Opinion of the Advocate General — ECLI:EU:C:2023:816
Date: 2023-10-26
Language of the case: Croatian
Subject matter: Provisions governing the Institutions;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Croatia

Summary of the subject matter of the dispute in the main proceedings and the 
relevant facts, content of the national provisions that may be applicable and 
statement of the reasons that led the referring court to enquire as to the 
interpretation of provisions of EU law: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2021 – CASE C-554/21 
 
2  
In the present case, the Trgovački sud u Pazinu (Commercial Court, Pazin, 
Croatia) rejected, by order of 27 May 2021 […], the request made by the Financial 
Agency for reimbursement of the costs related to the activities carried out in the 
context of the insolvency proceedings. The Financial Agency appealed against 
that order, and therefore the case came before the competent court, the Visoki 
trgovački sud (Commercial Court of Appeal). 
During the deliberations of the three-judge chamber that took place on 25 June 
2021, the decision was taken to dismiss the appeal and to uphold the judgment 
delivered at first instance; in adopting that decision, the chamber also took into 
account the earlier decision of the same court […] in which the same legal view 
had been taken. The three-judge chamber was unanimous in the decision in 
question. In accordance with the decision taken, a written copy of the decision 
was drawn up, which was signed and transmitted to the Judicial Decisions 
Registration Service pursuant to Article [177](3) of the Sudski poslovnik (Rules 
of Procedure of the Courts) (Narodne novine, br. 37/14, 49/14, 8/15, 35/15, 
123/15, 45/16, 29/17, 33/17, 34/17, 57/17, 101/18, 119/18, 81/19, 128/19, 39/20 
and 47/20; ‘the Rules of Procedure of the Courts’). That article provides, in 
particular: ‘A case before a court of second instance shall be deemed to be closed 
on the date on which the decision is sent from the court office, after the case has 
been returned by the Registration Service. The Registration Service shall be 
required to return the file to the court office as promptly as possible after receipt 
thereof. The decision shall then be notified within a further period of eight days’. 
It follows from those provisions of Article [177](3) of the Rules of Procedure of 
the Courts that the registrations judge does not have the option of not ‘registering’ 
a case; that is not, however, the case because, if it has not been registered, a 
decision cannot be notified to the parties. The registrations judge therefore 
examines the decision taken at second instance and may approve it or refer it back 
(together with written or oral comments) in order for a new decision to be taken. 
The parties to the judicial proceedings are not informed either that the decision 
has been taken or that the registrations judge has referred it back to the chamber 
for a new decision to be adopted, since the name of the registrations judge is not 
mentioned on the copy of the decision notified to the parties. 
In the present case, on 28 June 2021 the Judicial Decisions Registration Service 
returned the decision in Case Pž-3133/21, without registering it, stating (the letter 
in question is attached in an annex): 
‘… there are other decisions of the present court, namely those taken in Cases P-
2847/21 and 2809/21, in which a different legal position was taken on the matter 
[…]. […] 
[…] the decision in the present case is identical to the decision in Case Pž-
2133/2019. 
In those circumstances, the case is referred back to the chamber. 
FINANCIJSKA AGENCIJA  
 
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If the chamber maintains its decision, the case will have to be examined at a 
section meeting.’ 
In accordance with the binding rules, the present chamber, during its deliberations 
on 3 August 2021, reconsidered the appeal and the abovementioned written 
opinion of the registrations judge; it decided to make a request for a preliminary 
ruling in which it would make specific reference to the abovementioned fact that 
in 2019 it delivered, in relation to that legal issue (which is raised in a good many 
similar cases), a decision reflecting a certain legal view which was registered and 
sent to the parties and that, thereafter, decisions reflecting a different legal view 
have also been registered and sent to the parties without a section meeting having 
been held; however, it is now a requirement that the most recent judicial decision 
reflects the correct legal position and that that decision be communicated; if the 
earlier position is maintained, it will not be possible to communicate that decision 
and a section meeting will have to be organised. 
Article 40(1) of the Zakon o sudovima (Law on judicial bodies, Narodne novine, 
br. 28/13, 33/15, 82/15, 82/16, 67/18 and 126/19) provides: 
‘(1) A section meeting or a meeting of judges shall be convened where it is 
found that there are differences in interpretation between sections, chambers or 
judges regarding questions relating to the application of the law or where a 
chamber, a judge or a section departs from the legal position previously adopted.’ 
In accordance with Article 40 of the Law on judicial bodies, a section meeting 
should therefore have been convened when the divergence between the legal 
positions first came to light; however, decisions reflecting a different legal view 
have been registered without the procedure laid down being observed. 
In that way, the Registration Service has, to some extent, replaced judicial 
interpretation without all the judges having set out their view on this question of 
law. 
During this chamber’s deliberations that took place on 3 August 2021, the 
chamber therefore examined all the circumstances of the present case that are 
connected with the application of Article [177](3) of the Rules of Procedure of the 
Courts and Article 40(2) of the Law on judicial bodies, and also of Article 19 of 
the Treaty on European Union (TEU), which provides as follows: 
‘The Court of Justice of the European Union shall include the Court of Justice, the 
General Court and specialised courts. It shall ensure that in the interpretation and 
application of the Treaties the law is observed. 
Member States shall provide remedies sufficient to ensure effective legal 
protection in the fields covered by Union law.’ 
and of Article 47 of the Charter of Fundamental Rights of the European Union 
(‘the Charter’), which provides as follows: 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2021 – CASE C-554/21 
 
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‘Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article. 
Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. …’ 
and concluded that it is possible that a provision which involves, in the adoption 
of a judicial decision, a registrations judge who is not known to the parties, who is 
not provided for in the Rules of Procedure followed in the proceedings leading to 
the adoption of the decision on the appeal and who, without being a higher court, 
is capable, in the case under examination, of causing a judge to alter the decision 
which he has taken, is of such a kind as to have an appreciable impact on respect 
for the rule of law and the independence of the judiciary, in particular because it 
applies in all cases before all the courts of second instance in Croatia, irrespective 
of whether EU law is or is not applied in the particular case. 
The fact that the registrations judge, who is not known to the parties, has an 
appreciable impact on decision-making is specifically illustrated by the present 
case, in which one legal view had been taken previously and decisions reflecting 
another legal view were registered subsequently without a section meeting having 
been held. In the present case, the decision was given in accordance with the first 
legal view, but the Registration Service now considers that that view is incorrect 
and that a decision must be given in line with the second legal view, failing which 
a section meeting will have to be convened. It is therefore the Judicial Decisions 
Registration Service, and not a higher court, which had an appreciable impact on 
case-law when it allowed different decisions to be notified without a section 
meeting, including all the judges, having been convened. 
Being of the view that that question is important for the independence of the 
judiciary, and after examining the case-law of the Court of Justice of the European 
Union (Case C-896/19), the referring court decided to submit a question for a 
preliminary ruling so that a definitive decision may be delivered in the present 
case, given that it has also made an order staying the proceedings pursuant to 
Article 213(1)(2) of the Zakon o parničnom postupku (Code of Civil Procedure, 
Narodne novine, br. 53/91, 91/92, 112/99, 88/01, 117/03, 88/05, 2/07, 84/08, 
96/08, 123/08, 57/11, 148/11, 25/13, 89/14 and 70/19, ‘the ZPP’) until the Court 
has given its ruling. 
It should also be pointed out that a similar question has already been submitted in 
Case C-361/21 but that the facts of the present case are slightly different, and 
therefore this chamber has decided to submit a similar question for a preliminary 
ruling; given the short period of time [between the two requests], the Court may 
decide to make a single ruling. The existence of such a form of registration of 
judicial decisions has, thus far, been justified by the need to standardise case-law, 
a principle of the highest importance, but the procedure adopted by the 
registration service after a judicial decision has been delivered is contrary, in this 
FINANCIJSKA AGENCIJA  
 
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chamber’s view, to the fundamental legal principle of the independence of the 
judiciary. As the present case demonstrates, the Judicial Decisions Registration 
Services decides which decisions will be notified by a court; it decides when a 
decision departing from existing case-law should be made public and when it 
should not. In that regard, the most significant factor is perhaps the fact that the 
parties have no knowledge of that stage of the proceedings and that the name of 
the registrations judge is not stated, for the purposes of transparency, in the 
decision received by the parties. 
Consequently, a decision by the Court of Justice on that point is necessary in order 
that the Visoki trgovački sud (Commercial Court of Appeal) may adjudicate in the 
present case and the reference for a preliminary ruling is in the general interest 
consisting in the uniform application of EU law, the rule of law, the independence 
of the judiciary of a Member State and effective judicial protection. 
Although they have no legal basis, the Rules of Procedure of the Courts do state, 
under the provisions of Article 177(3) at issue, that, in a case at second instance, 
the court’s task is to be deemed to be completed only when the case is returned by 
the Registration Service, that is to say ‘registered’. Therefore, the judicial decision 
is not finalised, despite the fact that it has been delivered collectively by a judicial 
panel; that decision must in fact be confirmed by a registrations judge, appointed 
by the President of the court as the body responsible for judicial administration 
under the annual schedule for the assignment of judges. The name of the 
registrations judge is not known to the parties. No law requires this as a condition 
for the adoption of a judicial decision, but this exists in the practice of the courts 
of second instance of the Republic of Croatia under the Rules of Procedure of the 
Courts. 
Examination of the practice and functioning of other courts in the European Union 
does not reveal the existence of similar laws or practices requiring a decision 
delivered to be approved by a judge who is not part of the chamber and which 
make notification (by the first-instance court) of the decision (judgment or order) 
to the parties to the proceedings conditional on countersignature by that judge. 
The following question is therefore submitted:  
Can the rule laid down in the second part of the first sentence and in the second 
sentence of Article 177(3) of the Sudski poslovnik (Rules of Procedure of the 
Courts), which provides that ‘a case before a court of second instance shall be 
deemed to be closed on the date on which the decision is sent from the court 
office, after the case has been returned by the Registration Service. The 
Registration Service shall be required to return the file to the court office as 
promptly as possible after receipt thereof. The decision shall then be notified 
within a further period of eight days’ be considered compatible with Article 19(1) 
TEU and Article 47 of the Charter? 
Annexed to the present request are copies of the order of the Trgovački sud u 
Pazinu (Commercial Court, Pazin) […] of 27 May 2021, of the Financial 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2021 – CASE C-554/21 
 
6  
Agency’s appeal, of the minutes of the chamber meeting of 25 June 2021, of the 
order of the Visoki trgovački sud (Commercial Court of Appeal) […] of 25 June 
2021, of the order of the Visoki trgovački sud (Commercial Court of Appeal) […] 
of 8 May 2019, of the letter from the registrations judge of 28 June 2021, of the 
order of the Visoki trgovački sud (Commercial Court of Appeal) […] of 18 June 
2021, of the minutes of the chamber meeting of 3 August 2021 and of the order 
staying the proceedings of 3 August 2021. 
Zagreb, 3 August 2021 
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