JUDGMENT OF THE COURT (First Chamber)
25 March 2021 (*)
(Reference for a preliminary ruling – Applicable law – Regulation (EC) No 864/2007 and Regulation (EC) No 593/2008 – Scope ratione temporis – Lack of jurisdiction of the Court – Article 94 of the Rules of Procedure of the Court – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Article 1(1) – Substantive scope – Concept of ‘civil and commercial matters’ – Article 7(1) – Concepts of ‘matters relating to a contract’ and ‘provision of services’ – Article 24(1) – Concept of ‘tenancies of immovable property’– Regulation (EC) No 1393/2007 – Service of judicial and extrajudicial documents – Notaries acting in enforcement proceedings – Proceedings for the recovery of a debt relating to a daily parking ticket for a vehicle parked on the public highway)
In Case C‑307/19,
REQUEST for a preliminary ruling under Article 267 TFEU from the Visoki trgovački sud (Commercial Court of Appeal, Croatia), made by decision of 26 March 2019, received at the Court on 11 April 2019, in the proceedings
Obala i lučice d.o.o.
v
NLB Leasing d.o.o.,
THE COURT (First Chamber),
composed of J.-C. Bonichot, President of the Chamber, L. Bay Larsen, C. Toader (Rapporteur), M. Safjan and N. Jääskinen, Judges,
Advocate General: M. Bobek,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Obala i lučice d.o.o., by M. Kuzmanović, odvjetnik,
– the Croatian Government, by G. Vidović Mesarek, acting as Agent,
– the German Government, by J. Möller, R. Kanitz, M. Hellmann and E. Lankenau, acting as Agents,
– the Slovenian Government, by J. Morela, acting as Agent,
– the European Commission, by M. Wilderspin and M. Mataija, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 26 November 2020,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 56 TFEU and of Article 4(1), Article 10(1), Article 11(1) and Article 12(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40) (‘the Rome II Regulation’), the interpretation of 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 (OJ 2007 L 324, p. 79), the interpretation of Article 4(1)(b) and (c), and Article 4(2) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6, and corrigendum OJ 2009 L 309, p. 87) (‘the Rome I Regulation’), and the interpretation of Article 7(1) and (2) and Article 24(1) 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 (OJ 2012 L 351, p. 1).
2 The request has been made in the context of a dispute between Obala i lučice d.o.o. (‘Obala’), a company with its registered office in Croatia, and NLB Leasing d.o.o. (‘NLB Leasing’), a company established in Slovenia, concerning a claim for recovery of a parking fee in respect of a designated parking space situated on the public highway.
Legal context
EU law
The Rome II Regulation
3 Article 31 of the Rome II Regulation, entitled ‘Application in time’, provides:
‘This Regulation shall apply to events giving rise to damage which occur after its entry into force.’
Regulation No 1393/2007
4 Article 1 of Regulation No 1393/2007, entitled ‘Scope’, provides in paragraph 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).’
5 Under Article 14 of that regulation, entitled ‘Service by postal services’:
‘Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent.’
6 Article 16 of that regulation, entitled ‘Transmission’, provides:
‘Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation.’
7 Regulation No 1393/2007, in force at the material time, has been repealed by Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (OJ 2020 L 405, p. 40).
The Rome I Regulation
8 Under Article 28 of the Rome I Regulation, entitled ‘Application in time’:
‘This Regulation shall apply to contracts concluded after 17 December 2009.’
Regulation No 1215/2012
9 Recitals 10 and 15 of Regulation No 1215/2012 state:
‘(10) The scope of this Regulation should cover all the main civil and commercial matters apart from certain well-defined matters …
…
(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.’
10 Article 1(1) of that regulation provides:
‘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).’
11 Article 4(1) of that regulation provides:
‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’
12 Under Article 7(1) and (2) of that regulation:
‘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’.
13 Article 24 of Regulation No 1215/2012 provides:
‘The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:
(1) 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.
…’
Croatian law
The Law on enforcement
14 Article 1 of the Ovršni zakon (Law on enforcement) (Narodne novine, br. 112/12, 25/13, 93/14, 55/16 and 73/17) authorises notaries to carry out the enforced recovery of debts on the basis of an ‘authentic document’ by issuing a writ of execution which is equivalent to an enforceable instrument, without the express agreement of the defendant.
The Law on road safety
15 Article 1 of the Zakon o sigurnosti prometa na cestama (Law on road safety) (Narodne novine, br. 67/08, 48/10 and 74/11) provides that the purpose of that law is, inter alia, to establish the basic principles concerning mutual relations, the behaviour of users and other persons in the context of road traffic, the basic road safety requirements for public highways, road traffic regulations, road signage and markings and signals to be used by officials authorised to enforce those rules.
16 Article 5 of that law provides:
‘(1) The autonomous local and regional authorities shall, in accordance with the provisions of this Law and after approval by the Ministry of the Interior, regulate traffic in their territory, in particular:
…
6. parking zones and procedures, parking prohibitions and restricted parking zones, …’
The decision on parking in the city of Zadar
17 The Odluka o organizaciji i načinu naplate parkiranja u Gradu Zadru (Decision on the organisation and methods of payment for parking in the city of Zadar) (Glasnik Grada Zadra, br. 4/11), in the version applicable to the dispute in the main proceedings (‘the decision on parking in the city of Zadar’), establishes the organisation and methods of payment for parking and the inspection of vehicles parked in public car parks where a fee is payable.
18 Article 2 of that decision defines public car parks as ‘public areas for the stopping and parking of vehicles’.
19 Article 4 of that decision states that public car parks are marked as such, in accordance with the Law on road safety.
20 Under Article 5 of that 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.
21 Article 6 of the decision on parking in the city of Zadar sets out the days and times during which parking fees must be paid.
22 Article 7 of that decision provides:
‘By stopping or parking his or her vehicle in a public parking area, the driver or owner of the vehicle concludes with the parking organiser a contract for the use of the public parking area, using a daily parking ticket … and accepts the general terms and conditions of the parking contract laid down in the present decision’.
23 According to Article 9 of that decision, the daily ticket which is valid for 24 hours from the time of issue corresponds to the sum of the hourly parking charge in a specific area multiplied by the number of hours of chargeable parking over a parking payment period of 24 hours.
24 Article 10 of that decision provides that collection of payment for the daily ticket is made by way of a daily ticket payment order into the current account of the parking organiser or by payment of the daily ticket at the parking organiser’s ticket office.
25 In accordance with Article 12 of the decision on parking in the city of Zadar, a car park user who has been issued with a daily ticket and a payment order for that ticket is required to make payment within eight days of issue.
26 Article 13 of that decision provides that, if the car park user does not pay for the daily ticket within the prescribed period, he or she is required to pay, within a further eight days and in addition to the amount of the daily ticket, the actual costs and statutory default interest which must be stated in the order for payment. If the car park user does not pay for the daily ticket, the actual costs and statutory default interest within the prescribed periods, the car park organiser is required, in its own name and on its behalf, to bring legal proceedings against that user.
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court of Justice
27 On 20 February 2017, Obala, a commercial company established by the city of Zadar (Croatia) for the purpose of collecting fees for vehicles parked on the public highway, brought enforcement proceedings, through a notary practising in Croatia and on the basis of an authentic document, against NLB Leasing concerning the recovery of fees corresponding to a daily ticket for the parking of a vehicle in a designated parking space situated on the public highway in Zadar. According to the request for a preliminary ruling, it was established that that vehicle was in a parking space at 13.02 on 30 June 2012 and that Obala is seeking payment of the daily ticket in respect of a full day’s parking.
28 On 8 March 2017, that notary issued a writ of execution ordering NLB Leasing to pay the debt in the amount of 84 Croatian kunas (HRK) (approximately EUR 11), in respect of the principal debt representing the daily parking fee, plus HRK 1 235 (approximately EUR 165) for the costs incurred in the proceedings and HRK 506.25 (approximately EUR 67) in respect of foreseeable costs of the proceedings.
29 In order to notify NLB Leasing of the writ of execution, the notary relied on Article 14 of Regulation No 1393/2007 and sent a registered letter with acknowledgement of receipt.
30 NLB Leasing challenged that writ of execution. The Trgovački sud u Pazinu (Commercial Court, Pazin, Croatia) annulled the writ in so far as it provided for enforcement but declared that it did not have jurisdiction to hear the objection and referred the case to the Trgovački sud u Zadru (Commercial Court, Zadar, Croatia), which, in turn, declined jurisdiction and referred that negative conflict of jurisdiction to the court which has made the request for a preliminary ruling.
31 The referring court expresses uncertainty in relation to several aspects of the dispute in the main proceedings, in particular, whether it was lawful to use a registered letter with acknowledgement of receipt in order to serve on the defendant a writ of execution in the context of enforcement proceedings brought before a notary on the basis of an authentic document, the classification of the legal relationship between the parties to the main proceedings for the purposes of determining the jurisdiction of the Croatian courts to deal with the dispute, and the applicable substantive law.
32 First of all, that court is unsure whether notaries, who are not ‘courts’ within the meaning of Regulation No 1215/2012, may rely on the provisions of Regulation No 1393/2007 for the purposes of serving their writs of execution in enforcement proceedings on the basis of an authentic document and whether, in proceedings such as those at issue in the main proceedings, courts may serve enforcement documents on defendants on the basis of Regulation No 1393/2007.
33 The referring court then raises the question of the scope of the concept of ‘civil and commercial matters’ within the meaning of Article 1 of Regulation No 1215/2012, for the purposes of determining whether a dispute relating to the collection of a fee for a daily ticket for parking in a designated space situated on the public highway comes under its jurisdiction.
34 In that regard, the referring court states that, under Article 5(1)(6) of the Law on road safety and the rules relating to the performance of municipal activities, local authorities are to adopt decisions on parking areas and delegate their public-authority powers to municipal commercial undertakings created in order to collect parking fees.
35 In the present case, the decision on parking in the city of Zadar sets out, inter alia, the parking areas and the period during which fees for parking on the public highway are collected, the rate for an hourly ticket and the rate for a daily parking ticket if it is established that a vehicle for which an hourly parking ticket has not been paid or has expired is situated in a public parking area.
36 According to the referring court, the obligation to pay for the daily parking ticket is imposed unilaterally, is punitive in nature and may amount to a penalty if the parking fee has not voluntarily been paid in advance according to the hourly rate or if the period for which it was paid has expired.
37 That court takes the view that there is a difference between, on the one hand, parking in enclosed areas, in which users take a ticket recording the time of entry into those areas and pay the parking fees at the time of leaving those areas, which involves a classic civil-law contract and is therefore a civil matter, and, on the other hand, the parking at issue in the main proceedings, for which the fee is paid in advance for a fixed period which, if exceeded, leads to the payment of a daily ticket in the form of a penalty.
38 Furthermore, in the event that the dispute in the main proceedings comes within the scope of Regulation No 1215/2012, the referring court is uncertain as to which rules of jurisdiction are applicable in accordance with the provisions of that regulation.
39 In that regard, that court states that, according to the case-law of the Croatian courts, the view is generally taken that a parking contract is concluded once a vehicle has been parked in a designated space situated on the public highway. However, according to that court, the question arises as to whether that contract must be classified as a contract for the provision of services or as a tenancy of immovable property.
40 In the view of that court, if such a parking contract is classified as a contract for the provision of services, there might be an infringement of the freedom to provide services under Article 56 TFEU. Furthermore, Croatian courts may derive their jurisdiction from Article 7(1) of Regulation No 1215/2012. However, in the light of the case-law of the Court of Justice and, in particular, the judgment of 23 April 2009, Falco Privatstiftung and Rabitsch (C‑533/07, EU:C:2009:257), the referring court is unsure whether Obala’s activity, which, in the present case, is merely the marking of parking spaces and collecting of parking fees, is sufficient to be classified as a ‘service’ for the purposes of that case-law.
41 With regard to the possible classification of the parking contract as a tenancy of immovable property within the meaning of Article 24(1) of Regulation No 1215/2012, the referring court states that, unlike a tenancy of immovable property, which, under ordinary law, must be in writing, failing which it is invalid, a parking contract is not concluded in writing. Moreover, that court states there is no statutory lien over parked vehicles. On the other hand, it takes the view that it could be argued that a specific area of immovable property is occupied in such a way that there is some similarity between a parking contract and a tenancy of immovable property.
42 The referring court also raises the possibility that parking on the public highway is not contractual in nature and asks whether the view might be taken that, because the user of the parking space has not purchased an hourly ticket, he or she could be liable in tort, delict or quasi-delict within the meaning of Article 7(2) of Regulation No 1215/2012.
43 Finally, that court is uncertain as to which law is applicable. It states that, in the present case, the parking occurred on 30 June 2012, that is to say, before the date of accession of the Republic of Croatia to the European Union, and therefore asks whether, in the light of the case-law of the Court of Justice on contracts concluded before that date of accession, in particular the order of 5 November 2014, VG Vodoopskrba (C‑254/14, not published, EU:C:2014:2354), and the judgment of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123), the provisions of the Rome I and Rome II Regulations are applicable to the dispute in the main proceedings.
44 In those circumstances, the Visoki trgovački sud (Commercial Court of Appeal, Croatia) decided to stay the 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 come within the concept of a “court” within the meaning of Regulation No 1215/2012? In other words, given that notaries do not come within the concept of a “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 Law on road safety and by 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 by the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of documents on the defendants in another Member State under Regulation [No 1393/2007]?
If, on the basis of 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 TFEU and to the other provisions in the EU acquis … [.]
(5) In the present case, the parking occurred 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 by 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 parking in the street 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 where 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 the Republic of Croatia joined the European Union …, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing the applicable law, namely [the Rome I] Regulation or [the Rome II] Regulation, 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 also 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 period for which the ticket was purchased expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the EU 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 [the Rome I] Regulation 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 [the Rome I] Regulation?
– In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of [the Rome I] Regulation?
– In the alternative, if the parking comes under the provisions of Article 4(2) of [the Rome I] Regulation, 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, whereas 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 [the Rome I] Regulation nevertheless also apply?
– If the case is considered to involve a non-contractual obligation within the terms of [the Rome II] Regulation, 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 [that] regulation …?
– 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 [the Rome II] Regulation?
– 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 [the Rome II] Regulation?
– 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 [the Rome II] Regulation?’
45 Due to the health risks associated with the coronavirus pandemic, the First Chamber of the Court of Justice, by decision of 22 April 2020, decided to give a ruling without holding the hearing which had initially been scheduled in the present case, and sent a number of questions, for written response, to the parties and interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union. Obala, the Croatian and Slovenian Governments, and the Commission provided written responses to those questions.
Consideration of the questions referred for a preliminary ruling
The admissibility of the first, third and fourth questions, and of the first part of the ninth question
46 Obala and the Croatian Government submit that the request for a preliminary ruling is inadmissible on the ground that, in essence, the referring court has not sufficiently explained the reasons which led it to refer the questions for a preliminary ruling or how any answer by the Court of Justice to questions which they consider to be factual in nature would be relevant to the dispute in the main proceedings. Furthermore, according to Obala, the view could be taken that there is no dispute in the present case in so far as, under the national procedural rules, the first court to hear the main proceedings should have dismissed the objection to the writ of execution made on the basis of an authentic document on the ground that that objection not only was written by a person who was not entitled to represent the party against whom enforcement was sought, but was also written in a language other than Croatian.
47 According to the Commission, the referring court is called upon to rule in proceedings relating solely to a conflict of jurisdiction between two courts. The referring court is therefore required only to determine which of the two courts concerned has territorial jurisdiction. Consequently, in the Commission’s view, the questions relating to the interpretation of Regulation No 1215/2012 are the only questions relevant to the resolution of that conflict of jurisdiction. It submits that the other questions concerning the service of documents and the determination of the applicable law are unconnected to the subject matter of the dispute in the main proceedings and are, therefore, inadmissible.
48 In that regard, it should be noted that, according to settled case-law, questions referred for a preliminary ruling by a national court in the legislative and factual context which that court is responsible for defining, and the accuracy of which is not a matter for the Court of Justice to determine, enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court, are not satisfied or where it is quite obvious that the interpretation of a provision of EU law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical (see, to that effect, judgments of 9 July 2020, Verein für Konsumenteninformation, C‑343/19, EU:C:2020:534, paragraph 19, and of 3 September 2020, Supreme Site Services and Others, C‑186/19, EU:C:2020:638, paragraph 42 and the case-law cited).
49 It is also settled case-law that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 1 October 2020, Elme Messer Metalurgs, C‑743/18, EU:C:2020:767, paragraph 41 and the case-law cited).
50 Those requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Rules of Procedure, which the referring court is required to observe in the context of the cooperation instituted by Article 267 TFEU. Those requirements are also stated in the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2018 C 257, p. 1) (see, to that effect, judgment of 13 December 2018, Rittinger and Others, C‑492/17, EU:C:2018:1019, paragraphs 38 and 39).
51 In the present case, it must be noted that, as regards the interpretation of Regulation No 1393/2007, to which the first and third questions relate, the referring court, seised in the context of a negative conflict of jurisdiction, has not indicated to the Court of Justice, in accordance with the requirements of Article 94 of the Rules of Procedure, how the resolution of the dispute in the main proceedings depends on the interpretation of that regulation. In particular, as is apparent from the order for reference, the respondent in the main proceedings brought an action before the Croatian courts and lodged an objection to the writ of execution that had been served on it.
52 As regards the fourth question and the first part of the ninth question, the referring court has also not provided any explanation of the reasons which led it to inquire as to whether the presumption that a contract is concluded as a result of parking in a designated parking space situated on the public highway is compatible with the provisions on the freedom to provide services laid down in Article 56 TFEU or what would be the effect in that context if the owner of the vehicle concerned were a natural or legal person.
53 It follows that the first, third and fourth questions, and the first part of the ninth question, are inadmissible.
The jurisdiction of the Court to answer the eighth question and the second part of the ninth question
54 By the eighth question and the second part of the ninth question, which it is appropriate to examine in the first place, the referring court expresses uncertainty, in the light of the provisions of the Rome I or Rome II Regulations, as to the determination of the law applicable to a legal relationship arising from the parking of a vehicle in a designated parking space situated on the public highway, in a situation where that parking took place before the Member State concerned acceded to the European Union.
55 In that regard, Article 2 of the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21) stipulates that the provisions of the original treaties and the acts adopted by the institutions before the accession of the Republic of Croatia are binding on that Member State and are to apply in that State only from the date of its accession, namely 1 July 2013.
56 As regards the Rome I Regulation, it is apparent from the Court’s case-law that, in accordance with Article 28 of that regulation, its application depends on the date of conclusion of the contract concerned (see, to that effect, order of 13 January 2016, Raiffeisen Privatbank Liechtenstein, C‑397/15, not published, EU:C:2016:16, paragraph 16).
57 As regards the Rome II Regulation, the Court has held that, in accordance with Article 31 of that regulation, the only time to be taken into account for the purposes of defining the scope ratione temporis of that regulation is that at which the event causing the damage occurred (see, to that effect, judgment of 17 November 2011, Homawoo, C‑412/10, EU:C:2011:747, paragraph 36).
58 In the present case, it is apparent from the request for a preliminary ruling that the vehicle in question in the main proceedings was parked on 30 June 2012, that is to say, before the accession of the Republic of Croatia to the European Union. It follows, ratione temporis, that the Rome I and Rome II Regulations are not applicable and that the Court of Justice does not have jurisdiction to answer the eighth question and the second part of the ninth question.
The second question
59 By its second question, the referring court asks, in essence, whether Article 1(1) of Regulation No 1215/2012 must be interpreted as meaning that an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway, brought by a company which has been appointed by a local authority to manage such parking spaces, comes within the concept of ‘civil and commercial matters’ within the meaning of that provision.
60 As regards the concept of ‘civil and commercial matters’ in Article 1(1) of Regulation No 1215/2012, the Court has repeatedly held that, in order to ensure, as far as possible, that the rights and obligations which derive from that regulation for the Member States and the persons to whom it applies are equal and uniform, that concept should not be interpreted as a mere reference to the internal law of a Member State. That concept must be regarded as an autonomous concept to be interpreted by reference, first, to the objectives and scheme of that regulation and, second, to the general principles which stem from the corpus of the national legal systems (judgment of 28 February 2019, Gradbeništvo Korana, C‑579/17, EU:C:2019:162, paragraph 46 and the case-law cited).
61 Moreover, the need to ensure the sound operation of the internal market and the need, in the interests of the harmonious administration of justice, to ensure that irreconcilable judgments will not be given in the Member States require a broad definition of that concept of ‘civil and commercial matters’ (see, to that effect, judgment of 10 September 2009, German Graphics Graphische Maschinen, C‑292/08, EU:C:2009:544, paragraphs 22 and 23).
62 In order to determine whether or not legal proceedings come within the scope of the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012, and, consequently, whether they come within the scope of that regulation, it is necessary to determine the nature of the legal relationships between the parties to the action and the subject matter of the action or, alternatively, the basis of the action and the detailed rules applicable to it (judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 37 and the case-law cited).
63 Thus, although certain actions between a public authority and a person governed by private law may come within the scope of Regulation No 1215/2012 where the legal proceedings relate to acts performed iure gestionis, the position is otherwise where the public authority is acting in the exercise of its public powers (see, to that effect, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 33 and the case-law cited).
64 The exercise of public powers by one of the parties to the case, because it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, excludes such a case from ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012 (judgment of 3 September 2020, Supreme Site Services and Others, C‑186/19, EU:C:2020:638, paragraph 57 and the case-law cited).
65 Furthermore, the public purpose of certain activities does not, in itself, constitute sufficient evidence to classify them as being carried out iure imperii, in so far as they do not entail the exercise of any powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals (judgment of 3 September 2020, Supreme Site Services and Others, C‑186/19, EU:C:2020:638, paragraph 66 and the case-law cited).
66 In the present case, as regards the subject matter of the action in the main proceedings, that action concerns the recovery of a debt corresponding to the amount of a daily parking ticket for a designated parking space situated on the public highway, together with procedural costs.
67 As is apparent from the file before the Court, that action, although brought by Obala in accordance with the mandate given to it by an act of public authority, is based on a private law relationship in which the parties assume rights and obligations in accordance with the general terms and conditions of the parking contract that are provided for in the decision on parking in the city of Zadar, including as regards the obligation to pay for either an hourly ticket or a daily ticket, and the price of those tickets. A contract relating to a daily ticket is deemed to have been concluded if payment is not made for an hourly ticket.
68 Furthermore, as follows from the written replies provided by the Croatian Government to the questions sent by the Court, the obligation, in the event of failure to pay for a daily parking ticket, to pay the actual costs and statutory default interest is based on the Croatian law on obligations which provides for the creditor’s right to full compensation.
69 It also follows from the information in the file before the Court that the daily parking ticket does not constitute a penalty for a road traffic offence.
70 As regards the basis of and detailed rules governing the bringing of the main action, it should also be noted that Obala seeks recovery of the parking fee in accordance with the rules of ordinary law, and that, in accordance with the Law on enforcement, it set in motion an initial procedure before a notary, followed by proceedings brought before a court after the defendant against whom enforcement was sought had lodged an objection to the writ of execution issued by that notary.
71 Furthermore, as in the situation at issue in the case which gave rise to the judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193), by issuing a daily parking ticket to the interested parties, Obala does not grant an enforceable instrument to itself by way of derogation from the rules of ordinary law, since, following such an issue of a daily parking ticket, that company is merely in a position to rely on an authentic document enabling it to bring proceedings in accordance with the provisions of the Law on enforcement or, if necessary, in the event of that being challenged, to bring legal proceedings.
72 It follows from the foregoing that neither the legal relationship existing between the parties to an action such as that at issue in the main proceedings, nor the basis of and detailed rules governing such an action, can be regarded as indicative of the exercise of public powers for the purposes of EU law, with the result that an action of that kind must be regarded as coming within the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012 and comes within the scope of that regulation.
73 In the light of those considerations, the answer to the second question is that Article 1(1) of Regulation No 1215/2012 must be interpreted as meaning that an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway, brought by a company which has been appointed by a local authority to manage such parking spaces, comes within the concept of ‘civil and commercial matters’ within the meaning of that provision.
The sixth question
74 By its sixth question, the referring court asks, in essence, whether Article 24(1) of Regulation No 1215/2012 must be interpreted as meaning that an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway comes within the concept of ‘tenancies of immovable property’ within the meaning of that provision.
75 According to settled case-law, the system of common rules on conferment of jurisdiction laid down in Chapter II of Regulation No 1215/2012 is based on the general rule, set out in Article 4(1) of that regulation, that persons domiciled in a Member State are to be sued in the courts of that State, irrespective of their nationality (judgment of 4 October 2018, Feniks, C‑337/17, EU:C:2018:805, paragraph 35).
76 It is only by way of derogation from that general rule that the courts of the defendant’s domicile have jurisdiction that Section 6 of Chapter II of Regulation No 1215/2012 provides for a certain number of rules of exclusive jurisdiction, including that in Article 24(1) of that regulation, which confers on the courts of the Member State in which the immovable property concerned is situated jurisdiction to rule on tenancies of immovable property (see, to that effect, judgment of 10 July 2019, Reitbauer and Others, C‑722/17, EU:C:2019:577, paragraph 38). Given that they constitute a derogation, the provisions of Article 24(1) of that regulation must not be given an interpretation broader than is required by their objective (see, to that effect, judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 28 and the case-law cited).
77 As regards the objective pursued by those provisions, it must be noted, as is clear from the Court’s settled case-law, that the essential reason for conferring exclusive jurisdiction on the courts of the Member State in which the immovable property is situated is that the courts of the locus rei sitae are the best placed, for reasons of proximity, to ascertain the facts satisfactorily and to apply the rules and practices which are generally those of the State in which the property is situated (see, to that effect, judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 29 and the case-law cited).
78 As regards tenancies of immovable property in particular, it is clear from the Court’s case-law that that exclusive jurisdiction is justified by the complexity of the relationship of landlord and tenant, which comprises a series of rights and obligations in addition to that relating to rent. That relationship is governed by special legislative provisions, some of a mandatory nature, of the State in which the immovable property which is the subject of the lease is situated, for example, provisions determining who is responsible for maintaining the property and paying land taxes, provisions governing the duties of the occupier of the property as against the neighbours, and provisions controlling or restricting the landlord’s right to retake possession of the property on expiry of the lease (order of 15 May 2019, MC, C‑827/18, not published, EU:C:2019:416, paragraph 27 and the case-law cited).
79 In the present case, however, as is apparent from the order for reference, the action in the main proceedings does not concern the conditions of enjoyment of immovable property, but the recovery of a fee for parking in a designated space situated on the public highway. Irrespective of the classification of the legal relationship thus established under national law, such an action, in the light of its purpose and the scope of the verifications which the national court will have to carry out, cannot come within the exclusive jurisdiction rule laid down in Article 24(1) of Regulation No 1215/2012.
80 In the light of those considerations, the answer to the sixth question is that Article 24(1) of Regulation No 1215/2012 must be interpreted as meaning that an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway does not come within the concept of ‘tenancies of immovable property’ within the meaning of that provision.
The fifth and seventh questions
81 By its fifth and seventh questions, which it is appropriate to examine together, the referring court asks, in essence, first of all, whether Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that an action for the recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway comes within the scope of ‘matters relating to a contract’ within the meaning of that provision, and, if so, whether the parking contract concluded in such circumstances constitutes a contract for the provision of services within the meaning of the second indent of Article 7(1)(b) of that regulation, and, if not, whether such an action comes within the rule of special jurisdiction in matters relating to tort, delict or quasi-delict laid down in Article 7(2) of that regulation.
82 As regards, in the first place, the contractual or tortious nature of the action in the main proceedings, it is important to note that the concepts of ‘matters relating to a contract’ and ‘matters relating to tort, delict or quasi-delict’, within the meaning, respectively, of Article 7(1) and (2) of Regulation No 1215/2012, must be interpreted autonomously, by reference principally to the regulation’s scheme and objectives, in order to ensure that the regulation is applied uniformly in all the Member States. Those concepts cannot therefore be taken to refer to how the legal relationship in question before the national court is classified by the applicable national law (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 19 and the case-law cited).
83 In that regard, the Court has held that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 7(2) of Regulation No 1215/2012 covers all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of that regulation, in that they are actions not based on a legal obligation freely consented to by one person towards another (judgment of 24 November 2020, Wikingerhof, C‑59/19, EU:C:2020:950, paragraph 23 and the case-law cited).
84 The Court has held that the applicability of either Article 7(1) of Regulation No 1215/2012 or Article 7(2) thereof depends, first, on the applicant’s choice whether or not to rely on one of those rules of special jurisdiction and, second, on the examination, by the court hearing the action, of the specific conditions laid down by those provisions (judgment of 24 November 2020, Wikingerhof, C‑59/19, EU:C:2020:950, paragraph 29).
85 Where an applicant relies on one of those rules, it is therefore necessary for the court hearing the action to ascertain whether the applicant’s claims concern, irrespective of their classification under national law, matters relating to a contract or, on the contrary, matters relating to tort, delict or quasi-delict within the meaning of that regulation (judgment of 24 November 2020, Wikingerhof, C‑59/19, EU:C:2020:950, paragraph 30).
86 It follows that it is necessary to ascertain from the outset whether an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway is, irrespective of its classification under national law, contractual in nature.
87 In that regard, whilst Article 7(1) of Regulation No 1215/2012 does not require a contract to be concluded in writing, a contractual obligation must nevertheless be identified in order for that provision to apply. Such an obligation may be regarded as having arisen tacitly, in particular where that results from unequivocal acts expressing the intention of the parties (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 24 and the case-law cited).
88 In the present case, it is apparent from the documents before the Court that the general terms and conditions for use of public parking areas, namely, inter alia, the determination of parking spaces, parking periods and parking fees, including the obligation to purchase a daily parking ticket, were published in the decision on parking in the city of Zadar. Parking in a designated parking space situated on the public highway gives rise to a legal relationship between the organiser of that space and the person who has used it by paying for an hourly or daily parking ticket, the nature of which may be described as contractual.
89 An action for recovery of a fee for a daily parking ticket is therefore based on an alleged failure to fulfil contractual obligations and is a ‘matter relating to a contract’ within the meaning of Article 7(1)(a) of Regulation No 1215/2012, with the result that the Croatian courts may derive their jurisdiction from that provision, irrespective of the nature of the parking contract at issue in the main proceedings.
90 The argument put forward by the Slovenian Government in its response to the written questions put by the Court, according to which the defendant against whom enforcement was sought did not freely consent to an obligation, in so far as, in the present case, the vehicle in question in the main proceedings was parked in the relevant parking space not by that party itself but by the lessee, is not such as to call into question the contractual nature of the action in the main proceedings. That argument concerns the examination of the substance which a court is required to carry out after ruling on its jurisdiction.
91 In that regard, the Court has held that a court hearing an action for performance of a contract has jurisdiction under Article 7(1) of Regulation No 1215/2012, even where the defendant raises, as a defence, the non-existence of that contract (judgment of 4 March 1982, Effer, 38/81, EU:C:1982:79, paragraph 8).
92 As regards, in the second place, the possibility of classifying the parking contract in the main proceedings as a contract for the provision of services, for the purposes of the application of Article 7(1)(b) of Regulation No 1215/2012, it must be stated that such a classification would exclude the application of the rule of jurisdiction laid down in Article 7(1)(a) of that regulation. In view of the hierarchy which Article 7(1)(c) establishes between Article 7(1)(a) and (b), the rule of jurisdiction laid down in Article 7(1)(a) is intended to apply only in the alternative and if the rules of jurisdiction in Article 7(1)(b) do not apply (judgment of 8 March 2018, Saey Home & Garden, C‑64/17, EU:C:2018:173, paragraph 34 and the case-law cited).
93 The concept of ‘services’, within the meaning of Article 7(1)(b), second indent, of Regulation No 1215/2012, implies, at least, that the party which provides the service carries out a particular activity in return for remuneration (see, to that effect, judgment of 8 March 2018, Saey Home & Garden, C‑64/17, EU:C:2018:173, paragraph 38 and the case-law cited).
94 The criterion relating to the existence of an activity requires the performance of positive acts, rather than mere omissions (judgment of 8 March 2018, Saey Home & Garden, C‑64/17, EU:C:2018:173, paragraph 39). Thus, the Court has held that it cannot be inferred, from a contract under which the owner of an intellectual-property right grants its contractual partner the right to use that right in return for remuneration, that such an activity is involved, because the owner of an intellectual-property right does not perform any service in granting a right to use that property but undertakes merely to permit the licensee to exploit that right freely (see, to that effect, judgment of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraphs 30 and 31).
95 In the present case, it is apparent from the information available to the Court that Obala is responsible for the management of public parking areas, which involves a specific activity consisting, at the very least, in the establishment, definition and marking of parking spaces on the public highway and the management of the arrangements for collecting parking fees.
96 As regards the criterion of remuneration paid in return for an activity, it is not disputed, in the present case, that payment for a daily parking ticket may be classified as remuneration.
97 Consequently, and as has been noted, in essence, by the Advocate General in points 119 and 120 of his Opinion, the parking contract at issue in the main proceedings may be classified as a ‘contract for the provision of services’ within the meaning of the second indent of Article 7(1)(b) of Regulation No 1215/2012.
98 The answer to the fifth and seventh questions is therefore that Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning, first, that an action for the recovery of a fee arising from a contract for parking in one of the defined parking spaces situated on the public highway which are organised and managed by a company appointed for that purpose comes within the scope of ‘matters relating to a contract’ within the meaning of that provision and, second, that that contract constitutes a contract for the provision of services within the meaning of the second indent of Article 7(1)(b) of that regulation.
Costs
99 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
1. Article 1(1) 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 must be interpreted as meaning that an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway, brought by a company which has been appointed by a local authority to manage such parking spaces, comes within the concept of ‘civil and commercial matters’ within the meaning of that provision.
2. Article 24(1) of Regulation No 1215/2012 must be interpreted as meaning that an action for recovery of a fee relating to a daily parking ticket for a designated parking space situated on the public highway does not come within the concept of ‘tenancies of immovable property’ within the meaning of that provision.
3. Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning, first, that an action for the recovery of a fee arising from a contract for parking in one of the defined parking spaces situated on the public highway which are organised and managed by a company appointed for that purpose comes within the scope of ‘matters relating to a contract’ within the meaning of that provision and, second, that that contract constitutes a contract for the provision of services within the meaning of the second indent of Article 7(1)(b) of that regulation.
[Signatures]