CELEX: 62018CJ0518
Reference for a preliminary ruling
Judicial cooperation in civil matters
Regulation (EC) No 805/2004
European Enforcement Order for uncontested claims
Certification of a judicial decision as a European Enforcement Order
Minimum standards applicable to uncontested claims procedures
Defendant without a known address who did not appear at the hearing

This request for a preliminary ruling concerns the interpretation of point (b) of the second subparagraph of Article 3(1) of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (
OJ 2004 L 143, p. 15
).
The request has been made in proceedings between RD and SC, a natural person whose address is unknown, concerning a rental debt.
Legal context
European Union law
In accordance with recitals 5, 6, 10, 12, 13 and 16 of Regulation No 805/2004:
‘(5)
The concept of “uncontested claims” should cover all situations in which a creditor, given the verified absence of any dispute by the debtor as to the nature or extent of a pecuniary claim, has obtained either a court decision against that debtor or an enforceable document that requires the debtor’s express consent, be it a court settlement or an authentic instrument.
(6)
The absence of objections from the debtor as stipulated in Article 3(1)(b) can take the shape of default of appearance at a court hearing or of failure to comply with an invitation by the court to give written notice of an intention to defend the case.
…
(10)
Where a court in a Member State has given judgment on an uncontested claim in the absence of participation of the debtor in the proceedings, the abolition of any checks in the Member State of enforcement is inextricably linked to and dependent upon the existence of a sufficient guarantee of observance of the rights of the defence.
…
(12)
Minimum standards should be established for the proceedings leading to the judgment in order to ensure that the debtor is informed about the court action against him, the requirements for his active participation in the proceedings to contest the claim and the consequences of his non-participation in sufficient time and in such a way as to enable him to arrange for his defence.
(13)
Due to differences between the Member States as regards the rules of civil procedure and especially those governing the service of documents, it is necessary to lay down a specific and detailed definition of those minimum standards. In particular, any method of service that is based on a legal fiction as regards the fulfilment of those minimum standards cannot be considered sufficient for the certification of a judgment as a European Enforcement Order.
…
(16)
Article 15 should apply to situations where the debtor cannot represent himself in court, as in the case of a legal person, and where a person to represent him is determined by law as well as situations where the debtor has authorised another person, in particular a lawyer, to represent him in the specific court proceedings at issue.’
Article 1 of that regulation, entitled ‘Subject matter’, states:
‘The purpose of this regulation is to create a European Enforcement Order for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement.’
Article 3 of that regulation, entitled ‘Enforcement titles to be certified as a European Enforcement Order’, provides, in paragraph 1:
‘This regulation shall apply to judgments, court settlements and authentic instruments on uncontested claims.
A claim shall be regarded as uncontested if:
(a)
the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings; or
(b)
the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or
(c)
the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin; or
(d)
the debtor has expressly agreed to it in an authentic instrument.’
Article 6 of that regulation, entitled ‘Requirements for certification as a European Enforcement Order’, states, in paragraph 1:
‘A judgment on an uncontested claim delivered in a Member State shall, upon application at any time to the court of origin, be certified as a European Enforcement Order if:
(a)
the judgment is enforceable in the Member State of origin; and
(b)
the judgment does not conflict with the rules on jurisdiction as laid down in Sections 3 and 6 of Chapter II of [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
)]; and
(c)
the court proceedings in the Member State of origin met the requirements as set out in Chapter III where a claim is uncontested within the meaning of Article 3(1)(b) or (c) ...’
Chapter III of Regulation No 805/2004, which includes its Articles 12 to 19, establishes minimum standards for uncontested claims procedures. Those standards, which are intended to safeguard the debtor’s rights of defence, concern not only the methods of service or notification of a document instituting the proceedings and other documents, but also the information contained in such a document, since the debtor must be informed of the debt and of the procedure to follow in order to contest that debt.
Article 12 of that regulation, entitled ‘Scope of application of minimum standards’, states in paragraph 1:
‘A judgment on a claim that is uncontested within the meaning of Article 3(1)(b) or (c) can be certified as a European Enforcement Order only if the court proceedings in the Member State of origin met the procedural requirements as set out in this chapter.’
Article 14 of the regulation, entitled ‘Service without proof of receipt by the debtor’, provides:
‘1.   Service of the document instituting the proceedings or an equivalent document and any summons to a court hearing on the debtor may also have been effected by one of the following methods:
…
2.   For the purposes of this regulation, service under paragraph 1 is not admissible if the debtor’s address is not known with certainty.
…’
Article 15 of that regulation, entitled ‘Service on the debtor’s representatives’, provides:
‘Service pursuant to Articles 13 or 14 may also have been effected on a debtor’s representative.’
Under Article 27 of Regulation No 805/2004, entitled ‘Relationship with Regulation (EC) No 44/2001’:
‘This regulation shall not affect the possibility of seeking recognition and enforcement, in accordance with Regulation (EC) No 44/2001, of a judgment, a court settlement or an authentic instrument on an uncontested claim.’
Czech law
Paragraph 29(3) of the zákon č. 99/1963 Sb., Občanský soudní řád (Law No 99/1963 establishing the Code of Civil Procedure; ‘the Code of Civil Procedure’) provides:
‘If he does not order other measures, the President of the Chamber may appoint a guardian ad litem for a defendant whose domicile is not known, on whom it has not been possible to serve proceedings at a known address abroad, who suffers from a mental disorder, who is unable, on other health grounds, to participate in proceedings even for a temporary period, or who is unable to express himself in a comprehensible manner.’
In accordance with Paragraph 353(1) of the Code of Civil Procedure, on application by a person entitled under a court judgment, court settlement or authentic instrument which satisfies the conditions for certification as a European Enforcement Order or partial European Enforcement Order, the court is to certify that judgment, settlement or authentic instrument as a European Enforcement order on the conditions set out in Regulation No 805/2004. If the conditions for certification are not satisfied, the court must not certify it, and must inform the person entitled of the reasons in writing.
The dispute in the main proceedings and the question referred for a preliminary ruling
By an action brought before the Okresní soud v Českých Budějovicích (District Court, České Budějovice), RD applied for payment by SC of the sum of 6600 Czech koruny (CZK) (approximately EUR 250), together with late payment interest, on the ground that, under the terms of a lease agreement concluded on 23 July 2008 which became effective on 1 August 2008, SC had the use of an apartment in České Budějovice and became contractually liable to pay rent of CZK 5600 and provisional charges of CZK 1000, making a total sum of CZK 6600 per month. On 28 September 2008, SC drafted an acknowledgement of debt and undertook to pay that debt before 30 September 2008, which she did not do.
Since, despite the research which it carried out, the referring court was unable to obtain SC’s address, a guardian ad litem was appointed to represent SC.
SC did not appear during the proceedings and nor did her guardian ad litem appear at the hearing to which he had been invited. Since RD had submitted evidence at that hearing, her application was granted. As SC’s address is not known, the decision closing the proceedings was served only on the guardian ad litem.
On 14 October 2016, RD requested that the referring court send her that judgment bearing a notice of finality and enforceability and to certify it as a European Enforcement Order in accordance with Paragraph 353(1) of the Code of Civil Procedure and Regulation No 805/2004.
By a communication of 3 November 2016, the referring court informed RD that the conditions for grant of the certificate requested were not satisfied, pointing out that a claim was to be regarded as uncontested if the debtor had expressly acknowledged or not objected to it, in accordance with the procedural rules in force in the Member State concerned, during the judicial proceedings, or if he had not appeared at a hearing relating to that claim, provided that that non-appearance was comparable to a tacit admission of the claim or of the facts relied on by the creditor, under the law of that Member State.
RD subsequently brought an action before the Ústavní soud (Constitutional Court, Czech Republic) arguing, in essence, that the national court had not referred a question to the Court of Justice of the European Union, under Article 267 TFEU, concerning whether a decision given by a court after the taking of evidence, in the absence of any objection or observations from the defendant concerning the facts, could be regarded as uncontested. In that regard, RD referred to paragraph 41 of the judgment of the Court of 16 June 2016, Pebros Servizi (
C‑511/14
,
EU:C:2016:448
), according to which, having regard to recital 6 of Regulation No 805/2004, a claim may be regarded as ‘uncontested’, within the meaning of point (b) of the second subparagraph of Article 3(1) of Regulation No 805/2004, if the debtor does not act in any way to oppose the claim, by failing to act on the request made to him by the court to give written notice of his intention to lodge his defence or appear at the hearing.
By decision of 26 September 2017, the Ústavní soud (Constitutional Court) held that the failure to certify the decision at issue in the main proceedings as a European Enforcement Order without having requested a ruling from the Court of Justice in that regard was unconstitutional.
Since it is now entertaining doubts as to whether the claim at issue in the main proceedings may be regarded as uncontested and since the decision which it must deliver is not open to challenge under domestic law, the referring court considers that it is bound to make a reference to the Court for a preliminary ruling.
In those circumstances, the Okresní soud v Českých Budějovicích (District Court, České Budějovice) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must point (b) of the second subparagraph of Article 3(1) of Regulation No 805/2004 be interpreted as meaning that a claim which has been decided on after taking evidence may be regarded as uncontested if neither the defendant, who acknowledged the debt before the commencement of the action, nor the guardian ad litem attended the hearing, and neither of them raised any objections in the course of the hearing?’
Consideration of the question referred
By its question, the referring court asks, in essence, whether Regulation No 805/2004 must be interpreted as meaning that, if it is impossible for a court to obtain the defendant’s address, it enables a judicial decision on a debt, given following a hearing which neither the defendant nor the guardian ad litem appointed for the purposes of the proceedings attended, to be certified as a European Enforcement Order.
As is apparent from Article 12 of Regulation No 805/2004, the possibility of certifying a judicial decision as a European Enforcement Order is subject to two cumulative conditions. First, such a decision must relate to an ‘uncontested’ claim within the meaning of point (b) or (c) of the second subparagraph of Article 3(1) of that regulation. That therefore refers to the absence of any objection to a claim in the course of the judicial proceedings and the tacit recognition resulting from the fact that the debtor did not attend or was not represented at a hearing in relation to that claim. Second, the judicial proceedings in which the decision in question was issued must have complied with the minimum procedural standards set out in Chapter III of that regulation.
The purpose of those minimum standards is to ensure, in accordance with recital 12 of that regulation, that the debtor is informed, first, about the court action against him, the requirements for his active participation in the proceedings to contest the claim and, secondly, the consequences of his non-participation in sufficient time and in such a way as to enable him to arrange for his defence. In the specific case of a decision delivered in default, for the purposes of point (b) of the second subparagraph of Article 3(1) of Regulation No 805/2004, those minimum procedural standards seek to ensure the existence of adequate guarantees of respect for the rights of the defence (judgment of 16 June 2016, Pebros Servizi,
C‑511/14
,
EU:C:2016:448
, paragraph
).
The Court observed that, in the light of Article 14(2) of Regulation No 805/2004 and the objectives and scheme of that regulation, a judgment by default issued in circumstances where it is impossible to ascertain the domicile of the defendant cannot be certified as a European Enforcement Order (judgment of 15 March 2012, G,
C‑292/10
,
EU:C:2012:142
, paragraph
).
That conclusion remains valid despite the appointment of a guardian ad litem for the purpose of the proceedings, by the referring court which had been unable to obtain SC’s address.
Although, indeed, Article 15 of Regulation No 805/2004 provides that, in addition to the possible methods of service or notification referred to in Article 14 thereof, service may also be effected on a debtor’s representative, it must be noted that a guardian ad litem, such as the person appointed under the national law at issue in the main proceedings, cannot be assimilated to the ‘debtor’s representative’ within the meaning of Article 15. Read in the light of recital 16 of that regulation, that provision covers only those situations where either, for legal reasons, the debtor is objectively prevented from representing himself in court or where he has voluntarily authorised someone to represent him for that purpose. However, the existence of those circumstances has not been established in the main proceedings.
Since the EU legislature has made use of the additional and optional instrument of execution constituted by the European Enforcement Order subject, inter alia, to the condition that the debtor’s address be known with certainty, which is not satisfied in a situation such as that at issue in the main proceedings, there is no need, in the present case, to ascertain whether, having regard, in particular, to recitals 5 and 6 of Regulation No 805/2004, the claim at issue in the main proceedings may be regarded as uncontested, since neither SC nor her guardian ad litem appointed by the national court participated in the proceedings, appeared at the hearing or disputed the nature and amount of that debt.
It follows from all the foregoing considerations that the answer to the question referred is that Regulation No 805/2004 must be interpreted as meaning that, where a court is unable to obtain the defendant’s address, it does not allow a judicial decision relating to a debt, made following a hearing attended by neither the defendant nor the guardian ad litem appointed for the purpose of the proceedings, to be certified as a European Enforcement Order.
Costs
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 (Sixth Chamber) hereby rules:

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 must be interpreted as meaning that, where a court is unable to obtain the defendant’s address, it does not allow a judicial decision relating to a debt, made following a hearing attended by neither the defendant nor the guardian ad litem appointed for the purpose of the proceedings, to be certified as a European Enforcement Order.

[Signatures]
(
*1
)	Language of the case: Czech.