Judgment;Summary — ECLI:EU:C:2021:719
Date: 2021-09-09
Language of the case: Bulgarian
Court formation: Sixth Chamber
Subject matter: Citizenship of the Union;Area of freedom, security and justice;Judicial cooperation in civil matters;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary  C-208/20 — 1 
Case C-208/20 
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:  
14 May 2020 
Referring court:  
Sofiyski rayonen sad (Sofia District Court, Bulgaria) 
Date of the decision to refer:  
14 May 2020 
Applicants:  
‘Toplofikatsia Sofia’ EAD 
‘Chez Elektro Balgaria’ AD 
‘Agentsia za kontrol na prosrocheni zadalzhenia’ EOOD  
  
Subject matter of the case in the main proceedings 
Three civil cases in which the respective opposing party is not yet able to acquire 
the status of party to the proceedings, because it is impossible to serve judicial 
documents on the defendants personally, and where their neighbours or relatives 
have stated that they live in other Member States of the European Union.  
Subject matter and legal basis of the reference 
Request for a preliminary ruling under Article 267 TFEU on the interpretation of 
Article 20(2)(a) TFEU, Article 1(1)(a) of Regulation (EC) No 1206/2001 and 
Article 5(1) of Regulation No 1215/2012. 
Questions referred 
1 Must Article 20(2)(a) of the Treaty on the Functioning of the European Union, in 
conjunction with the second paragraph of Article 47 of the Charter of 
Fundamental Rights, the principles of non-discrimination and the equivalence of 
EN 
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procedural measures in national judicial proceedings and Article 1[(1)](a) of 
Regulation (EC) No 1206/2001 on cooperation between the courts of the Member 
States in the taking of evidence in civil or commercial matters be interpreted as 
meaning that, where the national law of the court seised provides that the latter is 
to obtain, of its own motion, information regarding the defendant’s address in its 
own State and it is established that the defendant is in another State of the 
European Union, the national court seised is obliged to obtain information 
regarding the defendant’s address from the competent authorities of the State in 
which he resides?  
2 Must Article 5(1) of Regulation (EU) No 1215/2012 of 12 December 2012 on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters, in conjunction with the principle that the national court must 
guarantee procedural rights for the effective protection of rights arising from EU 
law, be interpreted as meaning that, when determining the habitual residence of a 
debtor as a condition required under national law for the conduct of unilateral 
formal proceedings in which evidence is not taken, such as order for payment 
procedures, the national court is obliged to interpret any reasonable suspicion that 
the debtor is habitually resident in another State of the European Union as a lack 
of a legal basis for issuing an order for payment or as a basis for the order for 
payment not acquiring the force of res judicata?  
3 Must Article 5(1) of Regulation (EU) No 1215/2012 of 12 December 2012 on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters, in conjunction with the principle that the national court must 
guarantee procedural rights for the effective protection of rights deriving from EU 
law, be interpreted as meaning that a national court, which, after having issued an 
order for payment against a particular debtor, has established that that debtor is 
unlikely to be habitually resident in the State of the court and, provided that this 
constitutes an obstacle to the issuing of an order for payment against such a debtor 
under national law, is obliged to annul, of its own motion, the order for payment 
issued, despite the absence of an express statutory provision to that effect?  
4 If the third question is answered in the negative, are the provisions referred to in 
that question to be interpreted as obliging the national court to annul the order for 
payment issued where it has carried out a check and established with certainty that 
the debtor is not habitually resident in the State of the court seised?  
Legislation and case-law of the European Union 
Treaty on the Functioning of the European Union Article 18 and 20(2)(a). 
Charter of Fundamental Rights of the European Union: second paragraph of 
Article 47. 
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Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and 
the recognition and enforcement of judgments in civil and commercial matters: 
Article 60(1). 
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between 
the courts of the Member States in the taking of evidence in civil or commercial 
matters: Article 1(1)(a). 
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: Article 1(1) and (2). 
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: Article 5(1). 
Judgment of the Court of Justice of 16 December 1976, Rewe-Zentralfinanz, 33-
76, EU:C:1976:188. 
Judgment of the Court of Justice of 19 December 2012, Alder, C-325/11, 
EU:C:2012:824. 
Judgment of the Court of Justice of 16 September 2015, Alpha Bank Cyprus, 
C-519/13, EU:C:2015:603.  
Order of the Court of Justice of 28 April 2016, Alta Realitat, C-384/14, 
EU:C:2016:316. 
National provisions 
Zakon za zadalzheniata i dogovorite (Law on obligations and contracts): 
Article 68(a). 
5 Grazhdanski protsesualen kodeks (Code of Civil Procedure): Articles 38, 40 and 
41, Article 42(1), Article 43, Article 44(1), Article 45, Article 46(1) and (2), 
Article 47(1), (2), (3), (5), (6) and (7), Articles 48, 53 and 246, Article 282(2), 
Article 410(1)(1) and (2), Article 411, Article 413(1), Articles 414-416, 419 and 
423.  
6 Kodeks na mezhdunarodnoto chastno pravo (Code on private international law): 
Articles 4(1) and 48. 
7 Zakon za grazhdanskata registratsia (Law on the registration of citizens): 
Articles 90(1), 93, 94 and 96(1).  
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Brief summary of the facts and procedure 
8 Three civil cases have been brought before the referring court, in which the 
opposing party is not yet able to acquire the status of party to the proceedings, 
because it is not possible to serve judicial documents on the defendants.  
9 In the first set of (litigation) proceedings, the applicant ‘Toplofikatsia Sofia’ EAD 
brought a action against the defendant DP, a natural person, consumer and 
Bulgarian citizen, seeking to establish a claim in respect of thermal energy that 
had been supplied to a property in Sofia, together with the related services and 
statutory interest. 
10 The proceedings were initiated after the debtor DP was not found at her registered 
addresses in an order for payment procedure. The court ordered a notice to be 
affixed to the front door, but, once again, the documents were not delivered. The 
court therefore indicated that an action could be brought to establish the existence 
of the claims set out in the order for payment. 
11 A copy of the application initiating proceedings was sent to DP at the address in 
Sofia specified in that document, but DP was not found there. The court obtained, 
of its own motion, information regarding the address from the population register 
and employer register kept by the state authorities. It is clear from those registers 
that DP’s permanent and current address of residence is that specified in the 
application initiating proceedings, but that DP has officially not been working in 
Bulgaria since January 2013. The Court ordered that she be summoned to appear 
at her registered address by affixing a notice [to the front door]. In October 2019, 
the officer of the court responsible for serving notices visited the address and 
noted that, according to a neighbour, DP had been living in France for seven 
years.  
12 In the second set of proceedings (concerning an order for payment procedure), the 
applicant in that procedure, ‘Chez Elektro Balgaria’ AD, a municipal utility 
company, brought an action for the issue of an order for payment against EQ, a 
natural person and a consumer, due to his failure to pay for the electricity supplied 
to a property in Sofia. 
13 The court issued an order for payment and ordered that it be served on the debtor 
EQ so as to enable him to state his position as to whether he would file a 
statement of opposition. The officer of the court visited the address specified by 
the applicant in the order for payment procedure, which matched the debtor’s 
permanent and current address of residence in the population register. The officer 
of the court did not find anyone at that address and affixed a notice to the front 
door. He learned from a neighbour that the debtor had been living in Germany for 
one year. The information obtained by the court of its own motion showed that the 
debtor has not been insured in Bulgaria since January 2010.  
14 In the third set of proceedings (concerning an order for payment procedure), 
‘Agentsia za kontrol na prosrocheni zadalzhenia’ EOOD, a debt collection agency, 
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brought an action for the issue of an order for payment against FR, a natural 
person and a consumer, who has not repaid a loan to a financial institution based 
in Sofia.  
15 The court issued an order for payment and ordered that it be served on the debtor 
FR so as to enable him to state his position as to whether he would file a statement 
of opposition. On two occasions the officer of the court visited the address 
specified by the applicant in the order for payment procedure, which matched the 
debtor’s permanent and current address of residence in the population register, and 
established that the debtor’s mother lives there. She refused to accept the 
document on behalf of her son and stated that he had been living in Germany for 
three years but she did not know his exact address. She provided two Bulgarian 
mobile phone numbers on which to contact the debtor, but nobody answered the 
calls made to those numbers.  
Brief summary of the basis for the reference 
16 The referring court has doubts as to whether, in cases where the addressee of 
judicial documents is located in another State, the national law governing the 
procedure for bringing an action provides for measures for effecting service which 
are compatible with the requirements of EU law. In particular, it is necessary to 
establish whether the principle of equivalence of procedural rules established in 
the case-law of the Court of Justice requires that the address of persons residing 
abroad also be located, as is done in the case of persons with a registered address 
in Bulgaria.  
17 However, in the order for payment procedure — which is conducted formally and 
in which the claims asserted by the applicant in the procedure are not subject to 
the standards of proof of litigation proceedings — national law links the 
jurisdiction of the court to the debtor’s place of habitual residence. Therefore, the 
question of how service is effected in such proceedings is also relevant to the 
international jurisdiction of the court. 
18 The request for a preliminary ruling concerns the application of the principle of 
procedural autonomy of the Member States and the limitations on that principle 
that have been introduced into the case-law of the Court of Justice. According to 
the judgment of the Court of Justice in Case [33-76], Rewe-Zentralfinanz, 
Member States must apply their procedural conditions under national law equally 
to rights arising from national law and those conferred by EU law. 
19 Article 18 TFEU, which prohibits discrimination on grounds of nationality, is also 
related to the question of locating the address of a particular addressee of judicial 
documents abroad. Article 20(2)(a) TFEU, which provides for the right to reside 
freely throughout the territory of the European Union, is also relevant. Regulation 
1206/2001 is also applicable, because the civil court in the present case wants to 
know whether it must locate the address of the parties abroad.  
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20 As regards the question of the national court’s jurisdiction to issue orders for 
payment against persons habitually resident outside the territory of the State of the 
court, the provision of Article 5(1) of Regulation No 1215/2002 applies. This 
provision prohibits persons domiciled in a Member State from being sued in the 
courts of another Member State if the conditions laid down in Articles 7 to 26 of 
the regulation are not met. Under Article 62(1) of that regulation, the concept of 
‘domicile’ is governed by the national law of the court seised.  
21 According to the interpretation given in the judgment in the Alder case, C-325/11, 
Article 1(1) of Regulation No 1393/2007 precludes national legislation which 
requires a citizen of the European Union to designate a representative who is 
authorised to accept service in the State of the court before which he is a party to 
judicial proceedings. Article 1(2) of that regulation provides that the latter does 
not apply to persons whose address is not known.  
Connection with EU law and the need for interpretation 
22 First of all, it should be noted that the cases involved are civil matters that display 
a cross-border element, as it is likely that one of the parties is residing abroad. In 
view of the subject matter of the disputes — payment obligations in respect of 
goods and services supplied in Bulgaria — the Bulgarian courts are to be regarded 
as having jurisdiction in accordance with the general rules laid down in 
Regulation 1215/2012, regardless of whether the defendants are domiciled in 
Bulgaria.  
23 In the first case, the court must — based on the facts described above relating to 
the service of documents on the defendant — consider the action by asking the 
applicant whether it knew that the defendant was registered at a [different] address 
known to the applicant. It is very likely that the applicant will state that it was not 
aware of such an address, bearing in mind that the application initiating 
proceedings also specified only one registered address for the defendant. Under 
these circumstances, the court will have to publish a notice in the ‘Darzhaven 
vestnik’ (Bulgarian Official Journal) and, if the defendant does not appear (which 
is also likely, because she is not in Bulgaria and has no possibility of reading the 
printed version of the official publication of that country), appoint a special 
authorised representative for her.  
24 This would deprive the defendant of the possibility of participating in the 
proceedings if the facts of the case were such that she lives abroad — in another 
Member State. If this were not the case and the defendant were at a different 
address in Bulgaria, the court would have the possibility of carrying out further 
investigations into registered addresses or into employers. Under national law, 
there is no possibility of specifying a current address abroad and, accordingly, the 
defendant is unable to specify her address abroad in the present case.  
25 Thus, national law creates unequal conditions for persons temporarily living at 
another address in Bulgaria and those living at another address abroad. At the 
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same time, Bulgarian citizens must always be sought at their registered address in 
Bulgaria if judicial proceedings are brought against them. Thus, persons who have 
exercised their right to free movement under Article 20(2)(a) TFEU are treated 
differently with regard to their rights to participate in judicial proceedings 
[guaranteed under the second paragraph of Article 47 of the Charter of 
Fundamental Rights].  
26 The question is whether this difference in treatment is justified in the light of the 
criteria established by the Court of Justice (albeit on other grounds) in 
paragraph 58 of the order in the Alta Realitat case, C-384/14 — according to 
which the effective exchange of documents in cross-border cases must be weighed 
against the protection of the procedural rights of the addressee (a principle also 
established in paragraph 41 of the judgment in the Alpha Bank Cyprus case, 
C-519/13). If the summoning of a citizen without a registered address abroad and 
without the possibility of him specifying such a specific address is contrary to EU 
law, it is also necessary to answer the question as to whether, in this case, the 
national court may request data concerning the registration of the defendant’s 
address from her State of residence — the French Republic. The court has another 
instrument of EU law available to it for this purpose, namely the possibility for it 
to request courts in other States of the European Union to take evidence under 
Regulation 1206/2001. However, that approach can only be applied where it is 
considered that EU law imposes an obligation on the national court, in the light of 
the measures available under national law, to determine the addresses of the 
parties in other Member States also.  
27 In the two order for payment procedures in which final acts have already been 
adopted — orders for payment have been issued under the formal procedures, but 
it is necessary to examine whether those acts can acquire the force of res 
judicata — it is possible, according to the national court, that the acts in question 
were adopted even though there is no international jurisdiction.  
28 Under Article 5(1) of Regulation No 1215/2015, a court of a Member State may 
not give judgment on a person domiciled in another Member State, other than in 
the circumstances set out in that regulation. The concept of ‘domicile’ is 
determined by the law of each State.  
29 The Bulgarian legislature has not explicitly defined or referred to a legal concept 
under national law that is to be generally interpreted as corresponding to the 
concept of ‘domicile’. According to the case-law of the Varhoven kasatsionen sad 
(VKS, Supreme Court of Cassation, Bulgaria), this cannot be the permanent 
address of residence, as this address can only be located within the territory of 
Bulgaria. 
30 Consequently, under Bulgarian law, the category of ‘domicile’ is defined 
according to two criteria — the current registered address or the habitual 
residence. Regarding the order for payment procedure, however, the legislature 
categorically prohibits the issuing of an order for payment if the person against 
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whom such an order is to be issued is habitually resident in the territory of a State 
outside Bulgaria.  
31 However, by interpretative judgment No 4/2013, the VKS obliged national courts 
to apply this rule restrictively, since there is no taking of evidence in the order for 
payment procedure and it is presumed that the national court in the procedure is 
unable to investigate whether the statutory requirement that the debtor be 
habitually resident in Bulgaria is met. The court therefore has to issue an order for 
payment and if no statement of opposition is filed against it (for which no grounds 
are required) and that order for payment is served on a person having the 
addressee’s registered address, the order for payment acquires the force of res 
judicata. Based on the order for payment that has acquired the force of res 
judicata, enforcement proceedings can be initiated and enforcement can be carried 
out against the debtor’s assets, even if his habitual residence is outside of 
Bulgaria.  
32 At the same time, according to the interpretative judgment cited, the court does 
not assess whether or not the current registered address in another State constitutes 
a ground for the national court to assume that the habitual residence is in that 
State.  
33 Although the national case-law provides for protection against an order for 
payment issued against a debtor habitually resident in another State via the 
possibility of filing a statement of opposition with the court of appeal, this 
protection is not effective. This is the case because the opposition before the court 
of appeal does not temporarily suspend the enforcement proceedings that have 
been initiated. The debtor may apply for temporary suspension only if he pays a 
deposit.  
34 The referring court has serious doubts as to whether such an interpretation 
deprives the rule in Article 5(1) of Regulation No 1215/2012 of its [practical] 
effectiveness as regards the concept of ‘domicile’. Accordingly, the question 
arises as to whether the VKS’s interpretation of the way in which the court in the 
order for payment procedure conducts investigations into the habitual residence of 
the debtor — without verifying it and without relying on the information obtained 
by the officers of the court that are responsible for serving notices — is 
compatible with EU law. In particular, there are doubts as to whether the principle 
of providing effective measures to protect the rights arising from EU law, as 
established in the judgment in the Rewe-Zentralfinanz case, [33-76], is complied 
with.  
35 The national court also seeks an assessment of the case where the debtor’s 
habitual residence has not been established with certainty, but there is a suspicion 
that he is not in Bulgaria.  
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Considerations of the referring court: 
36 By its first question, the referring court asks the Court of Justice to assess whether, 
under certain conditions, the principle of effective judicial protection in national 
legal proceedings established in the judgment in Rewe-Zentralfinanz, [33-76], 
should be extended. According to that judgment and the settled case-law of the 
Court of Justice, the principle of procedural autonomy obliges Member States to 
designate courts and procedures that effectively and uniformly (in relation to 
rights arising from national law) protect the rights conferred by EU law.  
37 In the present case, it is clear that a national law, namely the obligation of the 
court to seek the registered address of the defendant, is not applied equally to 
citizens residing in another Member State of the EU. For these citizens, it is not 
clear whether the court is obliged to take evidence regarding their address if 
sufficient information as to which State of the European Union they are residing 
in is available during the proceedings. At the same time, Article 1(2) of 
Regulation 1393/2007, or the Regulation on the service of documents, explicitly 
excludes the application of the latter to persons whose address is not known.  
38 In these circumstances, the methods for ensuring the participation of Bulgarian 
citizens living in another State in civil proceedings before the Bulgarian courts are 
extremely ineffective. In practice, they depend on the applicant’s good faith in 
providing the address of these citizens in the other State.  
39 It should be noted that this situation is brought about partly by the rules for 
registering an address in Bulgaria. The Bulgarian Law on the registration of 
citizens does not permit the registration of a specific address of a Bulgarian citizen 
abroad. Accordingly, if only the State of residence is registered, this cannot be 
used to serve notices on the addressee either. The referring court takes the view 
that this circumstance has a significant bearing on the question of whether the 
national court is required to locate the addresses of Bulgarian nationals in other 
Member States.  
40 The referring court cannot propose a specific answer to the first question in the 
light of the criterion of weighing the speed of service against the protection of the 
procedural rights of the parties. On the one hand, locating a person in other 
countries is a procedure that delays the court proceedings, which are ultimately 
conducted against Bulgarian citizens with certain obligations towards their 
country of origin, including the obligation to register their address and have a 
contact person available for maintaining contact with the state authorities. On the 
other hand, this obligation is significantly facilitated under EU law (see 
paragraphs 39-41 of the judgment in the Alder case, C-325/11). It is also true that 
the defendants in the proceedings suspended by the national court did not report 
that they lived outside the State of their nationality, but even if they had fulfilled 
that obligation, that would not make it possible to establish their address 
unambiguously.  
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41 As regards the second group of questions — or the way in which habitual 
residence is established in the order for payment procedure — the referring court 
considers that the national authorities must ensure the effective application of EU 
law. This requires that persons domiciled in a Member State of the European 
Union not be the subject of a judgment given in the other States. In order to ensure 
that this objective is achieved in the order for payment procedure, the national 
legislature has prohibited the issuing of orders for payment against persons having 
their habitual residence outside Bulgaria.  
42 However, the case-law has limited this obligation by requiring the court to 
establish a negative circumstance — that the citizen is not habitually resident in 
Bulgaria, and, moreover, the proceedings are fundamentally unilateral in nature 
and no evidence is taken in those proceedings. In that context, the VKS prohibited 
the courts from relying on indirect and incomplete evidence, such as information 
provided by neighbours or relatives, for example, stating that the debtor lives 
abroad.  
According to the referring court, if it is suspected that the debtor in the order for 
payment procedure is not habitually resident in Bulgaria, the order for payment 
issued must be annulled by the court that issued it.