Judgment;Summary — ECLI:EU:C:2020:351
Date: 2020-05-07
Language of the case: Croatian
Court formation: Sixth Chamber
Subject matter: Trans-European networks;Transport;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Croatia

Summary of the subject matter of the dispute and the relevant 
findings of fact as determined by the referring court in the case registered 
under reference Povrv-1614/18 
The parties to the main proceedings are PARKING d.o.o., Croatia, […], the party 
seeking enforcement, and SAWAL d.o.o., Slovenia […], the party against whom 
enforcement is sought. On 25 April 2016, enforcement proceedings were initiated 
following an application for enforcement based on an authentic document. On 
23 May 2016, the notary […] Croatia, issued a writ of execution based on the 
authentic document by which he ordered the party against whom enforcement is 
sought to settle, within 8 days, the debt claimed in the application for enforcement 
of HRK 100, plus statutory late payment interest, as well as the costs of the 
proceedings of HRK 1 741.25. The debt of HRK 100 is based on a certified 
statement of account […], the authentic document, and relates to a request for 
payment of a fee under the Zakon o Hrvatskoj radioteleviziji (Croatian Law on 
radio and television). The request was sent to the defendant at the same time as the 
writ of execution, on 9 February 2017. The party against whom enforcement is 
sought lodged an opposition to that writ, in a timely fashion, challenging the basis 
and amount of the debt and contends, in particular, that a Croatian notary is not 
and cannot be a competent judicial authority. 
In accordance with the judgments delivered by the Court in Cases C-484/15 and 
C-551/15, notaries in Croatia acting in enforcement proceedings based on an 
‘authentic document’ cannot be regarded as a court or tribunal within the meaning 
of the Regulation on the European Enforcement Order, nor for the purposes of 
applying the Regulation on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters. Furthermore, in those judgments, the 
REQUEST FOR A PRELIMINARY RULING OF 20. 3. 2019 — CASE C-267/19 — 1 
 
4  
Court found that compliance with the principle of mutual trust between EU 
Member States in the field of cooperation in civil and commercial matters requires 
that decisions taken by the authorities of a Member State, the enforcement of 
which is sought in another Member State, have been delivered in court 
proceedings offering guarantees of independence and impartiality and in 
compliance with the principle of audi alteram partem. Therefore, the procedure 
prior to the issue of a writ of execution is not a procedure giving effect to the audi 
alteram partem principle and that decision is not delivered by a judicial authority, 
but by a notary [Or.3] who, as indicated above, cannot be regarded as a court or 
tribunal. Those considerations support the conclusion that the abovementioned 
writ is issued by an authority with an absolute lack of jurisdiction and that, in 
consequence, the rules on absolute lack of jurisdiction apply. Accordingly, the 
referring court cannot accept measures taken by an authority absolutely lacking in 
jurisdiction, which is why it is not possible to continue the opposition proceedings 
brought against the writ of execution. Therefore, what is invalid ab initio may not 
become valid or be validated in the course of the procedure, since this would be 
contrary to the principle of equality of arms.  
II. The content of the national provisions applicable in the case and the 
relevant national case-law  
The contested provision is Article 1 of the Ovršni zakon (Croatian Law on 
enforcement; ‘the OZ’) (published in the Narodne novine No 112/12, 25/13, 
93/14, 55/16 and 73/17), the national law giving notaries the power to enforce the 
recovery of debts based on an ‘authentic document’ by issuing a writ of execution, 
as an enforcement order, without the express agreement of the party against whom 
enforcement is sought. Therefore, since the question at issue is that of the 
jurisdiction of notaries in the present civil case, the court did not conduct an 
examination of the merits.  
The court of first instance took the view that the grounds and interpretation of the 
Court’s judgments of 9 March 2017, Zulfikarpašić (C-484/15, EU:C:2017:199) 
and Pula Parking (C-551/15, EU:C:2017:193), are also of importance under 
national law and applied the Court’s case-law and interpretation in that regard in 
Case Povrv-1614/18.  
Case-law:  
In Case Povrv-57/18 (Annex 2), the Općinski sud u Novom Zagrebu (Municipal 
Court, New Zagreb) dismissed an application for enforcement and annulled a writ 
of execution issued by a notary with reference to the judgment of the Court in 
Case C-551/15, giving the following reasons: ‘[…] the procedure prior to the issue 
of a writ of execution is not a procedure giving effect to the audi alteram partem 
principle and that decision is not delivered by a judicial authority, but by a notary 
who, as indicated above, cannot be regarded as a court or tribunal. Those 
considerations support the conclusion that the abovementioned writ is issued by 
PARKING 
 
5 
an authority with an absolute lack of jurisdiction and that, in consequence, the 
rules on absolute lack of jurisdiction apply. Accordingly, the referring court 
cannot accept measures taken by an authority absolutely lacking in jurisdiction, 
which is why it is not possible to continue the opposition proceedings brought 
against the writ of execution. Therefore, what is invalid ab initio may not become 
valid or be validated in the course of the procedure, since this would be contrary 
to the principle of equality of arms’.  
By contrast, by order No Gž Ovr-645/2018 (Annex 3), the Županijski sud u Puli 
(County Court, Pula, Croatia) annulled the decision in Povrv-57/18 on the 
following grounds: ‘[…] the position of the court of first instance on notaries’ lack 
of jurisdiction in procedures for the adoption of a writ of execution based on an 
authentic document is incorrect, since their jurisdiction is laid down in the 
provisions of Title 26 of the OZ (Narodne novine No 112/12, 25/13, 93/14, 55/16 
and 73/17). The notary thus acted lawfully where, in accordance with the 
provisions of Article 282 of the OZ, following the opposition lodged by the party 
against whom enforcement is sought challenging the writ of execution issued by 
that notary on the basis of an authentic document, he forwarded the papers in the 
case to the court of first instance for it to rule on the opposition proceedings as the 
court with jurisdiction. At that stage of the procedure, in a case in which the party 
against whom enforcement is sought is domiciled in the Republic of Croatia, in 
the territory falling within the jurisdiction of the court of first instance, that court 
should have, under Article 282(3) of the OZ, ruled on the opposition lodged by 
that party pursuant to Articles 57 and 58 of the OZ and delivered a decision in 
accordance with those provisions. Given that, by misapplying the provisions of 
Article 16 ZPP [Zakon o parničnom potupku (Code of Civil Procedure)], it 
rejected the application for enforcement and annulled in its entirety the writ of 
execution based on an authentic document on the ground of the notary’s absolute 
lack of jurisdiction, it infringed essential procedural requirements, as set out in 
Article 354(1), which is the result of that misapplication of Article 16 of the ZPP, 
and Article 21(1) of the OZ, which was pleaded on appeal […]’.  
Therefore, the Županijski sud u Puli (County Court, Pula) considers that the 
effects of the part of the notary’s writ ordering the party against whom 
enforcement is sought to make the payment at issue may be maintained. [Or.4] 
In addition, in Cases Povrv-1434/18, Povrv-3326/17 and Povrv-3380/18 (Annex 
4), the Trgovački sud u Zagrebu (Commercial Court, Zagreb) maintained the 
effects of orders to pay made in writs of execution issued by notaries against 
foreign debtors who are legal persons.  
By contrast, in Case Povrv-113/18 (Annex 5), the Trgovački sud u Zagrebu 
(Commercial Court, Zagreb) dismissed an application for enforcement submitted 
to a notary and annulled a writ of execution issued by a notary based on an 
authentic document with reference to the Court’s judgment in Case C-551/15, 
giving the following reasons: ‘[…] the procedure prior to the issue of a writ of 
execution is not a procedure giving effect to the audi alteram partem principle and 
REQUEST FOR A PRELIMINARY RULING OF 20. 3. 2019 — CASE C-267/19 — 1 
 
6  
that decision is not delivered by a judicial authority, but by a notary who, as 
indicated above, cannot be regarded as a court or tribunal. Those considerations 
support the conclusion that the abovementioned writ is issued by an authority with 
an absolute lack of jurisdiction and that, in consequence, the rules on absolute lack 
of jurisdiction apply. Accordingly, the referring court cannot accept measures 
taken by an authority absolutely lacking in jurisdiction, which is why it is not 
possible to continue the opposition proceedings brought against the writ of 
execution. Therefore, what is invalid ab initio may not become valid or be 
validated in the course of the procedure, since this would be contrary to the 
principle of equality of arms’.  
These decisions by national courts and tribunals reflect the differing legal views 
on whether notaries have jurisdiction to issue enforcement orders. 
III. Statement of the reasons which prompted the referring court or 
tribunal to inquire about the interpretation or validity of certain provisions 
of EU law, and the relationship between those provisions and the national 
legislation applicable to the main proceedings 
The request for a preliminary ruling seeks to ensure the uniform application of EU 
law in all Member States and observance of the principle of equal treatment and 
equality of citizens in the application of EU law, and to bring uniformity to the 
case-law of the national court making the reference in the application of the acquis 
of the European Union.  
Article 6(1) of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms provides that everyone is entitled to a fair and public 
hearing within a reasonable time by an independent and impartial tribunal 
established by law. Article 14 of that convention prohibits discrimination and 
provides that the enjoyment of the rights and freedoms set forth therein must be 
secured without distinction on any ground such as sex, race, colour, language, 
religion, political or other opinion, national or social origin, association with a 
national minority, property, birth or other status. Article 18 TFEU provides that, 
within the scope of application of the Treaties and without prejudice to any special 
provisions contained therein, any discrimination on grounds of nationality is 
prohibited. The referring court is of the view that, in the present case, Croatian 
nationals and legal persons are discriminated against in comparison with nationals 
and legal persons from other EU Member States, as is apparent from the Court’s 
judgments of 9 March 2017, Zulfikarpašić (C-484/15, EU:C:2017:199) and Pula 
Parking (C-551/15, EU:C:2017:193), cited above. In accordance with the 
abovementioned judgments, enforcement orders will not be recognised as such in 
other EU Member States for the purpose of the Regulation on the European 
Enforcement Order and the Regulation on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters. Therefore, national 
law gives notaries the power to issue enforcement orders which are not recognised 
as such or as a judicial decision in other EU Member States. It is clear from the 
PARKING 
 
7 
grounds of those judgments that the procedure before a notary does not offer any 
guarantee of independence and impartiality and does not give effect to the audi 
alteram partem principle. That situation brings about unequal treatment of natural 
and legal persons from Croatia in comparison with natural and legal persons from 
other EU Member States and unequal treatment of foreign natural and legal 
persons to such an extent as to constitute discrimination. The fact that the 
procedure does not give effect to the audi alteram partem principle results in 
unequal treatment between the parties and thus infringes the fundamental right to 
a fair trial enshrined in the ECHR. [Or.5] 
Company law requires harmonisation of the relevant European rules within the 
European Union in order to increase legal certainty, so as to promote economic 
activity and investment, in accordance with the Accession Treaty and the Treaty 
on the Functioning of the European Union. The interpretation, which is at variance 
with the principle of the equality of companies, places national companies at a 
disadvantage in comparison with companies from other EU Member States, which 
is contrary to the founding principles of the European Union. 
The following questions are referred to the Court for a preliminary ruling: 
1. Is a provision of national law, namely Article 1 of the Ovršni zakon (published 
in the Narodne novine No 112/12, 25/13, 93/14, 55/16 and 73/17), which gives 
notaries the power to enforce the recovery of debts based on an authentic 
document by issuing a writ of execution, as an enforcement order, without the 
express agreement of the debtor who is a legal person established in the Republic 
of Croatia, compatible with Article 6(1) of the ECHR and Article 18 TFEU, in the 
light of the Court’s judgments in Cases C-484/15 and C-551/15?  
2. Can the interpretation given in the Court’s judgments of 9 March 2017, 
Zulfikarpašić (C-484/15, EU:C:2017:199) and Pula Parking (C-551/15, 
EU:C:2017:193), be applied to Case Povrv-1614/2018, described above, brought 
before the referring court, and, specifically, is Regulation No 1215/2012 to be 
interpreted as meaning that, in Croatia, notaries, acting within the framework of 
the powers conferred on them by national law in enforcement proceedings based 
on an ‘authentic document’, in which the parties against whom enforcement is 
sought are legal persons established in other EU Member States, do not fall within 
the concept of ‘court’ within the meaning of that regulation? 
[…] 
[…] [postal and email address] 
Annexes: 
1) Documents relating to the main proceedings, Povrv-1614/18, numbered 1 to 
20.  
REQUEST FOR A PRELIMINARY RULING OF 20. 3. 2019 — CASE C-267/19 — 1 
 
8  
2) Case-law of the Općinski sud u Novom Zagrebu (Municipal Court, New 
Zagreb), Case Povrv-57/18, numbered 21 and 22.  
3) Case-law of the Županijski sud u Puli (County Court, Pula), Case Gž Ovr-
645/18, numbered 23 and 24.  
4) Case-law of the Trgovački sud u Zagrebu (Commercial Court, Zagreb), 
Cases Povrv-1434/18, Povrv-3326/17 and Povrv-3380/18, numbered 24 to 
29.  
5) Case-law of the Trgovački sud u Zagrebu (Commercial Court, Zagreb), Case 
Povrv-113/18, numbered 30 and 31.