Case C‑484/15
Ibrica Zulfikarpašić
v
Slaven Gajer
(Request for a preliminary ruling from theOpćinski sud u Novom Zagrebu— Stalna služba u Samoboru)
(Reference for a preliminary ruling— Judicial cooperation in civil matters— Regulation (EC) No805/2004— European Enforcement Order for uncontested claims— Requirements for certification as a European Enforcement Order— Concept of ‘court’— Notary who has issued a writ of execution based on an ‘authentic document’— Authentic instrument)
Summary— Judgment of the Court (Second Chamber), 9March 2017
1.Judicial cooperation in civil matters— Creation of a European Enforcement Order for uncontested claims— Regulation No805/2004— Concept of Court— Notaries acting in enforcement proceedings based on an authentic document— Ex parte proceedings— Not included
(European Parliament and Council Regulation No805/2004, Arts 3(1)(b) and (c), 5 and 12)
2.Judicial cooperation in civil matters— Creation of a European Enforcement Order for uncontested claims— Regulation No805/2004— Certification of a judgment as a European Enforcement Order— Judgment relating to an uncontested claim— Writ of execution adopted by a notary based on an authentic document and which has not been contested— Not included
(European Parliament and Council Regulation No805/2004, Recital5, and Art.3(1))
1.Regulation (EC) No805/2004 of the European Parliament and of the Council of 21April 2004 creating a European Enforcement Order for uncontested claims must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, do not fall within the concept of ‘court’ within the meaning of that regulation.
The principle of mutual trust between the Member States is, in EU law, of fundamental importance given that it allows an area without internal borders to be created and maintained, founded on the high level of confidence which should exist between the Member States (judgment of 5April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph78).
That principle results, under Article5 of Regulation No805/2004, in the recognition and enforcement of judgments which have been certified as European Enforcement Orders in the Member State of origin in the other Member States.
The preservation of the principle of legitimate expectations, in a context of the free circulation of judgments as noted in paragraphs38 and 39 of this judgment, requires a strict assessment of the defining elements of the concept of ‘court’, for the purposes of that regulation, in order to enable the national authorities to identify judgments delivered by other Member States’ courts. Compliance with the principle of mutual trust in the administration of justice in the Member States of the European Union which underlies that regulation requires, in particular, that judgments the enforcement of which is sought in a Member State other than that of the Member State of origin have been delivered in court proceedings offering guarantees of independence and impartiality and in compliance with the principle of audi alteram partem.
In the present case, it should be noted that, pursuant to the provisions of the Law on Enforcement, in Croatia, notaries have the power to give decisions by writ on applications for enforcement based on authentic documents. Once the writ has been served on the defendant, the latter may lodge objections. A notary before whom an admissible, well-founded opposition to a writ issued by that notary is raised in timely fashion is to transfer the file to the court with jurisdiction and the court must take a decision on the opposition.
It follows from those provisions that the writ of execution based on an ‘authentic document’, issued by the notary, is served on the debtor only after the writ has been adopted, without the application by which the matter is raised with the notary having been communicated to the debtor.
Although it is true that debtors have the opportunity to lodge objections against writs of execution issued by notaries and it appears that notaries exercise the responsibilities conferred on them in the context of enforcement proceedings based on an ‘authentic document’ subject to review by the courts, to which notaries must refer possible challenges, the fact remains that the examination, by notaries, in Croatia, of an application for a writ of execution on such a basis is not conducted on an inter partes basis.
According to Article12 of Regulation No805/2004, a judgment on a claim that is uncontested within the meaning of Article3(1)(b) or (c) of that regulation can be certified as a European Enforcement Order only if the court proceedings in the Member State of origin have met the minimum standards referred to in Chapter III of that regulation.
(see paras41-47, 50, operative part1)
2.Regulation No805/2004 must be interpreted as meaning that a writ of execution adopted by a notary, in Croatia, based on an ‘authentic document’, and which has not been contested may not be certified as a European Enforcement Order since it does not relate to an uncontested claim within the meaning of Article3(1) of that regulation.
It must be stated that, although, in the Croatian legal order, notaries are empowered to draw up authentic instruments, the uncontested nature of the claim established by a writ of execution adopted on the basis of an ‘authentic document’ is lacking. In accordance with recital5 of Regulation No805/2004, Article3(1)(d) of that regulation provides that an authentic instrument may be certified as a European Enforcement Order only to the extent that, in that instrument, the debtor has expressly agreed to the claim.
Moreover, the absence of any objection by the debtor cannot be placed on the same footing as express agreement to the claim, for the purposes of Article3(1)(d) of Regulation No805/2004 since that agreement must appear in the authentic instrument which is the subject of the certification.
(see paras55, 56, 58, 59, operative part2)