Opinion of the Advocate General — ECLI:EU:C:2009:134
Date: 2009-03-05
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Spain

summary procedure which did not involve any discussion between the parties and which was resolved by decree. (61) The Italian Pretori (Magistrates) have also been held to perform a judicial function where they combine the functions of an examining magistrate and a prosecutor, as was the case in Pretore di Cento and Pretore di Salò. (62) The Court has also taken into consideration situations where a decision is nominally taken by a political body but the substantive decision is left to a court. That was the case in Garofalo and Others, (63) in which the Court was required to determine whether the Italian Council of State complied with the requirements of Article 234 EC when it issued an opinion in an extraordinary petition, the final decision on which would be referred to the President of the Italian Republic for a formal ruling. Furthermore, the advisory capacity of certain courts, which do not issue a binding act, has been regarded as sufficient for referring a preliminary ruling, in accordance with the judgments in Österreichischer Gewerkschaftsbund (64) and Felix Swoboda. (65) Recently, when giving its second preliminary ruling under the urgent procedure, the Court accepted, in Santesteban Goicoechea, (66) a reference from the indictment division of a French court of appeal. According to the French Council of State, such bodies have administrative jurisdiction when, as occurred in that case, they draw up an opinion on a request for extradition. The Court concentrated in its analysis on the binding nature of the decisions of those bodies and did not attach great importance to the non-judicial nature of their decisions. (67) 59. Further, where the requirements for establishing a judicial function are not satisfied, the Court laid down a special exception in Job Centre in which, having declared that the Tribunale civile e penale di Milano lacked jurisdiction on the grounds that it was exercising administrative authority, the Court went on to state: ‘Only if the person empowered under national law to apply for such confirmation seeks judicial review of a decision rejecting that application – and thus of the application for registration – may the court seised be regarded as exercising a judicial function, for the purposes of Article [234], in respect of an application for the annulment of a measure adversely affecting the petitioner.’ (68) That alteration of case-law has a laudable purpose, since, where a reference for a preliminary ruling in a quasi-judicial procedure is ruled inadmissible, there is a risk that the system of remedies against the decisions of the court concerned is also unusual in nature. In those circumstances, the reference for a preliminary ruling would never reach the Court, regardless of its importance to the dispute and to the consistency of Community law. 60. The Court applied that exception in Cartesio, (69) a reference for a preliminary ruling from the Szegedi Ítélőtábla (Court of Appeal, Szeged) (Hungary), in an appeal against a decision to refuse registration adopted by a commercial court. Despite the fact that the procedure at first instance was not inter partes and the decision resolving that procedure was not judicial in nature, the Court found that, notwithstanding the particular features of the procedure, at the appeal stage there were sufficient grounds for applying the exception laid down in Job Centre. It is important to point out that the procedure at first instance and the appeal were heard by two different courts, that there were marked special procedural features, and that Cartesio was the only party to have entered an appearance. Even so, for the purposes of replying to the uncertainties raised in the proceedings, the Court recognised the jurisdiction of the appeal court to seek a preliminary ruling. 3. The case-law applied to the present case 61. It may be inferred from the order for reference and from the national law applicable to the main proceedings that the Juzgado de Primera Instancia e Instrucción No 5 de San Javier is seised of an application for review of a measure of organisation adopted by the clerk of that court, ruling inadmissible a request for the service of extrajudicial documents. It is necessary to establish whether the reference for a preliminary ruling is admissible in the light of two independent elements: the requirement that the proceedings must be inter partes, on the one hand, and the requirement that the decision of the referring court must be judicial in nature, on the other. a) The inter partes principle in the present case 62. Roda Golf lodged the action for review against a decision of a court clerk which precluded it from relying on Regulation No 1348/2000 and had a direct effect on its legal rights. The purpose of the action is to expedite the service of judicial and extrajudicial documents, specifically to protect the powers and rights of those who are competent or have a duty to notify certain acts. It is clear, therefore, that Roda Golf has a direct interest in bringing an action for review. 63. In addition, during the review the referring court considers only whether there has been an infringement of ‘any legal provisions’ (Article 224(2) LEC). The decision resolving the action upholds or dismisses a legal argument. Accordingly, the referring court is seised of a matter which was delimited beforehand in the application lodged by Roda Golf. 64. Finally, actions for review are governed by civil legislation on the review of orders, interim decisions and, exceptionally, measures of organisation. Such actions are subject to the general rules on appeals and to the principles underlying effective judicial protection. (70) The referring court must ensure observance of all the procedural safeguards to which Roda Golf is entitled in any challenge brought before the Spanish civil courts. 65. Consequently, the main proceedings are inter partes for the purposes of the reference for a preliminary ruling. b) The judicial nature of the function carried out by the referring court in the present case 66. When adopting the measure of organisation which is contested in the main proceedings, the clerk of the court was not acting as a judicial authority. The tasks which individuals charged with assisting judges must perform do not transform those individuals into courts. It is significant that their decisions are reviewable by their hierarchical superiors, in accordance with Article 224 LEC. Moreover, there would be an infringement of the Job Centre case-law were the reference to arise as a result of proceedings the sole purpose of which was the service of documents under Regulation No 1348/2000, since the measures laid down in that provision are used to monitor the correct operation of a civil procedure but not proceedings themselves. 67. However, in the instant case, it is appropriate to apply the exception laid down in the Job Centre judgment, in accordance with which the reference for a preliminary ruling is admissible if it arises in the context of a subsequent action, notwithstanding the fact that original competence for the matter was not judicial. As I have explained above, having regard to the official who first gave a decision on the request and to the subject-matter in issue, the Juzgado de Primera Instancia e Instrucción No 5 de San Javier is not acting in a judicial context in the case referred. However, by seeking a preliminary ruling in the context of an action for review, the referring court is ‘exercising a judicial function ... in respect of an application for the annulment of a measure adversely affecting the petitioner’. (71) 68. As I have argued, actions for review are a Spanish civil law remedy and are classified as non-devolutive appeals because they are heard by the court which gave the contested decision. Actions for review are governed by specific rules but also by the general provisions of the LEC. That argument is borne out by the fact that the action may be brought where there is evidence of a direct interest, where the subject-matter is clearly defined and where there is full compliance with all the procedural safeguards, as I explained in points 62 to 64 of this Opinion. 69. Therefore, the judicial nature of the function carried out is established for the purposes of the reference for a preliminary ruling. 4. Corollary 70. In the light of all of the foregoing considerations, since it has been confirmed that the main proceedings are inter partes and that the function performed by the referring court is judicial in nature, I propose that the Court should dismiss the second plea of inadmissibility raised by the Commission. VI – The questions referred for a preliminary ruling 71. The aim of Regulation No 1348/2000 was to improve the internal market, in view of the fact that efficiency and speed in the service of judicial and extrajudicial documents contributes to strengthening the objectives of the Treaties. It was not a new initiative since, as long ago as the 1960s, in the context of the Hague Conference, the 1965 convention on the subject was adopted and has since been ratified by the majority of the Member States of the European Union. (72) The Treaty of Amsterdam impeded the entry into force of another convention on the service of documents, drafted in accordance with the former Article K.3 EU, (73) but its subject-matter was revived in the regulation which the Court is now required to interpret. 72. As the title suggests, Regulation No 1348/2000 concerns the service of judicial and extrajudicial documents but is limited to civil and commercial matters. The Juzgado de Primera Instancia e Instrucción No 5 de San Javier seeks a precise definition of ‘extrajudicial documents’ because it is uncertain whether a notarial instrument of notification and request, accompanying 16 letters giving notice of the termination of a contract of sale, is that type of document. 73. Two distinct but occasionally intertwined points of view are apparent from the written observations lodged in these preliminary ruling proceedings. On the one hand, two Member States maintain that extrajudicial documents may be served under Regulation No 1348/2000 only where court proceedings have been commenced. Since ordinary declaratory proceedings have not yet been commenced in the matter referred by the Juzgado de Primera Instancia e Instrucción No 5 de San Javier, those Member States have proposed that the Court should restrict the service of extrajudicial documents to situations where proceedings are under way, taking the view that that resolves the question referred by the Spanish court. On the other hand, the majority of the Member States, together with the Commission and the applicant in the main proceedings, contend that Regulation No 1348/2000 applies to the service of extrajudicial documents even where proceedings have not been commenced, basing their contention on Article 16 of the regulation, which governs such documents. 74. The referring court has referred two questions and that duality is reflected in the views put forward by those who have participated in these proceedings. There is a clear continuity between the two questions even though they are separate entities, and therefore I propose that the Court should act in the same way by first of all considering whether Regulation No 1348/2000 provides for the service of extrajudicial documents where court proceedings have not been commenced and, second, by supplying an authoritative interpretation of ‘extrajudicial documents’, a term which, unlike judicial documents, has not been defined in the regulation. A – The procedural context of extrajudicial documents and the requirement that there must be a dispute 75. The Kingdom of Spain and the Slovak Republic argue vigorously that, even though they refer to contexts unconnected with the legal reality, extrajudicial documents are governed by Regulation No 1348/2000 if their service is essential during court proceedings. That may be deduced from the functions normally performed by courts in the legal traditions of the Member States and from a literal interpretation of the preamble to Regulation No 1348/2000. 76. Recital 6 in the preamble to the regulation refers to ‘[e]fficiency and speed in judicial procedures in civil matters’ and states that ‘the transmission of judicial and extrajudicial documents is to be made direct and by rapid means’. It follows from that statement that the regulation is aimed at the improvement of procedures with a cross-border element. Accordingly, those Member States argue, the scope of Regulation No 1348/2000 is restricted to the service of extrajudicial documents in proceedings brought before a national court. 77. The view of the Commission, to the effect that an extrajudicial document becomes a judicial document as soon as it is entered in a case-file, cannot be upheld. (74) During proceedings, it is occasionally necessary to have recourse to Regulation No 1348/2000 to serve documents such as notarial acts or company resolutions, but that fact does not transform those documents into judicial documents merely because they are in the record of the proceedings of which a court is seised. However, the Commission is more persuasive in its assertion that such an extensive limitation of the scope of Regulation No 1348/2000 would have been expressly mentioned in the provision. The broad interpretation of a recital is perhaps not the most convincing argument to bolster the position of the Kingdom of Spain and the Slovak Republic, particularly when there are other more persuasive arguments in support of the opposing view. 78. Article 65 EC is the legal basis for Regulation No 1348/2000. The acts of secondary law which may be adopted under the article are ‘[m]easures in the field of judicial cooperation in civil matters having cross-border implications’, provided that they contribute to the ‘proper functioning of the internal market’. The article refers to the service of judicial and extrajudicial documents but states nothing to support the view that proceedings must be under way. Rather, Regulation No 1348/2000 calls for flexibility, speed, efficiency and the smooth transmission of both judicial and extrajudicial documents without requiring at any point that those documents must be included in a record of court proceedings. Recital 6 might have been drafted as a reminder of the particular importance which the expeditious transmission of documents acquires during court proceedings, without being exclusive in nature vis-à-vis other situations. (75) 79. In addition, the glossary approved by the Commission, which is not intended to be exhaustive but provides a very good indication of the variety of documents in each Member State, favours a broad interpretation of the scope of Regulation No 1348/2000. For example, the glossary categorises as extrajudicial documents Belgian, German and Hungarian notarial acts. Portugal provides a detailed list of private legal instruments, such as instruments concerning the assignment of credit, the resignation of a company director and mergers and acquisitions. As far as the United Kingdom is concerned, ‘[l]egal documents which must be served in connection with any non-judicial civil or commercial matter’ are extrajudicial documents. However, the most striking example is that of Austria, which classifies ‘documents seeking to safeguard, pursue or counter a civil or commercial claim, but without involving civil court proceedings’ as extrajudicial documents. (76) 80. It may be inferred from all of the foregoing that, for the purposes of Regulation No 1348/2000, ‘extrajudicial documents’ are not only documents which are included in a case-file and that instead the term also covers documents which are required to be served regardless of whether or not proceedings have been commenced. I acknowledge that a hasty interpretation might lead to abuses which would be liable to overload the operational capacities of national courts. However, that concern does not justify restricting the scope of Regulation No 1348/2000. Instead, it must be taken into account when considering the definition of ‘extrajudicial documents’, a point which it is appropriate to examine next. B – The definition of ‘extrajudicial documents’ for the purposes of Regulation No 1348/2000 81. All the Member States which have participated in these preliminary ruling proceedings argue that it is for each national legislature to define ‘extrajudicial documents’ for the purposes of Article 16 of Regulation No 1348/2000. While a number of States, such as Latvia and Germany, contend that the matter as a whole should be resolved by reference to national legislation, other States, such as the Czech Republic, Hungary, Poland, Spain, Greece and Italy, propose a more composite approach, suggesting a number of common criteria to give substance to a Community definition while reiterating that each Member State has a certain freedom to define the concept. 82. With a view to resolving that delicate situation, (77) I believe that it is appropriate to refer to the case-law of the Court, specifically to the developing case-law on Regulation No 1348/2000, which provides some important guidance. In Leffler, (78) the Court was seised of the first reference for a preliminary ruling on the interpretation of that provision and it explained the consequences arising from the refusal of an addressee to accept a document served under Regulation No 1348/2000. The Court dismissed outright the claim that the effects of that refusal should be governed by each national legal system, citing the risks of a fragmented interpretation of the regulation. Declaring that the Treaty of Amsterdam had given ‘a new dimension’ (79) to measures adopted under what is now Title IV of the EC Treaty, the Court held that such a situation testifies to ‘the will of the Member States to establish such measures firmly in the Community legal order and thus to lay down the principle that they are to be interpreted autonomously’. (80) In addition, the Court observed in that judgment that ‘the choice of the form of a regulation, rather than that of a directive initially proposed by the Commission, shows the importance which the Community legislature attaches to the direct applicability of the regulation’s provisions and their uniform application’. (81) The Court reached the same finding in Weiss und Partner, (82) again insisting, in connection with the effects of a refusal to accept service, that Regulation No 1348/2000 must be applied uniformly. (83) 83. In those circumstances, I do not believe that Article 16 of Regulation No 1348/2000 refers unconditionally to national law for the purposes of defining the Community concept of ‘extrajudicial documents’. Such an important reference would be expressed in the regulation itself but neither its articles nor its history indicate such an intention. It is possible to dispute the level of harmonisation pursued by the regulation but the Member States may not manipulate the interpretation of Article 16 of Regulation No 1348/2000 to suit themselves. 84. The wording of the article is somewhat ambiguous. It merely provides that extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of the regulation. That paucity of words contrasts with the preceding 14 articles which provide in detail for the service of judicial documents. 85. In that connection, I agree with the Czech Republic which defines extrajudicial documents ‘by reference to the law of the State of origin, interpreted in the light of the aim of the regulation and the general principles which flow from all the national legal systems’. (84) That is the best way of approaching this case, since, with regard to extrajudicial documents, it was the intention of Regulation No 1348/2000 to take advantage of the experience of each Member State. The glossary adopted by the Commission reflects that national plurality and lays down guidelines not only for the documents listed therein but also for those which are not included but which, in accordance with a systematic analysis, fall within the scope of Regulation No 1348/2000. Article 16 recognises that the term ‘extrajudicial documents’ has a Community dimension even though it gives the Member States an important role, which is to provide a model to ensure that the Community definition covers all documents which, in accordance with the traditions of the Member States, are capable of being extrajudicial in nature. (85) 86. Accordingly, I invite the Court to define ‘extrajudicial documents’ for the purposes of Regulation No 1348/2000 in a manner which respects and is consistent with the legal diversity of the Member States and the objectives of the regulation. 87. The first clue to the definition of ‘extrajudicial documents’ is found in the legislation preceding Regulation No 1348/2000. The most important precedent is the 1965 Hague Convention which was ratified by the vast majority of the Member States and on which the Court relied in Weiss und Partner. (86) Unlike the regulation in issue in these proceedings, Article 17 of the convention defines the term ‘extrajudicial documents’ as documents ‘emanating from authorities and judicial officers of a Contracting State’. Accordingly, under the convention, only public documents are extrajudicial in nature. (87) 88. Another important precedent is the 1997 Convention on the Service of Judicial and Extrajudicial Documents, which was drawn up on the basis of the now repealed Article K.3 EU and never entered into force. As I pointed out above, Regulation No 1348/2000 inherited the provisions of the draft convention, including the current Article 16. However, the draft convention contained a highly important explanatory report on which the Court also relied in Weiss und Partner. (88) In the commentary on Article 1, the report acknowledged the difficulty of forming a precise definition of ‘extrajudicial documents’. However, it went on to state that the term covers ‘documents drawn up by a public officer, for example a notarial deed or a writ, documents drawn up by Member States’ official authorities or documents of a type or importance which require them to be transmitted and brought to the addressee’s attention by official procedure’. That is a wider definition than the one in the Hague Convention, since, in addition to extrajudicial documents adopted by public authorities, it also covers other forms of document which are strictly private but particularly important vis-à-vis legal relationships. 89. Also informative is the glossary drawn up by the Commission, which includes an extremely wide variety of documents with only a limited number of shared features. In the light of that diversity, I propose that the Court should analyse the definition of ‘extrajudicial documents’ for the purposes of Regulation No 1348/2000 in the light of three central features which are referred to in the examples supplied in the glossary. 90. First, there are extrajudicial documents which require the involvement of an authority or a public act, particularly an ‘authority’ other than the courts of the sending State, which is exercising public powers. The term ‘involvement’ indicates that the document must be issued by that authority or that its subject-matter must be ratified by a public declaration. (89) Similarly, involvement by ‘public act’ refers to extrajudicial documents whose official nature does not arise from an individual or collegiate authority but rather from a legislative act. Thus, there are documents whose effects, conferred directly by law, are so important under a national legal system that they warrant service in accordance with Regulation No 1348/2000. The explanatory report on the 1997 convention covers such acts when it refers to ‘documents of a type or importance which require them to be transmitted and brought to the addressee’s attention by official procedure’. 91. Second, such documents give rise to specific and different legal effects because they have undergone a formal procedure. The mere involvement of a public authority does not mean that all extrajudicial documents assume a character which differs from the one they would have had if they had not been submitted to that authority. Under national law, it is appropriate to require individuals to have recourse to the public authorities to strengthen the effectiveness of certain documents and, consequently, to bring stability and certainty to legal relationships. However, where the involvement of a public authority does not have a bearing on the effectiveness of a document, it is my view that it is not an ‘extrajudicial document’ within the meaning of Regulation No 1348/2000. Thus, in the present case, whether notice of termination of a contract of sale is given by private letter or by the involvement of a public authority formally recorded in a notarial instrument of notification and request is a matter which is capable of substantially altering the classification of the document concerned. (90) 92. Third, to maintain consistency with the principal objective of the regulation, which is essentially to ensure efficient and rapid judicial cooperation in the territory of the Community, the extrajudicial document concerned must support a claim in possible court proceedings. There must be evidence of a connection, however slight, between the need for service, on the one hand, and the activation of the mechanisms of Regulation No 1348/2000, on the other. Otherwise, national courts would become courier services for litigants who have not even commenced proceedings. The Court must have regard to that situation by restricting the definition of ‘extrajudicial documents’ in accordance with this third requirement. 93. Consequently, it is my view that ‘extrajudicial documents’ are documents which, first, require the involvement of an authority or a public act; second, give rise to specific and different legal effects as a result of that involvement; and, third, are used to support a claim in possible court proceedings. It is for the national court to determine whether a notarial instrument of notification and request, used to give notice of the termination of a contract for the sale of immovable property, is an ‘extrajudicial document’ in the light of the three requirements set out. VII – Conclusion 94. In the light of all of the foregoing considerations, I suggest that the Court should reply to the Juzgado de Primera Instancia e Instrucción No 5 de San Javier, declaring that (1) for the purposes of Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, ‘extrajudicial documents’ are not only documents which are included in a case-file and instead the term also covers documents which are required to be served regardless of whether proceedings have been commenced; (2) for the purposes of Regulation No 1348/2000, ‘extrajudicial documents’ are documents which, first, require the involvement of an authority or a public act; second, give rise to specific and different legal effects as a result of that involvement; and, third, are used to support a claim in possible court proceedings; (3) it is for the national court to determine whether a notarial instrument of notification and request, used to give notice of the termination of a contract for the sale of immovable property, is an ‘extrajudicial document’ in the light of the three requirements set out. 1 – Original language: Spanish. 2 – OJ 2000 L 160, p. 37. 3 – Case C‑99/00 [2002] ECR I‑4839. 4 – Case C‑111/94 [1995] ECR I‑3361. 5 – Regulation No 1348/2000 was repealed and replaced by 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 (OJ 2007 L 324, p. 79). However, the new legislation does not include any changes that are material to this reference for a preliminary ruling. 6 – Commission Decision 2001/781/EC of 25 September 2001 adopting a manual of receiving agencies and a glossary of documents that may be served under Council Regulation (EC)No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 2001 L 298, p. 1). That instrument has been amended twice, by Commission Decision 2002/350/EC of 3 April 2002 (OJ 2002 L 125, p. 1) and by Commission Decision 2007/500/EC of 16 July 2007 (OJ 2007 L 185, p. 24), neither of which have a bearing on this case. 7 – BOE No 7 of 8 January 2000. 8 – Decree of 2 June definitively adopting the Reglamento de la Organización y Régimen del Notariado (Regulations governing the Organisation of and the Legal Provisions applicable to the Profession of Notary) (BOE No 189 of 7 July 1944). 9 – Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) sets out the ne bis in idem principle, the case-law on which has helped to strengthen the mutual recognition of judicial decisions in criminal matters. 10 – The serious problems which have arisen in that field have led to a reversal of judicial precedent. See, for example, Case C‑127/08 Metock and Others [2008] ECR I‑0000. 11 – The most emblematic symbol of that profound change is Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), which has led to extremely far-reaching decisions, such as the judgment in Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 28. 12 – [‘General framework for a proposed reform of the Treaties, commentary on Article G’]. The text may be found in Revue Trimestrielle de Droit Européen, No 1, 33, 1997, p. 187. On the origins of the provision, see Albors-Llorens, A., ‘Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam, Common Market Law Review, No 35, 1998, pp. 1273 to 1276; Langrish, S., ‘The Treaty of Amsterdam: Selected Highlights’, European Law Review, No 23, 1998, p. 8, and Labayle, H., ‘Le Traité d’Amsterdam. Un espace de liberté, de sécurité et de justice’, Revue Trimestrielle de Droit Européen, No 33, 1997, pp. 873 and 874. 13 – Report of the Court of Justice of May 1995. 14 – The Court expresses that concern clearly in paragraph 11: ‘To limit access to the Court would have the effect of jeopardising the uniform application and interpretation of Community law throughout the Union, and could deprive individuals of effective judicial protection and undermine the unity of the case-law ... The preliminary ruling system is the veritable cornerstone of the operation of the internal market, since it plays a fundamental role in ensuring that the law established by the Treaties retains its Community character with a view to guaranteeing that that law has the same effect in all circumstances in all the Member States of the European Union … One of the Court’s essential tasks is to ensure just such a uniform interpretation, and it discharges that duty by answering the questions put to it by the national courts and tribunals.’ 15 – Those Member States apart from Spain have provided that any of their courts may make a reference for a preliminary ruling under Article 35 EU. Although there are no updates regarding declarations, a useful document, drawn up by the Research and Documentation Service of the Court of Justice, may be viewed at http://curia.europa.eu/en/instit/txtdocfr/txtsenvigueur/art35.pdf. 16 – In addition to the undoubted risks to the consistency and uniformity of case-law (not to mention the undermining of basic procedural safeguards, such as the ones relating to transparency), the new urgent preliminary ruling procedure, adopted on 15 January 2008 (OJ 2008 L 24, p. 39) and governed by Article 104b of the Rules of Procedure of the Court of Justice, is also capable of compromising the operational capacity of the Court in the event of a (quite possible) deluge of references in the future. Despite those risks, nothing has deterred the supporters of the new procedure. 17 – Magna Carta Libertatum, clause 40. On the evolution of the principle underlying the right of access to justice, see Zuckerman, A., Zuckerman on Civil Procedure. Rules and Procedures, Sweet & Maxwell, London, 2006, pp. 59 to 64. 18 – Article 6 of the convention. 19 – Article 47 of the charter. 20 – Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heyens and Others [1987] ECR 4097, paragraph 14; Case C‑424/99 Commission v Austria [2001] ECR I‑9285, paragraph 45; Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 39; and Case C‑467/01 Eribrand [2003] ECR I‑6471, paragraph 61. 21 – Judgment of the German Bundesverfassungsgericht of 9 January 2001 and judgment of the Spanish Tribunal Constitucional 58/2004 of 19 April 2004. The following commentaries on those judgments are interesting: Arndt, F., ‘The German Federal Constitutional Court at the Intersection of National and European Law: Two Recent Decisions’, German Law Journal, No 11, 2001, and Alonso García, R., ‘Comentario a la sentencia 58/2004’, Common Market Law Review, No 42, 2005. 22 – Martín Rodríguez, P., ‘La cuestión prejudicial como garantía constitucional: a vueltas con la relevancia constitucional de derecho comunitario’, Revista Española de Derecho Constitucional, No 72, 2004, and Azpitarte Sánchez, M., El Tribunal Constitucional ante el control del derecho comunitario derivado, Civitas, Madrid, 2002. 23 – Case C‑210/06 Cartesio [2008] ECR I‑0000, paragraphs 96 and 97. 24 – Some commentators advocate the application of this criterion to Article 68 EC, Baquero Cruz, J. ‘El Auto Dem’Yanenko: expulsión de ciudadanos de terceros Estados y TJCE’, Revista Española de Derecho Comunitario Europeo, No 19, 2004, p. 944 et seq. 25 – Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 20. 26 – Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the Court of Justice of the European Communities - Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection of 28 June 2006 (COM(2006) 346 final). That document, which is extremely critical of Article 68 EC, contrasts with the position of the Commission in the present proceedings. If the Commission is of the opinion that the article impedes access to justice, I am at a loss to understand how it can argue so vehemently that the question submitted by the referring court is inadmissible, particularly in view of the fact that, as is clear from an analysis of the substance of the proceedings, the Commission proposes a maximalist interpretation of Regulation No 1348/2000, which demonstrates the clear importance of this case for the parties to the dispute and also for the law of the developing area of freedom, security and justice. 27 – Ibid., p. 6. 28 – Ibid. 29 – Ibid., p. 7. 30 – Pescatore, P., ‘Preliminary Rulings – Evolution of the System’, 50th Anniversary of the Court of Justice of the European Communities. Conference on Cooperation between the Court of Justice and the National Courts, Publications Office, Luxembourg, 2003, p. 29. 31 – I have borrowed that expression from Robert Lecourt, former President of the Court, who used it in his work ‘Le rôle unificateur du juge dans la Communauté’, Études de droit des Communautés Européennes, Mélanges offerts à Pierre-Henri Teitgen, Pedone, Paris, 1984, p. 227. 32 – Komárek, J., ‘In the court(s) we trust? On the need for hierarchy and differentiation in the preliminary ruling procedure’, European Law Review, No 32, 2007, p. 486 et seq., proposes an alternative model of the Community judicial system, which combines hierarchy with differentiation, using as a foundation the restrictions laid down in Article 68 EC. 33 – Cited above. 34 – Opinion of Advocate General Tizzano, points 32 to 38. The Court took that approach in the early judgment in Case 6/64 Costa [1964] ECR 585, and also in Case 107/76 Hoffmann-La Roche [1977] ECR 957. Although it is only for the sake of interest, I feel I must point out that, while in Lyckeskog the Court sought to base its findings on Costa, it cited the case incorrectly and founded the specific-case approach on Joined Cases 28/62 to 30/62 Da Costaand Others [1963] ECR 31. The similarity between the names of the parties in both cases is clear but, unless I am mistaken, the Da Costa judgment, which first laid down the acte clair doctrine, contributes little to the dispute resolved in Lyckeskog. 35 – The overwhelming majority of academic legal writers also take that view. Particularly emphatic is Alonso García, R., El juez español y el Derecho comunitario, Tirant lo Blanch, Valencia, 2003, p. 228: ‘if national courts against whose decisions there is no judicial remedy are excluded from seeking a preliminary ruling on interpretation or on validity from the Court of Justice, an interpretation of that system in accordance with the abstract or organic approach would be liable to lead to serious errors not only of interpretation but also in the application of Title IV of the Treaty, since it would leave the way open for national courts to declare Community acts invalid, and such decisions would be irreversible if they were made, at sole or last instance, by lower courts’. See also Cheneviere, C., ‘L’article 68 CE – Rapide survol d’un renvoi préjudiciel mal compris’, Cahiers de Droit Européen, No 40, 2004, pp. 569 to 572; Girerd, P., ‘L’article 68 CE: un renvoi préjudicial d’interpretation et d’application incertaines’, Revue Trimestrielle de Droit Européen, No 35 (2), 1999, p. 243, and Valle Gálvez, A., ‘Las nuevas competencias del Tribunal de Justicia de las CCEE tras el Tratado de Ámsterdam’, Noticias de la Unión Europea, 2000, No 186, p. 29. 36 – Case C‑18/02 DFDS Torline [2004] ECR I‑1417. 37 – Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 38 – Strictly speaking, the case did not fall within the scope of Article 68 EC because, although 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) was already in force when the reference was made, it was not applicable in Danish territory where it was only possible to rely on the Brussels Convention which, in the other Member States, had become a Community instrument thanks to the regulation. 39 – Articles 451 to 454 LEC. 40 – Armenta Deu, T., Lecciones de Derecho Procesal Civil, 3rd edition, Marcial Pons, Madrid, 2007, pp. 239 to 241, and Díez-Picazo, I. and de la Oliva Santos, A., Derecho Procesal Civil. El proceso de declaración, 3rd edition, Ramón Areces, Madrid, 2004, pp. 251 and 252. 41 – In fact, prior to the 2000 version of the LEC, the method for challenging decisions of court clerks was the ‘action for revision’. The current version of Article 224 LEC retains a trace of the old nomenclature, referring, in the heading, to the ‘revision of measures of organisation’ (emphasis added). It may be concluded, therefore, that the use of the action for review to contest measures of organisation is an exceptional remedy which is not at all in keeping with the structure of non-devolutive actions. 42 – Orders of the Audiencia Provincial (Provincial Court), Castellón, of 26 June 2006 and the Audiencia Provincial, Cáceres, of 24 January 2006. 43 – Order of the Audiencia Provincial, Madrid, of 25 January 2005. 44 – Aguilera Morales, M., ‘Resoluciones judiciales y diligencias de ordenación’, Tribunales de justicia: Revista española de derecho procesal, No 3, 2000, p. 277, and Bonet Navarro, A., Los recursos en el proceso civil, La Ley, Madrid, 2000, p. 88. 45 – The Court of Justice is competent to interpret Community law and the national court is competent to identify and interpret the applicable national law. That delimitation, based on respect for the procedural autonomy of the national courts, is deeply rooted in the case-law of the Court (Case C‑155/73 Sacchi [1974] ECR 409; Case 111/75 Mazzalai [1976] ECR 657; Case C‑231/89 Gmurzynska-Bscher [1990] ECR I‑4003; and Joined Cases C‑428/06 to C‑434/06 UGT-Rioja and Others [2008] ECR I‑0000). 46 – Orders in Case 138/80 Broker [1980] ECR 1975, and Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4; judgment in Job Centre, paragraph 9. 47 – The Court applied that case-law to references for a preliminary ruling under Article 35 EU, stating that, ‘[l]ike Article 234 EC, Article 35 EU makes reference to the Court of Justice for a preliminary ruling subject to the condition that the national court “considers that a decision on the question is necessary in order to enable it to give judgment”, so that the case-law of the Court of Justice on the admissibility of references under Article 234 EC is, in principle, transposable to references for a preliminary ruling submitted to the Court of Justice under Article 35 EU’ (Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 29). I do not rule out the possibility that the Court may modify that criterion in the future, since I venture to stress that, in that judgment, the Court held that the traditional criteria of admissibility were applicable ‘in principle’. 48 – Case 61/65 Vaassen-Göbbels [1966] ECR 261. 49 – Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 6. 50 – Case 244/80 Foglia [1981] ECR 3045, paragraphs 18 and 20. 51 – Job Centre. 52 – Cited above. 53 – Opinion in Case C‑17/00 [2001] ECR I‑9445. 54 – Case C‑516/99 Schmid [2002] ECR I‑4573, paragraph 34, and Case C‑53/03 Syfait and Others [2005] ECR I‑4609, paragraphs 31 to 35. 55 – That diminishing importance of the inter partes requirement began in the judgment in Case 43/71 Politi [1971] ECR 1039. In Case 162/73 Birra Dreher [1974] ECR 201, the Court succinctly based on those less stringent criteria its finding that a reference for a preliminary ruling is not conditional on the requirement that the procedure which concludes with the reference for a preliminary ruling by the national court must be contested. 56 – Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others [2000] ECR I‑1577, paragraph 37, and De Coster , paragraph 14. 57 – Opinion, points 29 to 38. 58 – Cited above. 59 – Case C‑300/01 [2003] ECR I‑4899. 60 – Order in Case C‑86/00 [2001] ECR I‑5353. 61 – Politi. 62 – Case 110/76 [1977] ECR 851, and Case 14/86 [1987] ECR 2545, paragraph 7, respectively. 63 – Joined Cases C‑69/96 to C‑79/96 [1997] ECR I‑5603, paragraphs 19 to 26. 64 – Case C‑195/98 [2000] ECR I‑10497, paragraphs 24 to 30. 65 – Case C‑411/00 [2002] ECR I‑10567, paragraphs 25 to 27. 66 – Case C‑296/08 PPU [2008] ECR I‑0000. 67 – Ibid., paragraph 36. 68 – Job Centre, paragraph 11. 69 – Paragraphs 58 to 60. 70 – Díez-Picazo, I. and De la Oliva Santos, A., Derecho procesal civil …, op. cit. 71 – Job Centre, paragraph 11. 72 – Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded on 15 November 1965. Today, the Hague Conference on Private International Law states in its database that, in the EU, only Austria and Malta have not ratified the convention. 73 – Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the Service in the Member States of the European Union of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed on 26 May 1997 (OJ 1997 C 261, p. 2). 74 – Paragraph 45 of the Commission’s observations. 75 – On the importance of Regulation No 1348/2000 for the purpose of safeguarding the aims pursued by the measures referred to in Article 65 EC, see Marchal Escalona, N., El nuevo régimen de la notificación en el espacio judicial europeo, Comares, Granada, 2002, pp. 7 to 9. 76 – Emphasis added. 77 – It is a sensitive subject, although, surprisingly, some writers have described it as irrelevant. Sharma, D.H., Zustellungen im Europäischen Binnenmarkt, Dunker & Humblot, Berlin, 2003, p. 84, makes an erroneous analysis, asserting that the subject-matter of the dispute itself should not give rise to uncertainties detrimental to the effectiveness of Regulation No 1348/2000. However, the fact that nine Member States have participated in these proceedings, together with the divergent opinions advanced, shows that the proceedings have generated a significant reaction. 78 – Case C‑443/03 [2005] ECR I‑9611. 79 – Ibid., paragraph 45. 80 – Ibid., paragraph 45, emphasis added. 81 – Ibid., paragraph 46, emphasis added. 82 – Case C‑14/07 [2008] ECR I‑0000. 83 – In the Opinion in Leffler, Advocate General Stix-Hackl points out that the regulation seeks the approximation as far as possible of the legal consequences of the rights laid down in its provisions. Accordingly, ‘it is hardly logical to “flee” to national law in order to fill any regulatory gaps’ (point 63). 84 – Observations of the Czech Government, paragraph 8. 85 – Scarano, L.A., ‘Il Regolamento CE n. 1348/2000 sulle notifiche internazionali intracomunitarie’, in Ambrosi, I. and Scarano, L.A., Diritto Civile Comunitario e Cooperazione Giudiziaria Civile, Giuffrè, Milan, 2005, pp. 105 and 106. 86 – Paragraph 52. 87 – The practical guide to the 1965 convention, drafted by the Permanent Bureau of the Hague Conference on Private International Law, provides examples of extrajudicial documents consistent with Article 17 of the convention: ‘extrajudicial documents include … demands [f]or payment, notices to quit in connection with leaseholds or contracts of employment, protests with respect to bills of exchange and promissory notes, provided that they are issued by an authority of huissier. Objections to marriage, consents for adoption, and acceptances of paternity are also in this class in so far as they imply compliance with certain formalities’. Practical Handbook on the Operation of The Hague Service Convention, Permanent Bureau – Hague Conference, Wilson & Lafleur Ltée, Montreal, 2006, p. 30. There is a slight reduction in the importance of the requirement that such documents must be public in the final sentence, provided that there is a degree of involvement by an authority. 88 – Paragraphs 53 and 54. It is striking that the Court should categorically discount the usefulness of that report for the purposes of interpretation in the first case concerning Regulation No 1348/2000, Leffler. In paragraph 43 of the judgment in that case, the Court held: ‘This interpretation cannot be successfully countered by the submission that the consequences of refusal of a document should be determined by national law. The comments in the explanatory report on the convention ... cannot properly be relied upon in this connection.’ That assertion is made to prevent fragmentation of the interpretation of the regulation at national level. 89 – Sharma, D.H., Zustellungen …, op. cit., p. 84. 90 – Sharma, D.H., Zustellungen …, op, cit., p. 84, uses the termination of a private contract as an example of an extrajudicial document.