Opinion of the Advocate General — ECLI:EU:C:2022:820
Date: 2022-10-20
Language of the case: Lithuanian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
28 June 2021  
Referring court:  
Lietuvos Aukščiausiasis Teismas (Lithuania) 
Date of the decision to refer:  
23 June 2021  
Interested party and appellant on a point of law:  
Lufthansa Technik AERO Alzey GmbH 
Applicant and other party in the appeal on a point of law:  
Arik Air Limited 
Subject matter of the main proceedings 
The main proceedings concern the legal provisions governing the stay of 
enforcement proceedings when a dispute has arisen in the State of origin regarding 
the lawfulness, interpretation and application of a European Enforcement Order. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation and application of Article 23 of Regulation No 805/2004 and of 
Article 36(1) and Article 44(2) of Regulation No 1215/2012; third paragraph of 
Article 267 of the Treaty on the Functioning of the European Union (TFEU). 
Questions referred for a preliminary ruling 
1. How, taking into account the objectives of Regulation No 805/2004, inter 
alia the objective of accelerating and simplifying the enforcement of 
judgments of Member States and effective safeguarding of the right to a fair 
trial, must the  term ‘exceptional circumstances’ in Article 23(c) of 
Regulation No 805/2004 be interpreted? What is the discretion that the 
EN 
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competent authorities of the Member State of enforcement have to interpret 
the term ‘exceptional circumstances’? 
2. Are circumstances, such as those in the present case, related to judicial 
proceedings in the State of origin which decide a question regarding the 
setting aside of the judgment on the basis of which a European Enforcement 
Order was issued to be regarded as relevant when deciding on the 
application of Article 23(c) of Regulation No 805/2004? According to what 
criteria must the appeal proceedings in the Member State of origin be 
assessed and how comprehensive must the assessment of the proceedings 
taking place in the Member State of origin that is carried out by the 
competent authorities of the Member State of enforcement be? 
3. What is the subject matter of the assessment when deciding on the 
application of the term ‘exceptional circumstances’ in Article 23 of 
Regulation No 805/2004: must the impact of the respective circumstances of 
the dispute when the judgment of the State of origin is challenged in the 
State of origin be assessed, must the possible potential benefit or harm of the 
respective measure specified in Article 23 of the regulation be analysed, or 
must the debtor’s economic abilities to implement the judgment, or other 
circumstances, be analysed? 
4. Under Article 23 of Regulation No 805/2004, is the simultaneous 
application of several measures specified in that article possible? If the 
answer to this question is in the affirmative, what criteria must the 
competent authorities of the State of enforcement rely on when deciding on 
the merits and proportionality of the application of several of those 
measures? 
5. Is the legal regime laid down in Article 36(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 to be applied to a judgment of the 
State of origin regarding the suspension (or cancellation) of enforceability, 
or is a legal regime similar to that specified in Article 44(2) of that 
regulation applicable? 
Provisions of EU law cited 
Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2016 
C 202, p. 389).  
Article 1, Article 5, Article 10(1), Article 20(1) and Article 23 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; ‘Regulation No 805/2004’). 
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Article 36(1) and Article 44(2) 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; ‘Regulation No 1215/2012’). 
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; ‘Regulation No 44/2001’). 
Provisions of national law cited 
Paragraph 3 of Article 13, entitled ‘European enforcement order’, of the Lietuvos 
Respublikos civilinį procesą reglamentuojančių Europos Sąjungos ir 
tarptautinėsteisės aktų įgyvendinimo įstatymas (Law of the Republic of Lithuania 
on the implementation of EU and international legal measures governing civil 
proceedings), which provides: 
3. Judgments, settlement agreements approved by a court and authentic 
instruments in respect of which a European Enforcement Order has been issued 
are enforceable instruments. They shall be enforced in accordance with the rules 
set out in Part VI of the Code of Civil Procedure of the Republic of Lithuania in so 
far as [Regulation No 805/2004] and this Law do not provide otherwise. 
Paragraph 3 of Article 18, entitled ‘Stay or limitation of enforcement of 
judgments’, of that law, which provides: 
3. The decisions referred to in Article 23(1)(c) of [Regulation No 805/2004] 
shall be taken by a competent bailiff of the place of enforcement of the judgment 
or authentic instrument. 
Paragraph 1 of Article 625 of the Lietuvos Respublikos civilinio proceso kodeksas 
(Code of Civil Procedure of the Republic of Lithuania; ‘the CCP’), entitled 
‘Deferral of enforcement measures, stay of enforcement proceedings, return of an 
enforcement instrument’, which provides: 
1. A bailiff executing an enforcement instrument may by his order, in 
accordance with the procedure established by this Code, either on his own 
initiative or at the request of the participants in the enforcement proceedings, 
defer enforcement measures, stay the enforcement proceedings or return the 
enforcement instrument to the party seeking enforcement. 
Article 626 of the CCP, entitled ‘Compulsory stay of enforcement proceedings 
and compulsory suspension of enforcement measures’, which provides: 
1. A bailiff must stay the enforcement proceedings in the following cases: 
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(1) upon the death of the debtor or the party seeking enforcement as well as after 
the reorganisation or winding-up of the legal person which is the debtor or the 
party seeking enforcement if, having regard to the legal relations, the taking over 
of rights and obligations is possible; 
(2) if the debtor has lost legal capacity; 
(3) if insolvency or restructuring proceedings have been instituted against the 
debtor. … 
(4) if a restriction of activity (moratorium) has been announced in respect of the 
debtor by a bank or the Centrinė kredito unija (Lithuanian Central Credit Union); 
(5) if the bailiff has received a settlement agreement concluded between the party 
seeking enforcement and the debtor; 
(6) where the period for filing an appeal has been renewed if the basis for issuing 
the enforcement order was the decision appealed against (except for immediately 
enforceable decisions). 
… 
Article 627 of the CCP, entitled ‘Right to stay enforcement proceedings or to 
defer enforcement measures’, which provides: 
A bailiff may stay enforcement proceedings in whole or in part or defer 
enforcement measures in the following cases: 
(1) when the party seeking enforcement so requests in writing; 
(2) when the debtor has become seriously ill provided the illness is not chronic, 
upon receipt of a document from a medical institution; 
(3) when the debtor is being treated in a hospital; 
(4) when a search for the debtor is announced (Article 620 of this Code); 
(5) in the event of eviction proceedings, if the debtor or a member of his family 
becomes ill provided the illness is not chronic, upon receipt of a document from a 
medical institution; 
(6) when the court has demanded and obtained the enforcement proceedings; 
(7) when, pursuant to the provisions of the Lietuvos Respublikos finansinio 
tvarumo įstatymas (Law of the Republic of Lithuania on Financial Sustainability), 
the debtor or the party seeking enforcement is undergoing actions for the 
reorganisation of a financial sector entity. 
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Succinct presentation of the facts and the procedure in the main proceedings 
1 In enforcement proceedings, a bailiff operating in Lithuania is executing an order 
of the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany) of 14 June 2019, on 
the basis of which an enforcement order of 24 October 2019 and a European 
Enforcement Order certificate of 2 December 2019 regarding the recovery of a 
debt of EUR 2 292 993.32 from the debtor, Arik Air Limited (the applicant at first 
instance), for the benefit of the party seeking enforcement, Lufthansa Technik 
AERO Alzey GmbH (the interested party and appellant on a point of law), were 
issued. 
2 The debtor, Arik Air Limited, applied to the Landgericht Frankfurt am Main 
(Regional Court, Frankfurt am Main, Germany) for withdrawal of the European 
Enforcement Order certificate of 2 December 2019 and termination of 
enforcement. It claimed that the certificate had been issued unlawfully because the 
procedural documents of the Local Court, Hünfeld, had not been duly served on it, 
causing it to miss the time limit for lodging objections. In an order of 9 April 
2020, that court stated that execution of the enforcement order of 24 October 2019 
would be stayed if Arik Air Limited paid a security of EUR 2 000 000. Otherwise, 
the request for the stay of enforcement should not be upheld because the debtor 
had not proved that the enforcement order was issued unlawfully. 
3 The debtor, Arik Air Limited, requested the bailiff to stay the enforcement 
proceedings in the Republic of Lithuania until the debtor’s claims for withdrawal 
of the European Enforcement Order certificate and termination of enforcement 
had been examined in a final procedural decision of the court in Germany. At 
present, the civil case is before the German courts on appeal. 
4 The bailiff refused to stay the enforcement proceedings, on the basis that 
Articles 626 and 627 of the CCP do not provide for the procedural possibility of 
staying the enforcement of a final judgment on the ground that claims for 
withdrawal have been made before a court of the State of origin. 
5 By order of 11 June 2020, the Kauno apylinkės teismas (District Court, Kaunas, 
Lithuania), before which an action regarding this refusal was brought, did not 
uphold the action. The court stated that the debtor’s request had already been 
examined by a court of the State of origin in the order of 9 April 2020 and, 
therefore, it had no grounds to examine it. 
6 By order of 25 September 2020, the Kauno apygardos teismas (Regional Court, 
Kaunas), exercising appellate jurisdiction, set aside the order of the court of first 
instance, upheld the action brought by Arik Air Limited, and ordered the stay of 
the enforcement proceedings pending a full examination of the applicant’s claims 
by a final judgment of the German court that had jurisdiction. The appellate court 
stated that, in view of the disproportionately great harm which might be caused in 
the enforcement proceedings, an application regarding a European Enforcement 
Order certificate to a court of the State where it was issued was a sufficient ground 
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for staying the enforcement proceedings. Taking the view that there was nothing 
in the case file to confirm that the security specified in the order of the Regional 
Court, Frankfurt am Main, of 9 April 2020 had been paid, the appellate court, 
contrary to the court of first instance, concluded that there was no ground to 
believe that the question of the suspension of enforcement measures in the 
enforcement proceedings had been examined by the court of the State origin. 
7 On 16 December 2020, the interested party, Lufthansa Technik AERO Alzey 
GmbH, brought an appeal on a point of law before the Lietuvos Aukščiausiasis 
Teismas (Supreme Court of Lithuania). 
Principal arguments of the parties in the main proceedings 
8 Arik Air Limited submits that the fact that the debtor has challenged the judgment 
certified as a European Enforcement Order or has applied for rectification or 
withdrawal of a European Enforcement Order certificate is sufficient for a 
competent bailiff or court of the State of enforcement to be able to apply the 
measures provided for in Article 23 of Regulation No 805/2004. Furthermore, if a 
debtor challenges a judgment in the State of origin on the ground that he was not 
duly informed of the judicial proceedings, the view is to be taken that there are 
exceptional circumstances within the meaning of Article 23(c) of Regulation No 
805/2004. 
9 The interested party, Lufthansa Technik AERO Alzey GmbH, contends that the 
actions brought by the debtor before the German courts are irrelevant to the 
enforceability of the judgment of the Local Court, Hünfeld, confirmed by a 
European Enforcement Order and that the debtor is only protracting the judicial 
proceedings. Furthermore, the interpretation of the concept of exceptional 
circumstances, which are referred to in Article 23(c) of Regulation No 805/2004, 
is legally irrelevant because their presence or absence is a matter of fact and not of 
interpretation of law. 
Succinct presentation of the reasons for the request for a preliminary ruling 
10 The referring court has first of all drawn attention to recitals 8, 9 and 20 of 
Regulation No 805/2004 and to the purpose of the regulation stated in Article 1, 
which is the creation of 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. 
11 Compared to Regulation No 44/2001, which pursued that objective by 
establishing an exequatur procedure, Regulation No 805/2004 lays down an 
alternative method of enforcing a judgment given in another Member State, under 
which judgments in cases concerning uncontested claims may be certified as a 
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European Enforcement Order. Therefore, it distributes jurisdiction between the 
courts of the State of origin and the courts of the State of enforcement. It is the 
court of the State of origin that must satisfy itself that certain conditions laid down 
in the regulation are met, including minimum procedural requirements intended to 
safeguard, inter alia, the rights guaranteed by Article 47 of the Charter, while 
competence to apply the grounds set out in Article 23 of Regulation No 805/2004 
lies with the authorities of the State of enforcement. 
12 Also, according to case-law of the Court of Justice, the procedure for the 
certification of a court decision as a European Enforcement Order appears, 
functionally, not as a procedure which is distinct from the earlier judicial 
procedure, but as the final phase of that procedure, necessary in order to ensure 
that it is fully effective, by allowing the creditor to proceed with the recovery of 
his debt (judgment of the Court of 16 June 2016, Pebros Servizi, C-511/14, 
paragraph 29). Therefore, a proper procedure for execution of the European 
Enforcement Order is directly associated with ensuring an effective right to 
judicial protection. 
13 The referring court wishes to ascertain the relationship between the judicial 
proceedings that take place in the Member State of origin where the European 
Enforcement Order is issued and concern the judgment on the basis of which the 
European Enforcement Order is issued and the enforcement proceedings in the 
Member State in which enforcement measures under the European Enforcement 
Order are instituted. The referring court observes that there is no case-law of the 
Court of Justice in that regard. 
14 The referring court states that Article 23 of Regulation No 805/2004 has not been 
interpreted in the case-law of the Court of Justice. The application of the measures 
laid down in Article 23 of Regulation No 805/2004 in the event of an appeal 
against a judgment in the State of origin is relevant to the present case. 
15 The verb ‘may’ used in Article 23 of Regulation No 805/2004 indicates that that 
provision concerns a certain discretion of the competent court or authority (bailiff) 
and not an obligation to apply or not to apply the measure in question. Therefore, 
it is important to determine the extent of that discretion and to specify the criteria 
on the basis of which the court or bailiff must decide on the application of those 
measures, having regard to the objectives of Regulation No 805/2004 and to 
safeguarding an effective right to a fair trial. 
16 It is apparent from the case file that there are sets of proceedings before the courts 
of the State of origin concerning an appeal against a judgment certified as a 
European Enforcement Order, and that the parties are in disagreement as to the 
substance, expediency, and prospects as to the outcome, of the judicial 
proceedings taking place in the State of origin. The referring court observes that 
the need to analyse the legal rules of another Member State on appealing against 
judgments, taking into account differences between the legal systems and 
linguistic differences, may be very resource-consuming, and this may not always 
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be compatible with the objective of prompt enforcement of a judgment of another 
Member State. Therefore, it is important to ascertain how these values should be 
reconciled and the extent of the assessment that the competent authorities of the 
Member State of enforcement should carry out. 
17 It is clear from the wording of Regulation No 805/2004 that limitation of the 
enforcement proceedings to protective measures and making enforcement 
conditional require a judgment to be challenged and/or rectification or withdrawal 
of a European Enforcement Order certificate to be applied for, while stay of the 
enforcement proceedings additionally requires ‘exceptional circumstances’. 
18 On the one hand, the use of the words ‘challenged’ and ‘including’ in Article 23 
of Regulation No 805/2004 implies that that rule covers all means of appeal in the 
State of origin; therefore, on the basis of the documents submitted by the parties to 
the present case, it appears that this condition is met. On the other hand, in the 
light of the wording used in Article 23 of Regulation No 805/2004, it seems that 
the mere fact that a judgment certified by a European Enforcement Order is 
simply being appealed against in the State of origin is not sufficient to stay 
enforcement proceedings, while the term ‘exceptional circumstances’ presupposes 
that there must be certain circumstances not typical of normal situations. 
Consequently, the meaning of the term ‘exceptional circumstances’ in the event of 
an appeal against a judgment of the State of origin is not entirely clear and in the 
present case it is important for the referring court to ensure that this term used in 
Article 23(c) of the regulation is interpreted uniformly in the Member States. 
19 First and foremost, it would be beneficial to the referring court to have guidance 
on the assessment of ‘exceptional circumstances’, including the subject matter of 
the assessment, that is to say, whether its subject matter is constituted by the 
possible prospects as to the outcome of the proceedings taking place in the State 
of origin, the potential benefits and harm of the measure whose application is 
sought, and other relevant circumstances. Second, in the light of the objectives 
pursued by Regulation No 805/2004 and the need to reconcile the rights and 
legitimate interests of the party seeking enforcement and the debtor, it is also 
relevant to appraise what the scope must be of the verification of the appeal that is 
carried out by the court of the State of enforcement in order to determine the 
existence of ‘exceptional circumstances’, and to ascertain how the burden of proof 
must be allocated. 
20 In deciding on the application of the measures provided for in Article 23 of 
Regulation No 805/2004, the referring court also raises the question whether only 
one of those measures or several of them together may be applied in a particular 
case. Under the law of the Republic of Lithuania, the attachment of property and 
stay of enforcement proceedings at the same time is possible. When analysing the 
wording of Article 23 of Regulation No 805/2004 and comparing it with the 
wording of Article 44 of Regulation No 1215/2012, it should be noted that in 
Regulation No 805/2004 all three measures are separated by the conjunction ‘or’, 
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although the conjunction ‘or’ separates only points (b) and (c) of Article 44(1) of 
Regulation No 1215/2012. 
21 It appears that the legislature sought to lay down in Regulation No 805/2004 that 
only one measure at a time can be applied. Accordingly, if a bailiff has applied the 
attachment of property (or a ‘protective measure’ within the meaning of the 
regulation), another measure cannot be applied simultaneously. It is apparent from 
the wording ‘upon application by the debtor’ that measures cannot be taken on the 
initiative of a court or a bailiff. Having regard to the differences between EU and 
national law, the referring court needs clarification of the relationship between the 
various measures provided for in Article 23 of the regulation. 
22 Finally, it must be noted that, unlike Regulation No 1215/2012, and specifically 
Article 44(2) thereof, Regulation No 805/2004 does not explicitly regulate the 
issue of suspension of the enforcement proceedings where the enforceability of a 
judgment is suspended in the Member State of origin. Regulation No 805/2004 
does not establish whether, when the enforceability of a judgment has been 
suspended in the State of origin, enforcement of that judgment in another Member 
State should be automatically suspended, or whether in that regard a decision by 
the competent authority of the State of enforcement is required. In other words, it 
is not clear whether the legal regime laid down in Article 36(1) of Regulation No 
1215/2012 is applicable to a judgment on the suspension of enforceability. 
23 A judgment on the suspension of enforceability affects the rights and obligations 
of the parties. If the general rule laid down in Article 36(1) of Regulation No 
1215/2012 were applied, such judgments could in principle circulate without any 
special procedure. However, the decision of the legislature to separate such 
judgments in a separate rule indicates that the suspension in the State of 
enforcement must be carried out by active steps of the competent authorities of 
that State. Therefore, the Court of Justice is asked whether that legal logic is 
relevant to the application of Article 23 of Regulation No 805/2004 or whether a 
mechanism similar to that laid down in Article 44(2) of Regulation No 1215/2012 
should be applied.