Opinion of the Advocate General — ECLI:EU:C:2019:645
Date: 2019-07-29
Language of the case: Finnish
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Finland

summary, examination of the very substance of the judgment at first instance. (17) 56. Furthermore, although the right to effective judicial protection implies the right of access to a court or tribunal, it does not thereby imply automatic access to a uniform procedure, even where the appeal is bound to be dismissed. It would appear that further consideration is refused, in practice, only where it is evident to all the members of the court of appeal that the appeal is completely unfounded. Indeed, according to the Finnish Government, the reasons for granting leave for further consideration must be interpreted flexibly and in favour of the party applying for that leave. (18) It is therefore only where an appeal is manifestly unfounded that it can be dismissed as early as at the stage of leave for further consideration. In all other cases, the appeal will ultimately be examined thoroughly after leave having been given therefor by the court of appeal. 57. Third, the procedure at issue in the main proceedings is compatible with Article 43 of Regulation No 44/2001 only if any decisions refusing leave duly state reasons. 58. The hearing revealed a major disagreement on that point between the Finnish Government and the Commission. The Finnish Government argued that, under the Code of judicial procedure, such a decision had to state reasons, whereas the Commission, relying on the same code, asserted that this was not necessarily the case. 59. It is not for the Court of Justice to arbitrate between those opposing positions on the correct interpretation of national law, but to identify the requirements resulting from EU law. EU law does, in fact, require decisions, such as a refusal to grant leave for further consideration of an appeal, mandatorily to state reasons. 60. First of all, the obligation to state reasons is justified, in general terms, by the two functions of that obligation. It enables the persons concerned to know the reasons that led the court to make a decision and provides a court before which an appeal against that decision may be brought with sufficient information to carry out its judicial review. (19) In that context, the Court has already held that the observance of the right to a fair trial requires that all judgments state reasons to enable the respondent to see why judgment has been pronounced against him and to bring an appropriate and effective appeal against it. (20) 61. Accordingly, were the court of appeal not bound to give reasons for its decision, in particular where it refuses to grant leave for further consideration, the right laid down in Finnish law to appeal against that refusal decision to the Supreme Court would be to a large extent hypothetical. Without a statement of reasons, it would be difficult, to say the least, appropriately to challenge the decision of the court of appeal, and the Supreme Court would be unable to assess whether that decision was well-founded. 62. Next, the obligation to state reasons in respect of a decision on appeal is especially fundamental in the context of the appeal system instituted by Regulation No 44/2001. It should be noted that, on the one hand, the decision on the application for a declaration of enforceability made at first instance is not subject to an obligation to state reasons. On the other, it would appear that, in Finland as in other Member States, an appeal to the Supreme Court against an appeal decision is also subject to a system of prior leave to proceed. 63. As a result, a decision made on conclusion of the appeal provided for in Article 43 of Regulation No 44/2001 is the first (and potentially also the last) decision in which the grounds for non-enforcement established in Articles 34 and 35 of that regulation must be taken fully into consideration. It is inconceivable that a party should be able to make use of the possibilities available under that regulation to defeat enforcement of a judgment delivered in a different Member State without ever being the addressee of a reasoned decision. (21) 64. Lastly, the fact that, in the present case, the procedure for granting leave for further consideration concerns the appeal stage is decisive as regards the obligation to state reasons. Indeed, having regard to that fact, the — completely reasonable — position of the European Court of Human Rights that a decision made in the context of a filtering procedure at the stage of cassation (a ‘second appeal’ before the supreme courts, generally limited to points of law) does not necessarily have to state reasons, (22) cannot logically apply to the procedure for granting leave for further consideration at the appeal stage where that appeal is, in reality, a first appeal remedy enabling account to be taken of the grounds for non-enforcement of the judgment delivered in a different Member State. 65. As a result, it is for the referring court to ascertain whether decisions refusing leave for further consideration of an appeal must state reasons. Were the courts of appeal not to be bound by such an obligation, the procedure for granting leave for further consideration would, to my mind, be incompatible with Article 43 of Regulation No 44/2001. Indeed, should it be found that the procedure for granting leave for further consideration was introduced into the national appeal system without taking into account the special characteristics of the system instituted by Regulation No 44/2001, that fact could lead to the procedure being followed mechanically, in a manner difficult to reconcile with the requirements of Regulation No 44/2001. 66. In the light of the foregoing, I consider that Article 43(1) of Regulation No 44/2001 does permit a procedure for granting leave for further consideration, such as that at issue in the main proceedings, provided that, in substantive terms, the grounds of non-enforcement in Articles 34 and 35 of Regulation No 44/2001 can be adduced and taken into account as reasons for granting leave for further consideration and that, in procedural terms, decisions refusing leave for further consideration are mandatorily required to state reasons. B. The second and third questions referred 67. By its second question, the referring court asks the Court of Justice, in essence, to determine whether a procedure for the granting of leave for further consideration of appeals, such as that at issue in the main proceedings, in which the respondent, or the party that has not brought the appeal, is not heard, is compatible with the adversarial principle set out in Article 43(3) of Regulation No 44/2001. 68. As regards the referring court’s third question, I understand it as seeking to ascertain the consequences of the fact that Article 43(1) of that regulation provides that appeals can be brought not only by the party seeking enforcement but also by a party against whom enforcement has been granted. 69. It is clear from the foregoing that, in essence, both of those questions share the same aim: they seek to determine whether the procedure at issue in the main proceedings is compatible with Article 43(3) of Regulation No 44/2001. I therefore propose to address them together. 70. At the outset, I do not see why such a procedure which, for legitimate reasons of the sound administration of justice, seeks above all to enable manifestly unfounded actions to be dealt with rapidly, would be incompatible with the adversarial principle. 71. Indeed, although Article 43(3) of Regulation No 44/2001 provides unambiguously that the appeal is to be dealt with in accordance with the rules governing procedure in contradictory matters, it is nevertheless clear that the EU legislature has not further clarified the requirements associated with the fact that the procedure is adversarial. Organisation of the appeal procedure is therefore within the scope of the procedural autonomy of the Member States, provided the adversarial principle, understood in the light of the special characteristics of the enforcement system established by Regulation No 44/2001, is observed. 72. The adversarial principle is crucial in the context of the system instituted by Regulation No 44/2001 to ensure the free movement of judicial decisions within the European Union. Indeed, as stated above, (23) the enforcement system is intended to enable an appellant to obtain enforcement of a judgment delivered with the necessary safeguards in a different Member State, (24) simply and rapidly, within a non-adversarial procedure. (25) In contrast, since the first ‘instance’ is not adversarial, the EU legislature expressly required that the appeal procedure should be. (26) 73. As regards the requirements associated with the adversarial principle, the Court of Justice has already stated repeatedly that, in the context of both administrative and judicial proceedings, that principle means, as a rule, that the parties to administrative or court proceedings have the right to be given an opportunity to comment on the facts and documents on which an administrative or judicial decision will be based and to discuss the evidence produced and the observations made to the administrative authority or court as well as the pleas in law raised by the authority or court of its own motion on which it intends to base its decision. (27) 74. Specifically, that rule protects a party in respect of the matters that determine (28) the adoption of a decision affecting its interests. (29) Compliance with the adversarial principle is therefore inextricably linked to the notion that the matters that serve as the basis of a decision adopted to the detriment of a party must be discussed by that party. (30) 75. So, having regard to that definition of the adversarial principle, I see no reason for finding that a procedure for granting leave for further consideration, such as that at issue in the main proceedings, infringes that principle. 76. Since the court of appeal cannot, at the stage of granting leave for further consideration, adopt a decision unfavourable to or adversely affecting the respondent, that is to say, the party that did not bring the appeal, that party’s right to adversarial proceedings is not breached if, at that stage, it does not submit any observations. 77. Accordingly, first, a refusal to grant leave for further consideration has the effect of confirming the judgment at first instance in favour of that party and, unless there is an appeal to the Supreme Court, makes it irrevocable. That decision therefore cannot adversely affect the beneficiary of the (31) judgment at first instance. 78. Second, at the hearing, the Finnish Government, without being contradicted by the Commission, confirmed that, irrespective of the status of the party bringing the appeal, a court of appeal cannot, at the stage of granting leave for further consideration, amend the substance of the decision. In particular, it cannot, for example, find the appeal to be manifestly well founded without the respondent being heard, (32) and would otherwise quite clearly be committing a serious breach of the adversarial principle. 79. Third, the decision made at the stage of granting leave for further consideration is a preliminary decision the scope of which is, by definition, limited to the further consideration of the appeal. Accordingly, it does not prejudge the ruling on the appeal following the comprehensive examination thereof. Consequently, where leave is granted without the party that did not bring the appeal — whether the appellant for enforcement or the person against whom the enforcement decision is made, as the case may be — having been invited to submit observations, that decision likewise is not of itself capable of adversely affecting that party’s interests. 80. At the hearing, in keeping with its written observations, the Commission asserted that the adversarial principle is so important that it cannot be limited and that the Finnish system of granting of leave for further consideration therefore failed to uphold that principle. 81. Apart from the fact that such an ‘absolutist’ view prevents the requirements of protecting the rights of the defence from being reconciled with other entirely legitimate interests, such as, for example, those relating to the swift and sound administration of justice, I would comment above all that the Commission has not been able to demonstrate any specific infringement of the adversarial principle in the present case. 82. Lastly, I would point out that it is apparent from the observations of the Finnish Government that the party that did not bring the appeal must in all cases be invited to express its views during the stage of the full examination of the appeal. It therefore appears that, in accordance with Article 43(3) of Regulation No 44/2001, observance of the adversarial principle is ensured at the stage at which the court of appeal’s decision can adversely affect that party. 83. In the light of the foregoing, my view is that Article 43(3) of Regulation No 44/2001 must be interpreted as meaning that a procedure for granting leave for further consideration, such as that at issue in the main proceedings, does not breach the requirement for adversarial proceedings, since the decision made at the stage of granting leave for further consideration is not, of itself, capable of adversely affecting the interests of the respondent. V. Conclusion 84. In the light of the foregoing considerations, I invite the Court of Justice to reply as follows to the questions referred for a preliminary ruling by the Korkein oikeus (Supreme Court, Finland): 1. Article 43(1) 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 does permit a procedure for granting leave for further consideration, such as that at issue in the main proceedings, provided that, in substantive terms, the grounds of non-enforcement in Articles 34 and 35 of that regulation can be adduced and taken into account as reasons for granting leave for further consideration and provided that, in procedural terms, decisions refusing leave for further consideration are mandatorily required to state reasons. 2. Article 43(3) of Regulation No 44/2001 must be interpreted as meaning that a procedure for granting leave for further consideration, such as that at issue in the main proceedings, does not breach the requirement for adversarial proceedings, since the decision made at the stage of granting leave for further consideration is not, of itself, capable of adversely affecting the interests of the respondent. 1 Original language: French. 2 Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). 3 OJ 1998 C 27, p. 1. 4 ‘The Brussels Convention’. 5 Since the proceedings before the Estonian court were brought before 10 January 2015, Regulation No 44/2001 continues to apply ratione temporis by virtue of Article 66(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). 6 See recitals 16 and 17 of Regulation No 44/2001. See also judgment of 14 December 2006, ASML (C‑283/05, EU:C:2006:787, paragraph 23). 7 In a number of language versions of Regulation No 44/2001, such as those in Spanish, French and Italian, the term used for those second instance proceedings is that corresponding to an ‘action’ (‘recours’ in French), which suggests first instance proceedings, and therefore remains faithful in functional terms to the structure of the regulation. In other language versions, in contrast, the concept used is that of an ‘appeal’ (‘appel’ in French), as borne out by the versions in English (‘appeal’) and Czech (‘opravný prostředek’), which imply second instance proceedings, in line with the fact that, in formal terms, they are often heard by a second tier court. 8 In accordance with Article 45 of Regulation No 44/2001. 9 I would point out here that, although Regulation No 1215/2012 abolished the exequatur, it did not abolish review of the grounds under Articles 34 and 35 of Regulation No 44/2001, as Articles 45 and 46 of Regulation No 1215/2012 testify. 10 ‘The Charter’. See, to that effect, judgment of 11 September 2014, A (C‑112/13, EU:C:2014:2195, paragraph 51 and the case-law cited), bearing in mind that an action brought under Article 43 of Regulation No 44/2001 to contest a decision declaring enforceability constitutes implementation of EU law within the meaning of Article 51 of the Charter (order of 13 June 2012, GREP (C‑156/12, not published, EU:C:2012:342, paragraph 31)). 11 See judgment of 8 November 2005, Leffler (C‑443/03, EU:C:2005:665, paragraph 49). 12 The European Court of Human Rights has already been called upon to rule on whether mechanisms that filter appeals at the level of appeals and of cassation appeals are compatible with Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. That Court has repeatedly held that the right of access to a court can be limited, provided that the limitations do not impair the very essence of Article 6 of that Convention and provided that they pursue a legitimate aim. That Court has found aims relating to fair administration of justice and preventing courts from becoming overloaded with cases to be legitimate [ECtHR, 13 July 1995, Tolstoy Miloslavsky v. United Kingdom (CE:ECHR:1995:0713JUD001813991, § 61); 19 December 1997, Brualla Gómez de la Torre v. Spain (CE:ECHR:1997:1219JUD002673795, § 36) and 11 October 2001, Rodríguez Valín v. Spain, CE:ECHR:2001:1011JUD004779299, § 22)]. 13 See, as regards judicial cooperation in civil matters, judgments of 8 November 2005, Leffler (C‑443/03, EU:C:2005:665, paragraph 50), and of 9 November 2016, ENEFI (C‑212/15, EU:C:2016:841, paragraph 30). 14 See judgments of 26 September 2018, Belastingdienst v Toeslagen (Suspensory effect of an appeal) (C‑175/17, EU:C:2018:776, paragraph 47), and of 26 September 2018, Staatssecretaris van Veiligheid en justitie (Suspensory effect of an appeal) (C‑180/17, EU:C:2018:775, paragraph 43). 15 Which is not the same thing as a right to more than one level of jurisdiction. It is clear from the case-law of the Court of Justice that the principle of effective judicial protection affords an individual a right of access to a court or tribunal but not to a number of levels of jurisdiction (judgment of 28 July 2011, Samba Diouf (C‑69/10, EU:C:2011:524, paragraph 69)). 16 See order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission (C‑73/10 P, EU:C:2010:684, paragraph 53 and the European Court of Human Rights case-law cited). 17 In that respect the procedure for granting leave for further consideration can be compared with the application for leave to seek judicial review at issue in North East Pylon Pressure Campaign and Sheehy (judgment of 15 March 2018, C‑470/16, EU:C:2018:185). 18 Furthermore, it seems to be apparent from Chapter 25a, Paragraph 18, of the Code of judicial procedure that leave for further consideration is to be granted, where the formation of the court consists of three members, if at least one of the members is in favour of granting leave. 19 See, inter alia, judgment of 15 November 2012, Council v Bamba (C‑417/11 P, EU:C:2012:718, paragraph 49). 20 See judgment of 6 September 2012, Trade Agency (C‑619/10, EU:C:2012:531, paragraph 53). 21 The importance of being the addressee of a reasoned decision is also reinforced by the fact that a reading of Article 44 of Regulation No 44/2001, in conjunction with Annex IV thereto, shows that the Member States are not bound to provide for an appeal against the decision made on conclusion of the appeal provided for in Article 43 of that regulation. 22 See ECtHR decisions on admissibility of 9 March 1999, société anonyme Immeuble groupe Kosser v. France (CE:ECHR:1999:0309DEC003874897); of 28 January 2003, Burg and Others v. France (CE:ECHR:2003:0128DEC003476302), and of 6 September 2005, Glender v. Sweden (CE:ECHR:2005:0906DEC002807003). 23 See points 24 to 26 of this Opinion. 24 See, in the context of the Brussels Convention, judgments of 21 May 1980, Denilauler (125/79, EU:C:1980:130, paragraph 14); of 12 July 1984, P. (178/83, EU:C:1984:272, paragraph 11), and of 10 July 1986, Carron (198/85, EU:C:1986:313, paragraph 8). 25 Article 41 of Regulation No 44/2001 states unambiguously that ‘the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.’ 26 See judgment of 11 May 2000, Renault (C‑38/98, EU:C:2000:225, paragraph 21 and the case-law cited). 27 As regards administrative proceedings in the context of implementing EU law in the Member States, see judgments of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38 and the case-law cited); of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 46 and the case-law cited), and of 9 November 2017, Ispas (C‑298/16, EU:C:2017:843, paragraph 26). In relation to administrative or judicial proceedings before the courts or authorities of the European Union, see judgment of 17 December 2009, Réexamen M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 41 and the case-law cited). 28 See judgments of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742, paragraph 56), and of 17 December 2009, Réexamen M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 41). See, by analogy, the position of the ECtHR in the judgment of 20 July 2001, Pellegrini v. Italy (CE:ECHR:2001:0720JUD003088296, § 44). 29 In administrative cases, for it to be found that there has been infringement of a party’s rights of the defence such as to give rise to annulment of an EU decision, the interests of that party must have been adversely affected (see, for an example of that case-law being applied, judgment of 2 October 2003, Corus UK v Commission (C‑199/99 P, EU:C:2003:531, paragraphs 19 to 25)). As regards infringement of the adversarial principle before the EU courts, I would note that, under Article 58(1) of the Statute of the Court of Justice of the European Union, only breaches of procedure before the General Court that adversely affect the interests of the appellant can be grounds for an appeal. 30 For both the Court of Justice and the European Court of Human Rights, the extent of the guarantees associated with upholding the adversarial principle, considered on its own or as a component of the rights of the defence, can vary depending, in particular, on the specific circumstances of the proceedings at issue (judgment of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 54)). See, in general, Fricero, N., ‘Le droit à une procédure civile contradictoire dans la jurisprudence de la Cour européenne des droits de l’homme’, Revue trimestrielle des droits de l’homme, Anthemis, Wavre, 2016, pp. 381 to 393, particularly pp. 388 to 390. 31 Under Chapter 25a, Paragraph 17, of the Code of judicial procedure, if leave for further consideration is not granted, the decision of the district court stands. 32 An analogy can be drawn in that respect with the simplified handling of appeals by the Court of Justice. Where an appeal is manifestly unfounded, the Court can decide to dismiss that appeal by reasoned order without hearing the parties. Conversely, where an appeal is manifestly well founded, the Court can declare it to be manifestly well founded only after hearing the parties (see Articles 181 and 182 respectively of the Rules of Procedure of the Court of Justice).