No 44/2001, the issue of the certificate in question (then provided for in Article 54 thereof) was ‘almost automatic’. (24) With Article 53 of Regulation No 1215/2012, the EU legislature has, in all evidence, confirmed that approach. The mandatory terms in which that provision is worded attest to that: ‘the court of origin shall, at the request of any interested party, issue the certificate.’ (25)
57. However, what does that quasi-automaticity mean in practice? It means, in my view, that when seised under Article 53 of Regulation No 1215/2012, the court of origin is to verify that the conditions for the application of that provision are satisfied. In particular, that court should check that Regulation No 1215/2012 is applicable ratione temporis and ratione materiae to the case at hand. That court should also make sure that the decision whose enforcement is sought has been issued by it, and that the applicant is an ‘interested party’ within the meaning of Article 53.
58. Conversely, the court of origin cannot go further in its examination of the matter, extending its review to aspects of the dispute which fall outside the boundaries of Article 53 of Regulation No 1215/2012. More particularly, the court of origin may not re‑evaluate the substantive and jurisdictional issues that have been settled in the judgment the enforcement of which is sought.
59. A different interpretation of the provision would ‘short-circuit’ the system established by Regulation No 1215/2012, introducing an additional layer of judicial review even where national law does not provide (or no longer provides) an appeal procedure against the judgment in question. That approach would thus risk encroaching upon the principle of res judicata.
60. The Court has already emphasised the importance, both for the EU legal order and the national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, the Court found it important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question. (26)
61. Accordingly, even if the payment order has, as the referring court believes, been issued in breach of the rules on jurisdiction set out in Chapter II, Section 4, of Regulation No 1215/2012, that fact cannot deprive the payment order of its definitive character and, as a consequence, of its cross-border enforceability.
62. In that context, another aspect that appears to be problematic is the fact that the referring court’s inquiries were undertaken ex officio.
63. Article 46 of Regulation No 1215/2012 expressly states that enforcement may be refused on the grounds referred to in Article 45 of that regulation only upon the ‘application of the person against whom enforcement is sought’. Moreover, Article 45(2) of that regulation adds that, in examining whether the grounds in Article 45(1)(e) are satisfied, the ‘court to which the application was submitted shall be bound by the findings of fact on which the court of origin based its jurisdiction’.
64. That approach can be contrasted with the other instances in Regulation No 1215/2012 where the EU legislature has explicitly placed an obligation on a court to act of its own motion. That is so, in particular, in Articles 27 and 28 and Article 29(1) of that regulation.
65. Those provisions, taken together, show that the EU legislature chose to leave it to the initiative of the party against whom enforcement is sought to act in order to oppose enforcement. That choice is, arguably, consistent with the aim of promoting, as much as possible, the free circulation of judgments within the European Union. That objective requires that clear limits be placed on the time and manner in which an opposition against the enforcement of a judgment delivered abroad may be formed, and on the grounds for it.
66. In the light of the above, it is my view that the referring court is not entitled to ascertain whether the payment order at issue was issued lawfully and, in particular, whether it complied with the rules of jurisdiction set out in Regulation No 1215/2012. A fortiori, the referring court is under no obligation to do so ex officio.
3. The procedure under Article 53 of Regulation No 1215/2012
67. That conclusion is also borne out by considerations relating the nature of the procedure envisaged by Article 53 of Regulation No 1215/2012. Regulation No 1215/2012 does not contain any provision on the procedure to be followed for the issue of the Article 53 Certificate.
68. The administrative and practical elements of that procedure (such as, for example, the internal competence within the court of origin, the documents to be provided, the existence and amount of the fees, etc.) are thus governed by the Member States’ legislation. That is only so, however, provided that compliance with the provisions of Regulation No 1215/2012 is ensured, the functioning of the system established therein is not made ineffective, and the achievement of the objective pursued by that regulation is not hindered.
69. As explained in points 56 to 61 above, it stems from both the rationale behind the new system of recognition and enforcement of judgments in civil and commercial matters, and the wording of Article 53 of Regulation No 1215/2012, that the issue of the Article 53 Certificate by the court of origin is automatic. Once it has been ascertained that the conditions for the application of Article 53 are satisfied, the court of origin cannot refuse to issue the certificate.
70. That being so, the procedure to be followed by the court of origin requires — inevitably, I would say — speedy handling of the request by the applicant. Any additional period of time that would be required by the court of origin to investigate a matter going beyond the mere fulfillment of the conditions set out in Article 53 of Regulation No 1215/2012 would, arguably, produce an unnecessary delay in the procedure. That would, in turn, compromise the effectiveness of the system set up by Regulation No 1215/2012, frustrating the objective of making cross-border litigation less time-consuming and costly.
71. That would be the case, in particular, if the court of origin decides to undertake ex officio inquiries in order to reassess the issues that were dealt with (or should have been dealt with) in the judgment the enforcement of which is sought. That could include, for example, whether that judgment was given by the national court having jurisdiction under the rules provided for in Chapter II of Regulation No 1215/2012.
72. My conclusion on this point is not called into question by the case-law in which the Court has examined the nature of the procedure by which a judgment is certified as a European Enforcement Order for the purposes of Regulation No 805/2004.(27) The duty of the court of origin to verify that all requirements for certification as a European Enforcement Order are met derives expressly from Article 6 of Regulation No 805/2004, a provision that finds no equivalent in Regulation No 1215/2012.
4. The protection of consumers in the context of Regulation No 1215/2012
73. At this juncture, it is necessary to examine whether the fact that the rules on jurisdiction allegedly breached by the Tribunale di Milano (District Court, Milan) when issuing the payment order in question concerned jurisdiction in actions brought against consumers could nonetheless lead to a different conclusion.
74. As mentioned in point 17 above, the referring court takes inspiration from the Court’s case-law — developed especially in the context of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (28) — according to which the consumer is in a weak position vis-à-vis sellers or suppliers and, as a result, positive action by national courts, if need be acting of their own motion, may be required to correct that inequality in certain circumstances. (29)
75. The referring court thus wonders whether that case-law, in a situation such as that in the main proceedings, allows the court of origin to inform the consumer of the alleged breach ex officio, whilst not opposing or refusing the issue of the Article 53 Certificate. That information would enable the consumer to consider, in full knowledge of the facts, whether she wishes to oppose the recognition and enforcement of the payment order before the court of the Member State where she is domiciled, by availing herself of the remedy provided for in Article 45(1)(e) of Regulation No 1215/2012.
76. On this issue, like the Czech Government, Ireland, the Italian Government and the Commission, I believe that the Court’s case-law concerning Directive 93/13 cannot simply be transposed to the context of Regulation No 1215/2012.
77. Directive 93/13 aimed mainly at approximating Member States’ substantive laws with regard to unfair terms in consumer contracts, leaving it to the Member States to lay down the necessary procedural rules, (30) in accordance with the well-known principle of procedural autonomy. (31) The case-law referred to by the referring court was thus the result of situations in which the Court considered that the national procedural rules made it impossible or excessively difficult for consumers to exercise the rights conferred on them by Directive 93/13.
78. In that respect, it should be emphasised that Article 6(1) of Directive 93/13 provides that unfair terms are not binding on the consumer. That is, as the Court has held, a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. (32) Conversely, Regulation No 1215/2012 lays down common rules of a procedural nature. It does not contain any result-oriented and far-reaching substantive provision akin to Article 6(1) of Directive 93/13.
79. That is hardly surprising. Regulation No 1215/2012 includes various provisions that are specific to consumers and give them specific rights in the procedure. As recital 18 explains, ‘in relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules’. (33)
80. Accordingly, by virtue of Article 17(1)(c) of that regulation, jurisdiction must be determined according to the rules set out in Chapter II, Section 4 ‘in matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession … if … the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities’. In turn, according to Article 18(2) of Regulation No 1215/2012, ‘proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled’.
81. Furthermore, Article 45(1)(e)(i) and Article 46 of Regulation No 1215/2012 grant consumers a special ground of refusal of recognition and enforcement in cases where the judgment in question conflicts with the specific rules on jurisdiction mentioned above.
82. In the light of the above, I am of the view that the EU legislature has, in the matters governed by Regulation No 1215/2012, taken into account the specific situation of consumers and devised ad hoc rules to that end. Regulation No 1215/2012 therefore already contains a number of additional procedural guarantees deemed necessary for consumers. Within such a framework, already highly protective of consumers, there is no need to ‘over-inflate’ Article 53 of that regulation in order to introduce — by interpretative means — additional guarantees such as that suggested by the referring court.
83. In systemic terms, if the existence of an extra layer of protection for consumers were to be ‘read into’ the provisions of Regulation No 1215/2012, should then a similar treatment also extend to the other categories of persons which the EU legislature has considered worthy of specific protection when appearing as defendants? (34)
84. In this context, it may also be worth pointing out that, in the very case-law referred to by the referring court, the Court has recognised that consumer protection is not absolute. In particular, it has considered that, in principle, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13.(35) Yet, as mentioned in points 59 to 61 above, the referring court’s proposed course of action would be tantamount to calling into question the definitive character of the decision for which the Article 53 Certificate has been requested.
5. Article 47 of the Charter
85. As a last point, I must state that even if Article 47 of the Charter is added to the equation, my conclusion on the proper construction of Article 53 of Regulation No 1215/2012 remains unaffected.
86. The EU legislature has taken into account the need to ensure that interested parties have adequate judicial avenues open to them to oppose the enforcement of judgments delivered abroad. In recital 29 of Regulation No 1215/2012, the EU legislature emphasises that ‘the direct enforcement in the Member State addressed of a judgment given in another Member State without a declaration of enforceability should not jeopardise respect for the rights of the defence’, further adding, in recital 38, that the regulation respects fundamental rights ‘in particular the right to an effective remedy and to a fair trial guaranteed in Article 47 of the Charter’.
87. There are already a number of safeguards that fully guarantee that aim.
88. First, if it is true that the payment order in question was issued in breach of the rules on jurisdiction set out in Chapter II, Section 4, of Regulation No 1215/2012, Ms Fiermonte is able to oppose recognition and enforcement in Germany by invoking the combined provisions of Article 45(1)(e)(i) and Article 46 of the same regulation.
89. Second, Ms Fiermonte could also avail herself of the ground of refusal in Article 45(1)(b) of Regulation No 1215/2012 regarding judgments given in default of appearance, should the conditions provided for therein be satisfied. According to that provision, a judgment given in default is not recognised ‘if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so’.
90. Third, the system of protection which is built into the provisions of Regulation No 1215/2012 is further complemented by the principle of State liability. Should Ms Fiermonte consider that she suffered damage as a result of an infringement of the rules laid down in Regulation No 1215/2012 committed by the court of origin, and in terms of the possible costs already arising from an illegal decision issued by the court of origin, thus irrespective of the further action of the competent court of the Member State addressed, she would have the possibility to claim damages from the relevant Member State(s).
91. Indeed, according to settled case-law, the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible applies to any case in which a Member State breaches EU law, whichever public authority is responsible for the breach, including where the breach at issue stems from a decision of a court. (36)
92. In the light of the foregoing, I am of the opinion that Article 53 of Regulation No 1215/2012 precludes the court of origin requested to issue the certificate with regard to a judicial decision that has acquired the force of res judicata from ascertaining of its own motion whether that decision was issued in breach of the rules on jurisdiction over consumer contracts.
D. The jurisdiction of the Court (second act)
93. Having dealt with the substance of the case, I return, lastly, to the issue of jurisdiction, merely for the sake of completeness.
94. Various considerations lead me to the view that the functions exercised by the court of origin when requested to issue the Article 53 Certificate are of a judicial nature. Such a court is thus allowed to submit a request for a preliminary ruling under Article 267 TFEU.
95. First, I have emphasised in point 52 above the importance of the Article 53 Certificate within the scheme of Regulation No 1215/2012. That certificate constitutes the basis for the implementation of the principle of direct enforcement of judgments delivered abroad. Once the Article 53 Certificate is provided to the competent enforcement authority, it will, in practice, acquire a life of its own. All the information necessary for the enforcement of the related judgment should in principle be found, in a ‘user-friendly’ fashion, in the certificate. It is thus fair to assume that, unless expressly questioned, the enforcement authorities are unlikely to double-check the accuracy of that information by examining the text of the judgment in question, which will often be drafted in a language they are unable to read. Therefore, in practice, the Article 53 Certificate is likely to form the basis for execution of the judgment.
96. Second, the role of the authority responsible for extracting the information from the body of the judgment whose enforcement is sought and introducing that information into the specific form might often be rather mechanical. However, that may not always be the case. Filling in the form in Annex I to Regulation No 1215/2012 requires rather detailed information. It is quite possible that some of that information might not be found in the judgment whose enforcement is sought. Some of those issues may, obviously, be contentious. Others may require some interpretation of the final judgment rendered.
97. In addition, whether the conditions for the application of Article 53 of Regulation No 1215/2012, discussed above in point 57, are satisfied could be a subject of dispute between the parties. The Gradbeništvo Korana (37) case is a good illustration of that.
98. All these elements and possibilities lead me to a rather clear conclusion: the filling in of the Article 53 Certificate hardly qualifies as an ‘administrative’ procedure, equal to a situation in which someone is merely asked to stamp a document without much reflection or substantive input.
99. Third, in view of that understanding, I do not find satisfactory an interpretation of Article 53 of Regulation No 1215/2012 whereby the (judicial or administrative) nature of the functions exercised by the body issuing the certificate depends each time on the type of issues that it is required to deal with during that specific procedure. The nature of those functions, set out in the provisions of Regulation No 1215/2012, must be the same from the beginning until the end of the procedure, regardless of whether the issues that the court of origin needs to address turn out to be more or less complicated, or involve assessments that may go, to some degree, beyond what is expressly included in the judgment whose enforcement is sought. Put simply, I find it difficult to embrace an approach whereby the particularities and (mis)fortunes of a specific case could turn Article 53 of Regulation No 1215/2012 into a variable-geometry procedure, which sometimes will and at other times will not be judicial.
100. Fourth, and finally, on a more general level, it might also be useful to recall that the Article 53 Certificate procedure happens in practice, at national level, by various forms of ‘internal delegation’. (38) The issue of the Article 53 Certificate may be carried out by an individual judge, or perhaps even be delegated to a law clerk or other official of the court, but it is still done within a national court.
101. I am of the view that, when the body making the reference is, according to the general and institutional definition, a ‘court or tribunal’ under national law, good arguments must be brought forward to prove that, notwithstanding its general judicial nature, that body is clearly exercising only administrative functions in a particular case in the main proceedings. (39) It seems to me that the Court has reached that conclusion only where it was undisputable that the activity in question, despite being carried out by a judicial body, did not lead to a decision having a judicial character. (40) By contrast, in cases where the situation was less straightforward, the Court seems to have given the national court or tribunal ‘the benefit of the doubt’. (41)
102. I find that approach reasonable and possibly all the more justified in the context of the system of judicial cooperation established by Regulation No 1215/2012. The operation of the whole system, of which Article 53 thereof is an important component, relies on the central role given to judicial authorities. Thus, when a court or tribunal entertains doubts about the provisions of Regulation No 1215/2012, it is in the interest of ensuring unity and clarity of the law that access to the Court under Article 267 TFEU is not construed unduly narrowly.
103. In the present case, there is no doubt that the Tribunale di Milano (District Court, Milan) and the individual judge apparently competent to issue the Article 53 Certificate form part of the ordinary Italian judiciary. In addition, the procedure set out in Article 53 of Regulation No 1215/2012 is not, for the reasons explained above, clearly just of an administrative nature.
104. In the light of the foregoing, I am of the view that the Court has jurisdiction to answer the question referred in the present proceedings.
V. Conclusion
105. I propose that the Court answer the question referred for a preliminary ruling by the Tribunale di Milano (District Court, Milan, Italy) as follows:
– Article 53 of Regulation (EU) No 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 (recast), precludes the court of origin requested to issue the certificate with regard to a judicial decision that has acquired the force of res judicata from exercising powers of its own motion in order to ascertain whether that decision was issued in breach of the rules on jurisdiction over consumer contracts.