Judgment;Summary — ECLI:EU:C:2024:1001
Date: 2024-12-05
Language of the case: German
Court formation: Second Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-389/23 – 1 
Case C-389/23 
Request for a preliminary ruling 
Date lodged: 
27 June 2023 
Referring court: 
Amtsgericht Wedding (Germany) 
Date of the decision to refer: 
19 May 2023 
Applicant: 
Bulgarfrukt – Fruchthandels GmbH 
Defendant: 
Oranzherii Gimel II EOOD 
  
Order 
In the case of 
Bulgarfrukt – Fruchthandels GmbH, […] 81373 Munich 
— Applicant — 
[…] 
v 
Oranzherii Gimel II EOOD, […] 1839 Sofia, Bulgaria 
— Defendant — 
[…] 
the Amtsgericht Wedding (Local Court, Wedding, Germany) […] ordered as 
follows on 19 May 2023: 
I. 
EN 
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The proceedings are stayed. 
II. 
The following questions on the interpretation of [EU] law are referred to the Court 
of Justice of the European [Union] for a preliminary ruling under Article 267 
TFEU: 
1. Are 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 (service 
of documents), and repealing Council Regulation (EC) No 1348/2000, and 
Regulation (EC) No 1896/2006 of the European Parliament and of the 
Council of 12 December 2006 creating a European order for payment 
procedure to be interpreted as precluding a provision of national law which 
provides that a European order for payment must be annulled by the court in 
the context of proceedings in the event of failure to serve or to effect proper 
service on the defendant? 
2. If Question 1 is answered in the affirmative: Must the aforementioned 
regulations be interpreted as precluding a provision of national law which 
provides that enforcement of a European order for payment must be declared 
inadmissible in the event of failure to serve the order for payment or to 
effect proper service on the defendant? 
3. If Question 1 is answered in the affirmative: Must Regulation No 1896/2006 
be interpreted as meaning that a defendant who is aware that a European 
order for payment has been issued, but on whom that order has not yet been 
served or on whom service has not yet been properly effected, cannot yet 
effectively object to it? 
Grounds: 
I. 
On [4 January 2019], a European order for payment was issued by the 
Amtsgericht Wedding – Europäisches Mahngericht Deutschland (Local Court, 
Wedding  German Court for European orders for payment, Germany) at the 
request of the applicant, established in Germany, against the defendant, 
established in Bulgaria, pursuant to Regulation No 1896/2006. Service was 
effected via the Bulgarian authorities, in accordance with Regulation 
No 1393/2007. The Bulgarian receiving agency then certified that service had 
taken place on 26 July 2019. However, it was not apparent from the certificate 
provided for in Article 10(1) of Regulation No 1393/2007 that there had been 
delivery to a person, service by electronic means, posting in a letterbox or any 
other form of deposit. Rather, in point 12.2.1.3 of that form, it was stated that the 
document had been served by another method. Detailed information on the matter 
was drafted in Bulgarian, translated freely into German; [the German is translated 
BULGARFRUKT 
 
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into English as follows]: ‘Article 50(2) of the GPK (Bulgarian Code of Judicial 
Procedure): The person has left the address and its [current] address is not entered 
in the register. The notifications (…) are deemed to have been lawfully served.’ 
On 24 April 2020, the Mahngericht (German Court for European orders for 
payment), taking the view that proper service had been effected, issued the 
declaration of enforceability in accordance with Article 18(1) of Regulation 
No 1896/2006. 
By fax of 1 March 2021, the defendant filed a statement of opposition to the order 
for payment and applied, by way of alternative, for restitutio in integrum. With 
regard to the substance of the matter, it claimed that it had become aware of the 
European order for payment for the first time on 24 February 2021 in the context 
of enforcement measures, attaching a statement in lieu of oath to that effect. 
Following information from the court concerning the remedies available, it stated, 
by document of 25 March 2021, that it intended to lodge a complaint concerning 
service under Paragraph 1092a of the Zivilprozessordnung (Code of Civil 
Procedure; ‘the ZPO’). 
II. 
In the present case, the defendant submits that the European order for payment 
was not served on it. 
In all cases, an application for a review under Article 20 of Regulation 
No 1896/2006 presupposes that proper service has been effected, that the 
opposition period referred to in Article 16(2) of Regulation No 1896/2006 has 
started to run and that a statement of opposition has not been lodged within the 
time limit. On referral by the adjudicating court, the EU Court of Justice ruled, in 
its [judgment] of 4 September 2014, eco cosmetics and Raiffeisenbank St. 
Georgen, C-119/13 and C-120/13, that the procedures for reviewing the European 
order for payment laid down in Article 20 of Regulation No 1896/2006 are not 
applicable by analogy where it appears that a European order for payment has not 
been served in a manner consistent with the minimum standards laid down in 
Articles 13 to 15 of that regulation. In those cases, the Court of Justice also held 
that, where it is only after a European order for payment has been declared 
enforceable that such an irregularity is exposed, the defendant must have the 
opportunity to raise that irregularity, which, if it is duly established, will invalidate 
the declaration of enforceability. In the absence of a remedy under EU law, such 
legal protection has to be ensured within the framework of national rules. 
[…] [Considerations on the previous legal situation not relevant in the present 
case] 
Subsequently, the German legislature introduced, in Paragraph 1092a of the ZPO, 
provisions of national law relating to a specialised legal remedy. It reads as 
follows: 
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Remedy in the event of failure to serve or to effect proper service of the 
European order for payment 
(1) 1 The defendant may apply for the annulment of the European order for 
payment, if the European order for payment 
1. was not served on him or her, or 
2. was served on him or her in a manner that does not meet the requirements of 
Article 13 to 15 of Regulation (EC) No 1896/2006. 
2 The application must be filed within one month from the time at which the 
defendant had or could have had knowledge of the issuance of the European order 
for payment or the lack of service. 3 Should the court allow the application for one 
of the reasons set out in the first sentence, the European order for payment shall be 
annulled. 
(2) 1 Should the court already have declared the European order for payment 
enforceable pursuant to Article 18 of Regulation (EC) No 1896/2006 at the time 
of the application under the first sentence of subparagraph (1), and should it now 
allow the application, it shall declare the compulsory enforcement under the order 
for payment to be inadmissible. 2 The third sentence of subparagraph (1) shall 
apply accordingly. 
(3) 1 The decision shall be delivered by court order. 2 The court order shall not 
be open to appeal. 3 Paragraph 1092(2) to (4) shall apply mutatis mutandis. 
III. 
Consideration of the first question referred: 
1 In the view of the referring court, service of the European order for payment was 
not properly effected. It is true that the Bulgarian receiving agency assumed that 
service had been effected in the certificate of service; as regards the substance, 
however, after translation of the information that it contains, it does not follow 
that service took place in an effective form under [EU] law. Rather, the receiving 
agency stated that the defendant had already left the address indicated and 
assumed solely on the basis of still-existing commercial register entries that 
service was nevertheless deemed to have been properly effected. The receiving 
agency therefore considered service to have been effected exclusively on the basis 
of a legal fiction (clearly) derived from Bulgarian national law. The stricter 
minimum conditions for service to be effected, as laid down in Articles 12(5) and 
13 to 15 of Regulation No 1896/2006, have therefore clearly not been met; 
contrary to what the position may be under Bulgarian national law, those 
provisions do not provide for a fiction of service based solely on entries in the 
commercial register. 
BULGARFRUKT 
 
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2 As a preliminary point, the referring court wishes to point out that it considers that 
the rule laid down in Paragraph 1092a of the ZPO is, in principle, also problematic 
from the point of view of EU law on the ground that the remedy is time-limited 
and the time limit is linked to a point in time at which a defendant is merely aware 
of the issue of the order for payment or of the lack of service, without necessarily 
having received the order for payment in the meantime, or without necessarily 
even knowing at which court or under which case number he or she could bring an 
action. Furthermore, the period must also begin to run where the defendant only 
could have had such knowledge, that is to say, also in the case of slightly 
negligent ignorance of the existence of the order for payment. 
The referring court cannot make this aspect the subject of the present question 
referred for a preliminary ruling, however, since it is not relevant to the decision. 
The defendant has stated and credibly explained that it first became aware of the 
order for payment on 24 February 2021. Not only its pleading of 25 March 2021, 
by which it expressly brought the action under Paragraph 1092a of the ZPO, but 
also its pleading of 1 March 2021 (objection and ‘application for restitutio in 
integrum’) had to be interpreted as a legal remedy under Paragraph 1092a of the 
ZPO. As regards the substance, its reasoning relied exclusively on an absence of 
service. The pleading of 1 March 2021 complied with the time limit laid down in 
the second sentence of Paragraph 1092a(1) of the ZPO, with the result that the 
question whether the rule is also inapplicable because of the time-limit rule cannot 
be relevant to the decision in the present case. 
3 The question as to which legal consequence must be determined by the court is, 
however, relevant to the decision. 
In the [judgment] in eco cosmetics and Raiffeisenbank St. Georgen, the Court of 
Justice held that a national remedy by which the defendant successfully claims 
that the European order for payment was not served, or was not effectively served, 
on him or her must have the result of invalidating the declaration of enforceability. 
It is true that the present court understands this only as a minimum requirement 
which does not generally exclude derogating national rules. However, the present 
court has doubts as to whether the German legislation thus created, which is 
significantly more stringent than the decision of the Court of Justice, can be 
upheld. In accordance with the third sentence of Paragraph 1092a(1) of the ZPO, 
if the European order for payment has not been served at all or has not been 
effectively served, the court must, on application by the defendant, annul a 
European order for payment. 
a. In the view of the referring court, Paragraph 1092a(1) of the ZPO infringes 
the provisions of Regulation No 1896/2006, in particular Articles 16 and 17 
thereof. Paragraph 1092a(1) of the ZPO covers the case where the European order 
for payment has not yet been served at all or has not been effectively served, that 
is to say, a situation in which the objection period has not yet started to run. In 
general, there should be no legal interest in creating a specific remedy enabling a 
defendant to oppose a European order for payment if no objection period has 
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started to run to his or her detriment. In the view of the referring court, that 
constitutes at the same time an infringement of the provisions of Regulation 
No 1896/2006. That regulation provides, as a legal remedy against a European 
order for payment, only for the statement of opposition provided for in Article 16, 
the consequence of which is that, under Article 17, the proceedings are to continue 
before the competent courts of the Member State of origin. By contrast, 
Paragraph 1092a(1) of the ZPO provides that the defendant, well before that date, 
may initiate a legal remedy other than the statement of opposition, enabling him or 
her, in addition, to have the European order for payment annulled in its entirety. 
The defendant is thus in a position to prevent the case, in its entirety, from being 
examined before an ordinary civil court as provided for in Article 17. The 
referring court therefore considers that that legislation is contrary to the primacy 
of the provisions of EU law. 
b. The present court also has concerns regarding the rule laid down in 
Paragraph 1092a(1) of the ZPO on the ground that the question whether the 
European order for payment is annulled or whether, as provided for in Article 17 
of Regulation No 1896/2006, litigation is conducted ultimately depends on 
fortuitous events: If the Mahngericht (German Court for European orders for 
payment) finds, of its own motion, that the European order for payment has not 
yet been served at all or has not been effectively served, it will (as a matter of 
course) effect a new service of its own motion, which may then trigger the 
subsequent legal consequences provided for in Articles 16 and 17 of Regulation 
No 1896/2006 or also, in the absence of a statement of opposition, lead to a 
legally binding order for payment. On the other hand, if, in such a situation, the 
defendant becomes aware by chance in advance that a European order for 
payment has been issued (for example, because of service on an incorrect 
addressee who notifies him or her, or by service which is not accompanied by the 
required translation) and has recourse to a remedy provided for in 
Paragraph 1092a of the ZPO, the order for payment as such would have to be set 
aside in its entirety by the court and the proceedings would be definitively 
terminated in favour of the defendant. However, in the view of the referring court, 
if it is merely a matter of chance whether the court itself recognises the absence of 
service, whether the order for payment is subsequently annulled or whether 
litigation takes place at a later date, this would amount to an unequal treatment of 
legal consequences which is not objectively justified. 
c. It is apparent from recital 9 of Regulation No 1896/2006 that the purpose of 
that regulation is to simplify and speed up the possibility of pursuing and 
clarifying civil claims in cross-border cases. In accordance with recitals 1 and 2 of 
the regulation, it seeks to promote the proper functioning of the internal market by 
eliminating obstacles to the functioning of civil proceedings. The referring court 
also sees evidence for the concern that the legal remedy provided for in 
Paragraph 1092a of the ZPO may also preclude the practical effectiveness of the 
regulation to achieve those objectives. Where a creditor is faced with the question 
whether he/she intends to assert his/her rights in the context of normal 
proceedings or in that of a European order for payment procedure, he/she must 
BULGARFRUKT 
 
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also, if Paragraph 1092a of the ZPO remains in force, consider the risk that the 
order for payment, even if it has not yet been implemented with legal effect 
against the defendant, may be definitively set aside. This would not only have the 
effect of charging applicants the costs of the European order for payment 
procedure, but would also mean that they have to assert their rights in new 
proceedings with potentially long delays. Depending on the case, applicants may 
even be totally excluded from enforcing their rights, namely where the limitation 
period has already expired when new proceedings are initiated. The rule in 
Paragraph 1092a of the ZPO may therefore, as the case may be, lead to the 
possibility that enforcement of a claim by means of the European order for 
payment procedure may be used only rarely. 
d. The referring court also considers itself to be supported in its concerns 
regarding Paragraph 1092a of the ZPO by the current case-law of the Court of 
Justice. In its judgment of 2 March 2017, Henderson, C-354/15, the Court of 
Justice held that the omission of the standard form set out in Annex II to 
Regulation No 1393/2007 does not render the earlier service invalid in its entirety, 
but can result only in the requirement that the court correct such an omission. In 
its judgment of 6 September 2018, C-21/17, Catlin Europe SE, the Court of 
Justice ruled that this principle also applies to service in the European order for 
payment procedure. If service is not to be void in its entirety merely on account of 
problems encountered in its implementation, such a legal consequence should be 
excluded entirely a fortiori for the document to be served. It also seems that it is 
to be understood as meaning that the Court of Justice also stated in Catlin Europe 
SE (paragraph 49) that incorrect service cannot render the document to be served 
invalid either. 
The fact that the more recent Regulation (EU) 2020/1784 of the European 
Parliament and of the Council of 25 November 2020 on the service in the Member 
States of judicial and extrajudicial documents in civil or commercial matters now 
provides, in Article 12(5) and (6), for regularisation in the event of non-service, 
but not for the invalidity of service as a whole or, as in the present case, of the 
entirety of the document to be served, also militates in favour of the concerns of 
the referring court with regard to the rule laid down in Paragraph 1092a of the 
ZPO. 
IV. 
The second question: 
Where, as in the present case, the court has already issued the declaration of 
enforceability to the European order for payment, Paragraph 1092a(2) of the ZPO 
provides that the court, in addition, is also to declare that the enforcement of the 
order for payment is inadmissible. 
If, in the context of the first question referred for a preliminary ruling, the Court of 
Justice takes the view that a provision such as that laid down in 
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Paragraph 1092a(1) of the ZPO is not compatible with [EU] law, the provision of 
Paragraph 1092a(2) of the ZPO is also rendered unnecessary in the event of direct 
application. This is because it presupposes that the court has granted the 
application under subparagraph 1 and indicates – consistently, even if it may only 
have a declaratory function – that it must be held that the enforcement of the order 
for payment must then also be declared inadmissible. 
However, should the Court of Justice conclude that Paragraph 1092a(1) of the 
ZPO is inapplicable, the adjudicating court asks whether it could be held that the 
enforcement of the order – in isolation – could be declared inadmissible in the 
context of the national remedy by analogy with Paragraph 1092a(2) of the ZPO. 
The referring court would also have concerns about that. In its [judgment] in eco 
cosmetics and Raiffeisenbank St. Georgen, the Court of Justice merely stated that 
the judicial decision had to invalidate the declaration of enforceability. If, on the 
other hand, the court were to declare, by analogy with Paragraph 1092a(2) of the 
ZPO, that the enforcement of the order for payment was inadmissible, that 
wording would permanently preclude enforcement, although it is possible to 
envisage situations in which, following effective service at a later date, a 
European order for payment then becomes enforceable. 
V. 
The third question: 
In Henderson and Catlin Europe SE, the Court of Justice held that, in the event of 
failure to effect service, the court must remedy the missing service or part thereof. 
In the main proceedings in the present case, service of the European order for 
payment of 26 July 2019 was, in the view of the referring court, ineffective, as has 
already been stated. The defendant lodged a statement of opposition, by letter of 
1 March 2021, against the European order for payment, in addition to the legal 
remedy which was interpreted in the present case as an application under 
Paragraph 1092a of the ZPO. On that date, the period for filing a notice of 
opposition had not yet started to run. However, the court did not subsequently 
formally serve the order for payment on the defendant again, since the latter was 
already aware of it from the enforcement proceedings. By its third question, the 
referring court seeks to ascertain whether a defendant may validly lodge a 
statement of opposition to an existing European order for payment before that 
order has been effectively served on him or her in all respects. 
The present court considers it necessary to obtain clarification of this matter, since 
in its judgment in eco cosmetics and Raiffeisenbank St. Georgen (paragraph 42) 
the Court of Justice held that ‘an application of the opposition procedure laid 
down by Articles 16 and 17 of Regulation No 1896/2006 cannot be appropriate in 
circumstances such as those at issue in the main proceedings.’ The Court of 
Justice further stated (in paragraph 49): ‘Having regard to the foregoing 
considerations, the answer to the first question is that Regulation No 1896/2006 
BULGARFRUKT 
 
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must be interpreted as meaning that the procedures laid down in Articles 16 to 20 
thereof are not applicable where it appears that a European order for payment has 
not been served in a manner consistent with the minimum standards laid down in 
Articles 13 to 15 of that regulation.’ 
Some German legal commentators have inferred from this wording that the Court 
of Justice thereby also intended to state that a defendant on whom the order for 
payment has not yet been effectively served cannot file a statement of opposition 
to it within the time limit, not even as a precautionary measure, despite being 
aware of its existence. 
If the Court of Justice, as some have understood it, wished to exclude the 
defendant’s right to file a statement of opposition at that time, the referring court 
would see the procedural rights of the respective defendant as being restricted to 
the point of significantly limiting the legal protection provided for by Regulation 
No 1896/2006, inter alia in Article 16. Thus, a defendant on whom a European 
order for payment has been served without the required translation, but who, as a 
precautionary measure, has already lodged a statement of opposition, could be the 
subject of a final judgment by virtue of subsequent service of the translation (in 
accordance with the judgments in Henderson and Catlin Europe SE), without 
lodging a second statement of opposition because he or she considers that he or 
she has already effectively done so, since his or her first statement of opposition 
would be treated as not yet admissible. 
In other European order for payment procedures, due to the lack of clarity as to 
how the decision of the Court of Justice is to be understood, the court meanwhile 
proceeds by carrying out a new service in the event of an objection to the 
effectiveness of enforcement, while actively indicating to the defendant that he or 
she should, by way of precaution, lodge a new statement of opposition within a 
period of 30 days, in order not to suffer any legal disadvantages. As a general rule, 
defendants will not, of their own motion, realise they are required to lodge a fresh 
statement of opposition after the supplementary service in spite of the fact that 
they have previously lodged one. In the view of the referring court, the possibility 
for the defendant to oppose the European order for payment cannot depend on the 
eventuality that a court has issued such a notice and/or on whether a statement of 
opposition is actually lodged within the time limit. 
The referring court therefore wishes to know, also on account of the debate in the 
specialised literature, whether the Court of Justice intended, in paragraphs 42 and 
49 of the abovementioned judgment, to treat a premature right of objection as 
inadmissible. 
In so far as the Court of Justice reaches the conclusion that, in that situation, the 
statement of opposition may already be lodged within the time limit before service 
has been effected, the referring court therefore also considers, in so far as the case 
in the main proceedings is concerned, that, to the extent to which the order for 
payment is upheld in the context of the first and second questions referred for a 
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preliminary ruling, but the declaration of enforceability has to be set aside, it may, 
in accordance with Article 17 of Regulation No 1896/2006, transfer the 
proceedings directly for litigation in a national court without the need for a new 
service or another statement of opposition by the defendant. 
VI. 
Under the third paragraph of Article 267 TFEU, the referring court is obliged to 
refer the matter for a preliminary ruling to the Court of Justice. This follows from 
the fact that, under the second sentence of Paragraph 1092a(3) of the ZPO, no 
legal appeal is available to challenge decisions of the Amtsgericht Wedding – 
Europäisches Mahngericht Deutschland (Local Court Wedding – German Court 
for European orders for payment). 
[…]