CJEU, 1st chamber, September 4, 2019, No C-347/18

1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 2012 L 351, p. 1), as amended by Commission Delegated Regulation (EU) 2015/281 of 26 November 2014 (OJ 2015 L 54, p. 1) ('Regulation No 1215/2012'), and Article 47 of the Charter of Fundamental Rights of the European Union ("the Charter").

2 The request has been made in proceedings between Mr Alessandro Salvoni and Ms Anna Maria Fiermonte concerning the sums owed by the latter to the former as consideration for the legal services provided by Mr Salvoni.

Legal context

3 According to recitals 29 and 32 of Regulation No 1215/2012:

"(29) ... The person against whom enforcement is sought should be able to apply for refusal of the recognition or enforcement of a judgment if he considers one of the grounds for refusal of recognition to be present. ...

(32) In order to inform the person against whom enforcement is sought of the enforcement of a judgment given in another Member State, the certificate established under this Regulation, if necessary, accompanied by the judgment, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service."

4 Articles 17 to 19 of Regulation No 1215/2012 are in Chapter II thereof relating to the rules on jurisdiction and, in particular, Section 4 of that chapter entitled "Jurisdiction over consumer contracts". Article 17(1)(c) of that regulation provides:

"1. 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."

5 Article 18(2) of that regulation provides:

"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."

6 Article 28(1) of that regulation states:

"Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation."

7 Article 37(1) of Regulation No 1215/2012 states:

"1. A party who wishes to invoke in a Member State a judgment given in another Member State shall produce:

(a) a copy of the judgment, which satisfies the conditions necessary to establish its authenticity; and

(b) the certificate issued pursuant to Article 53."

8 Article 42 of that regulation provides:

"1. 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.

2. For the purposes of enforcement in a Member State of a judgment given in another Member State ordering a provisional, including a protective, measure, the applicant shall provide the competent enforcement authority with:

(a) a copy of the judgment, which satisfies the conditions necessary to establish its authenticity;

(b) the certificate issued pursuant to Article 53, containing a description of the measure and certifying that:

(i) the court has jurisdiction as to the substance of the matter;

(ii) the judgment is enforceable in the Member State of origin; and

(c) where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment..."

9 Pursuant to Article 43(1) of that regulation:

'Where enforcement is sought of a judgment given in another Member State, the certificate issued pursuant to Article 53 shall be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the judgment, if not already served on that person.'

10 As regards the refusal of recognition and enforcement, Article 45(1)(e) and (2) of that regulation provides:

'1. 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; or

2. In its examination of the grounds of jurisdiction referred to in point (e) of paragraph 1, 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.'

11 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".

12 According to Article 53 of that regulation "the court of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex I".

13 Paragraph 4 of that form, entitled "The Judgment", contains in its heading 4.6.2 references which are to be included by the court of origin -- in case of a provisional, including a protective, measure -- concerning the jurisdiction of the court ordering that measure.

The dispute in the main proceedings and the question referred for a preliminary ruling

14 By application lodged on 3 November 2015, Mr Salvoni, a lawyer based in Milan (Italy), asked the Tribunale di Milano (District Court, Milan, Italy) to issue a payment order argainst Ms Fiermonte, who resides in Hamburg (Germany), for an amount owed to him as consideration for the professional services rendered by him in connection with proceedings challenging the holographic will made by his client's father.

15 The referring court delivered a judgment ordering payment of a certain sum together with interest and costs. Since Ms Fiermonte did not challenge that judgment, Mr Salvoni submitted an application before that court, for the purposes of enforcement of that judgment, requesting that a certificate on the basis of Article 53 of Regulation No 1215/2012 be issued using the form set out in Annex I to that regulation.

16 The referring court carried out an internet search of its own motion from which it was apparent that Mr Salvoni directed his activity to Germany. Accordingly, the referring court asked Mr Salvoni to establish from which firm he was conducting his activity during the period in which he provided his legal services to Ms Fiermonte. The documents lodged by Mr Salvoni confirm that his activity was directed to Germany and that at the time when he provided his legal services to Ms Fiermonte, she was residing in Germany.

17 Finding that the relationship between Mr Salvoni and Ms Fiermonte was comparable to a consumer contract, the referring court concluded from the information concerning Mr Salvoni's professional activity that the judgment ordering payment was given in breach of the rules on jurisdiction set out in Chapter II, Section 4 of Regulation No 1215/2012 relating to jurisdiction in respect of consumer contracts.

18 In that context, the referring court has doubts as to the powers conferred on the court called on to issue the certificate provided for in Article 53 of Regulation No 1215/2012 where a judgment, which has acquired the force of res judicata under national procedural law, was adopted in breach of the provisions relating to the rules on jurisdiction laid down by that regulation.

19 That court is unsure, in particular, as to whether Article 53 of Regulation No 1215/2012 requires the court to which a request for a certificate was submitted to transpose, in identical terms, in that certificate, the judgment given in the Member State of origin, or whether that provision enables it to decide of its own motion whether to inform the defendant-consumer, against whom the judgment is to be enforced in a Member State other than that of origin, of any breach of the rules on jurisdiction laid down in ChapterII, Section 4, of that regulation and, therefore, of the possibility of precluding recognition within the meaning of Article 45(1)(e) of that regulation.

20 The referring court takes the view that Articles 42 and 53 of Regulation No 1215/2012 could be interpreted as meaning that the court called upon to issue that certificate lacks any discretionary power and that it must automatically transpose the content of the judgment at issue in the form set out in Annex I to that regulation in order to certify that that judgment is enforceable in the Member State of origin.

21 Nevertheless, according to the referring court, such an interpretation is liable to undermine Article 47 of the Charter, as interpreted by the Court in the field of consumer law. In that regard, the referring court maintains that it is clear from the case-law of the Court, and, in particular, from the judgments of 14 June 2012, Banco Español de Crédito (C-618/10, EU:C:2012:349, paragraphs 39, 41 and 43), and of 18 February 2016, Finanmadrid EFC (C-49/14, EU:C:2016:98, paragraph 46), that the weaker position of the consumer vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge, may be corrected only by positive action by the court which is under an obligation to examine of its own motion whether a contractual term is unfair, provided that it has available to it the legal and factual elements necessary for that task.

22 As regards the certificate provided for in Article 53 of Regulation No 1215/2012, the referring court notes that, as the Court stated with regard to the certificate provided for in Article 9 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15), in the judgment of 16 June 2016, Pebros Servizi (C-511/14, EU:C:2016:448), the certification of a court decision is a judicial act. Under the system provided for 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 (OJ 2001 L 12, p. 1), the Court had also held that the function assigned to the certificate provided for in Article 54 of that regulation is to facilitate the adoption of the declaration of enforceability of the judgment given in the Member State of origin (judgment of 6 September 2012, Trade Agency, C-619/10, EU:C:2012:531, paragraph 41). In that context, the referring court emphasizes that the importance of such a certificate was reinforced in the system established by Regulation No 1215/2012.

23 According to the referring court, it is up to it to reconcile the objective of the swift circulation of judgments as pursued by Regulation No 1215/2012 and the effective protection of consumers by means of the possibility, when the certificate provided for in Article 53 of that regulation is issued, of informing the consumer of its own motion that there has been a breach of the rules on jurisdiction laid down in Chapter II, Section 4 of that regulation.

24 In those circumstances, the Tribunal 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 certificate provided for in Article 53 of [that] regulation ... 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 [that regulation], 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 [that regulation]?"

Consideration of the question referred

Admissibility

25 As a preliminary point, it must be determined whether a court which has been requested to issue a certificate under Article 53 of Regulation No 1215/2012 is acting in the exercise of a judicial function within the meaning of Article 267 TFEU, or whether the procedure which it follows may be treated as a purely administrative procedure or non-contentious procedure.

26 According to the Court's settled case-law, although Article 267 TFEU does not make the reference to the Court subject to their having been an inter partes hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling, a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (judgment of 16 June 2016, Pebros Servizi, C-511/14, EU:C:2016:448, paragraph 24 and the case-law cited).

27 The terms 'give judgment', within the meaning of the second paragraph of Article 267 TFEU, encompass the whole procedure leading to the referring court's judgment and must, therefore, be interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all procedural provisions of EU law that the referring court is required to apply (see, to that effect, judgment of 16 June 2016, Pebros Servizi, C-511/14, EU:C:2016:448, paragraph 28 and the case-law cited).

28 In that regard, the Court held in paragraphs 39 to 41 of the judgment of 28 February 2019, Gradbeništvo Korana (C-579/17, EU:C:2019:162), that a court of origin exercises judicial functions where it determines whether it is competent to issue the certificate under Article 53 of Regulation No 1215/2012.

29 That approach is not restricted solely to cases in which the jurisdiction to issue such a certificate is challenged, since the body which issues the certificate provided for in that article is also called upon to carry out functions of a judicial nature in other situations.

30 Thus, the role of the certificate provided for in Article 53 of Regulation No 1215/2012 in the system established by that regulation warrants, where some of the information which must be provided in the certificate is not in the judgment whose enforcement is sought, or requires an interpretation of that judgment or is of a contentious nature, the exercise of judicial functions by the court of origin. In such cases, that court forms part of the continuity of the previous judicial proceedings, ensuring the full effectiveness thereof, in so far as, in the absence of certification, a judgment may not freely be enforced within the European judicial area. Such a conclusion responds to the need to ensure rapid enforcement of court judgments while ensuring the legal certainty which is the basis of mutual trust in the administration of justice within the European Union.

31 Consequently, the procedure for the issue of a certificate under Article 53 of Regulation No 1215/2012 is judicial in nature, with the result that a national court ruling in the context of such proceedings is entitled to refer questions to the Court for a preliminary ruling.

32 It follows that the present request for a preliminary ruling is admissible.

Substance

33 By its question, the referring court asks, in essence, whether Article 53 of Regulation No 1215/2012, read in conjunction with Article 47 of the Charter, must be interpreted as precluding the court of origin which has been requested to issue the certificate provided for in Article 53 of that regulation in respect of a judgment which has acquired the force of res judicata from being able to ascertain of its own motion whether there has been a breach of the rules set out in Chapter II, Section 4 of that regulation, so that it may inform the consumer of any breach that is established and enable the him to assess, in full knowledge of the facts, the possibility of availing himself of the remedy provided for in Article 45 of that regulation.

34 In the first place, it should be noted that it follows from a comparison of Article 42(1)(b) and (2)(b) of Regulation No 1215/2012 that the court which has been requested to issue a certificate does not have to examine the jurisdiction of the court which has delivered the judgment on the substance, in contrast to what is required in the context of a judgment ordering a provisional, including a protective, measure.

35 While Article 42(1)(b) of that regulation merely requires the applicant, for the purposes of enforcing a judgment on the merits, to provide the certificate certifying that a judgment is enforceable, Article 42(2)(b) of that regulation provides that the certificate which has been submitted, for the purposes of enforcement of a judgment ordering a provisional, including a protective, measure, must specifically certify that the court of origin had jurisdiction as to the substance of the matter.

36 That finding is supported by the content of that certificate, which is set out in Annex I to that regulation, and in particular paragraph 4.6.2 of that annex, relating to provisional, including protective, measures.

37 That distinction is, moreover, consistent with the fact that, in other cases, the court which has been requested to issue the certificate is the court of origin, which has delivered the judgment on the substance, the recognition or enforcement of which is sought, and which, consequently, has formally established its jurisdiction, in an implicit or explicit manner, by giving the judgment at issue, pursuant to the wording of Article 2 of Regulation No 1215/2012.

38 In the second place, it is apparent from the wording of Article 53 of Regulation No 1215/2012 that the court of origin is required to issue the certificate where a request to that effect is submitted to it by an interested party. By contrast, that provision does not provide, in any way, that it is for that court to examine the aspects of the dispute which fall outside the scope of that provision, such as questions of substance and jurisdiction which have already been dealt with in the judgment enforcement of which is sought. Moreover, it follows from the case-law of the Court that the delivery of that certificate is almost automatic (see, to that effect, judgment of 6 September 2012, Trade Agency, C-619/10, EU:C:2012:531, paragraph 41).

39 It follows that Article 53 of Regulation No 1215/2012 must be interpreted as precluding the court of the Member State of origin, which has been requested to issue the certificate referred to in that article concerning a judgment which has acquired the force of res judicata issued against a consumer, from examining of its own motion, in a case such as that in the main proceedings, whether that judgment was given in compliance with the rules on jurisdiction laid down by that regulation.

40 In the third place, it is also necessary to examine whether the Court's case-law, mentioned in paragraph 21 of the present judgment, relating to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), read in conjunction with Article 47 of the Charter, is capable of calling that conclusion into question, in so far as it implies that the court of origin is required, in order to make up for the imbalance which exists between the consumer and the professional, to inform the consumer of its own motion of the alleged breach.

41 First, as regards the rules on jurisdiction laid down by Regulation No 1215/2012, recital 18 thereof states that the weaker party should be protected by rules of jurisdiction more favorable to his interests than the general rules.

42 That objective is implemented by detailed procedural provisions in Regulation No 1215/2012. It thus follows from Article 17(1) of that regulation that, in the cases it sets out, jurisdiction must be determined on the basis of specific rules applicable to contracts concluded between a consumer and a professional which are set out in Chapter II, Section 4 of that regulation.

43 Secondly, as regards the stage of recognition and enforcement of a judgment in the Member State in which enforcement is sought, according to recital 29 of Regulation No 1215/2012 the person against whom enforcement is sought should be able to apply for refusal of the recognition or enforcement of a judgment if he considers one of the grounds for refusal of recognition to be present, including any breach of the rules on special jurisdiction.

44 In those circumstances, as the Advocate General observed in points 76 and 77 of his Opinion, the case-law of the Court concerning Directive 93/13 is not applicable in the context of Regulation No 1215/2012, which lays down rules of a procedural nature, whereas Directive 93/13 is intended to achieve minimum harmonization of laws of the Member States concerning unfair terms in consumer contracts.

45 As regards the right to an effective remedy referred to in Article 47 of the Charter, that right has not been infringed given that Article 45 of Regulation No 1215/2012 enables the defendant to rely, in particular, on a potential breach of the rules on jurisdiction provided for in Chapter II, Section 4 of that regulation in respect of consumer contracts.

46 In the light of the foregoing, the answer to the question referred is that Article 53 of Regulation No 1215/2012, read in conjunction with Article 47 of the Charter, must be interpreted as precluding the court of origin which has been requested to issue the certificate provided for in Article 53 of that regulation in respect of a judgment which has acquired the force of res judicata from being able to ascertain of its own motion whether there has been a breach of the rules set out in Chapter II, Section 4 of that regulation, so that it may inform the consumer of any breach that is established and enable him to assess, in full knowledge of the facts, the possibility of availing himself of the remedy provided for in Article 45 of that regulation.

Costs

47 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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:

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, as amended by Commission Delegated Regulation (EU) 2015/281 of 26 November 2014 read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the court of origin which has been requested to issue the certificate provided for in Article 53 of that regulation in respect of a judgment which has acquired the force of res judicata from being able to ascertain of its own motion whether there has been a breach of the rules set out in Chapter II, Section 4 of that regulation, so that it may inform the consumer of any breach that is established and enable him to assess, in full knowledge of the facts, the possibility of availing himself of the remedy provided for in Article 45 of that regulation.