Opinion of the Advocate General — ECLI:EU:C:2024:469
Date: 2024-06-06
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-256/23 – 1 
Case C-256/23 
Request for a preliminary ruling 
Date lodged: 
20 April 2023 
Referring court: 
Bayerisches Verwaltungsgericht Regensburg (Germany) 
Date of the decision to refer: 
11 April 2023 
Applicant: 
European Chemicals Agency (ECHA) 
Defendant: 
Hallertauer Hopfenedelungsges. m.b.H. 
  
File no: RN 7 K 19.925 
Bayerisches Verwaltungsgericht Regensburg (Bavarian Administrative 
Court of Regensburg, Germany) 
In the administrative-law case of 
European Chemicals Agency (ECHA) 
[…] 
– Applicant – 
[…] 
v 
Hallertauer Hopfenedelungsges. m.b.H. 
[…] 
– Defendant – 
EN 
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[…] 
Intervening party: 
Government of Lower Bavaria 
as a representative of the public interest 
[…] 
concerning 
Enforcement of administrative fees under the REACH Fees Regulation 
the Bavarian Administrative Court of Regensburg, 7th Chamber, issued, without 
oral proceedings 
on 11 April 2023 
the following 
Decision 
I. The proceedings are stayed. 
II. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Is Article 94(1) of Regulation (EC) No 1907/2006, according to which an 
action may be brought before the Court of Justice of the European Union against a 
decision of the agency, to be interpreted as meaning that the enforceability of 
decisions of the agency may also be the subject of an action? 
2. If the first question is to be answered in the negative: Is the first paragraph 
of Article 299 TFEU to be interpreted as meaning that it applies not only to acts 
adopted by the Council, the Commission or the European Central Bank, but also 
to decisions of the European Chemicals Agency imposing an administrative 
charge? 
3. If the second question is to be answered in the affirmative: Is the second 
paragraph of Article 299 TFEU to be interpreted as meaning that the reference to 
the Member State’s rules of civil procedure encompasses not only the rules of 
procedure but also the rules governing jurisdiction? 
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G r o u n d s: 
I. 
The subject matter of the proceedings consists of a claim for payment of an 
administrative charge for a registration effected under Regulation (EC) 
No 1907/2006. 
The applicant is an agency of the European Union established in Helsinki. The 
applicant is responsible for managing and carrying out the technical, scientific and 
administrative aspects of Regulation (EC) No 1907/2006. 
Regulation (EC) No 1907/2006 lays down rules designed to increase the 
competitiveness of the chemical industry in the European Union and to protect 
human health and the environment from the potential risks of chemicals. 
Manufacturers and importers of chemical substances are subject to a registration 
obligation under Regulation (EC) No 1907/2006. Registration is subject to 
payment of administrative charges and fees, for which the amounts are set in 
accordance with Regulation (EC) No 340/2008. The amount of administrative 
charges depends on the size of the enterprise. 
On 16 November 2010, the defendant filed a registration with the applicant 
(Registration No: 01-2119485821-32-0037) and claimed entitlement to reduced 
fees and administrative charges as a micro-enterprise. 
In 2013, the applicant reviewed the information provided by the defendant 
concerning the size of the enterprise. In that regard, by letter of 31 May 2013, the 
applicant drew the defendant’s attention to the fact that small and medium-sized 
enterprises were eligible to claim reduced fees and charges. To that end, it was 
necessary to provide evidence of the size of the enterprise. A reduction could not 
be considered without submission of such evidence. 
On 20 November 2013, the applicant issued Decision SME (2013) 4439 and 
served it on the defendant. In that decision, the applicant held that the defendant 
was not entitled to claim a reduction of the administrative charge. Consequently, 
an additional administrative charge of EUR 9,950.00 was to be invoiced. That 
decision was accompanied by a notification of the available legal remedies, which 
explained that the [defendant] was entitled to bring an action before the Court of 
Justice of the European Union within 2 months of receipt of the decision. 
By letter of 22 November 2013, the applicant sent the defendant the invoice for 
payment of the administrative charge of EUR 9,950.00, with a due date of 
22 December 2013, as notified in Decision SME (2013) 4439. 
By letter of 22 December 2013, the applicant issued a reminder in respect of the 
outstanding payment, whereby the due date was then specified as 20 February 
2014. 
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The defendant neither paid the administrative charge nor brought an action before 
the Court of Justice of the European Union against Decision SME (2013) 4439 of 
20 November 2013. 
On 15 May 2019, the applicant had an action brought before the Administrative 
Court of Regensburg seeking that the defendant be ordered to pay the amount of 
EUR 9,950.00. 
II. 
The relevant provisions of EU law are set out in: 
Article 274 of the Treaty on the Functioning of the European Union based on the 
Treaty of Lisbon which entered into force on 1 December 2009 (consolidated 
version published in OJ No C 115 of 9 May 2008, p. 47), as last amended by the 
Act concerning the conditions of accession of the Republic of Croatia and the 
adjustments to the Treaty on European Union, the Treaty on the Functioning of 
the European Union and the Treaty establishing the European Atomic Energy 
Community (OJ L 112/21 of 24 April 2012) with effect from 1 July 2013; ‘the 
TFEU’ 
Save where jurisdiction is conferred on the Court of Justice of the European 
Union by the Treaties, disputes to which the Union is a party shall not on 
that ground be excluded from the jurisdiction of the courts or tribunals of the 
Member States. 
Article 288 TFEU 
(1) To exercise the Union’s competences, the institutions shall adopt 
regulations, directives, decisions, recommendations and opinions. 
(2) A regulation shall have general application. It shall be binding in its 
entirety and directly applicable in all Member States. 
(3) A directive shall be binding, as to the result to be achieved, upon each 
Member State to which it is addressed, but shall leave to the national 
authorities the choice of form and methods. 
(4) A decision shall be binding in its entirety. A decision which specifies 
those to whom it is addressed shall be binding only on them. 
(5) Recommendations and opinions shall have no binding force. 
Article 299 TFEU 
(1) Acts of the Council, the Commission or the European Central Bank 
which impose a pecuniary obligation on persons other than States, shall be 
enforceable. 
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(2) Enforcement shall be governed by the rules of civil procedure in force 
in the State in the territory of which it is carried out. The order for its 
enforcement shall be appended to the decision, without other formality than 
verification of the authenticity of the decision, by the national authority 
which the government of each Member State shall designate for this purpose 
and shall make known to the Commission and to the Court of Justice of the 
European Union. 
(3) When these formalities have been completed on application by the 
party concerned, the latter may proceed to enforcement in accordance with 
the national law, by bringing the matter directly before the competent 
authority. 
(4) Enforcement may be suspended only by a decision of the Court. 
However, the courts of the country concerned shall have jurisdiction over 
complaints that enforcement is being carried out in an irregular manner. 
Article 74 of Regulation (EC) No 1907/2006 of the European Parliament and of 
the Council of 18 December 2006 concerning the Registration, Evaluation, 
Authorisation and Restriction of Chemicals (REACH), establishing a European 
Chemicals Agency, amending Directive 1999/45/EC and repealing Council 
Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as 
well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 
93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1); ‘Regulation No. 
1907/2006’ 
(1) The fees that are required according to Article 6(4), Article 1(1) and 
(5), Article 9(2), Article 11(4), Article 17(2), Article 18(2), Article 19(3), 
Article 22(5), Article 62(7) and Article 92(3) shall be specified in a 
Commission Regulation adopted in accordance with the procedure referred 
to in Article 133(3) by 1 June 2008. 
(2) A fee need not be paid for a registration of a substance in a quantity of 
between 1 and 10 tonnes where the registration dossier contains the full 
information in Annex VII. 
(3) The structure and amount of the fees referred to in paragraph 1 shall 
take account of the work required by this Regulation to be carried out by the 
Agency and the competent authority and shall be fixed at such a level as to 
ensure that the revenue derived from them when combined with other 
sources of the Agency's revenue pursuant to Article 96(1) is sufficient to 
cover the cost of the services delivered. The fees set for registration shall 
take into account the work that may be done pursuant to Title VI. In the case 
of Article 6(4), Article 7(1) and (5), Article 9(2), Article 11(4), Article 17(2) 
and Article 18(2), the structure and amount of fees shall take account of the 
tonnage range of the substance being registered. In all cases, a reduced fee 
shall be set for SMEs. In the case of Article 11(4), the structure and amount 
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of fees shall take into account whether information has been submitted 
jointly or separately. In the case of a request made under Article 10(a)(xi), 
the structure and amount of fees shall take into account the work required 
by the Agency in assessing the justification. 
(4) The Regulation referred to in paragraph 1 shall specify the 
circumstances under which a proportion of the fees will be transferred to the 
relevant Member State competent authority. 
(5) The Agency may collect charges for other services it provides. 
Article 94 of Regulation No 1907/2006 
(1) An action may be brought before the Court of First Instance or the 
Court of Justice, in accordance with Article 230 of the Treaty, contesting a 
decision taken by the Board of Appeal or, in cases where no right of appeal 
lies before the Board, by the Agency. 
(2) Should the Agency fail to take a decision, proceedings for failure to act 
may be brought before the Court of First Instance or the Court of Justice in 
accordance with Article 232 of the Treaty. 
(3) The Agency shall be required to take the necessary measures to comply 
with the judgment of the Court of First Instance or the Court of Justice. 
Article 13 of Commission Regulation (EC) No 340/2008 of 16 April 2008 on the 
fees and charges payable to the European Chemicals Agency pursuant to 
Regulation (EC) No 1907/2006 of the European Parliament and of the Council on 
the Registration, Evaluation, Authorisation and Restriction of Chemicals 
(REACH) (OJ 2008 L 107, p. 6); ‘Regulation (EC) No 340/2008’ 
(1) A natural or legal person that claims to be entitled to a reduced fee or 
charge under Articles 3 to 10 shall inform the Agency thereof at the time of 
the submission of the registration, update of registration, request, 
notification, application, review report or appeal giving rise to the payment 
of the fee. 
(2) A natural or legal person that claims to be entitled to the fee waiver 
under Article 74(2) of Regulation (EC) No 1907/2006 shall inform the 
Agency thereof at the time of the submission of the registration. 
(3) The Agency may request, at any time, evidence that the conditions for 
a reduction of fees or charges or for a fee waiver apply. 
(4) Where a natural or legal person that claims to be entitled to a 
reduction or a fee waiver cannot demonstrate that it is entitled to such a 
reduction or waiver, the Agency shall levy the full fee or charge as well as 
an administrative charge. Where a natural or legal person that has claimed 
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to be entitled to a reduction has already paid a reduced fee or charge, but 
cannot demonstrate that it is entitled to such a reduction, the Agency shall 
levy the balance of the full fee or charge as well as an administrative 
charge. Paragraphs 2, 3 and 5 of Article 11 shall apply mutatis mutandis. 
The relevant provisions of national law are as follows: 
Article 101 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law 
for the Federal Republic of Germany, ‘the GG’) of 23 May 1949 (BGBl. p.1), last 
amended by the Gesetz vom 19.12.2022 (Law of 19 December 2022 (BGBl. I 
p. 2478); ‘the GG’ 
(1) Extraordinary courts shall not be allowed. No one may be removed 
from the jurisdiction of his lawful judge. 
(2) Courts for particular fields of law may be established only by a law. 
Paragraph 17a of the Gerichtsverfassungsgesetz in der Fassung der 
Bekanntmachung vom 9. Mai 1975 (German Courts Constitution Law in the 
revised version published on 9 May 1975) (BGBl. I p. 1077), as last amended by 
Article 5 of the Gesetz vom 19. Dezember 2022 (Law of 19 December 2022) 
(BGBl. I p. 2606); ‘the GVG’ 
(1) If a court has declared with final and binding effect that the recourse 
taken to it is admissible, other courts shall be bound by this decision. 
(2) If the recourse taken is inadmissible, the court shall declare this 
proprio motu after hearing the parties and shall at the same time refer the 
legal dispute to the competent court of admissible recourse. If several courts 
are competent, the dispute shall be referred to the court to be selected by the 
claimant or applicant or, if no selection is made, to the court designated by 
the referring court. The order shall be binding upon the court to which the 
dispute has been referred in respect of the admissibility of the recourse. 
(3) If the recourse taken is admissible, the court may give a preliminary 
decision to this effect. It must give a preliminary decision if a party 
challenges the admissibility of the recourse. 
(4) The order pursuant to subparagraphs (2) and (3) may be given without 
an oral hearing. Reasons must be given therefor. The immediate complaint 
(sofortige Beschwerde) shall be available against the decision pursuant to 
the provisions of the respective applicable code of procedure. The 
participants shall only be entitled to lodge a complaint against a decision of 
a higher regional court at the highest federal court if this has been admitted 
in the decision. The complaint must be admitted if the legal issue concerned 
is of fundamental importance or if the court deviates from a decision of one 
of the highest federal courts or from a decision of the Joint Panel of the 
Highest Federal Courts (Gemeinsamer Senat der obersten Gerichtshöfe des 
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Bundes). The highest federal court shall be bound by the admission of the 
complaint. 
(5) The court that rules on an appellate remedy against a decision by the 
court seized of the case shall not review whether the recourse taken was 
admissible. 
(6) Subparagraphs (1) to (5) shall apply accordingly to adjudicating 
bodies with jurisdiction over civil disputes, family matters and non-
contentious matters in relation to each other. 
Paragraph 40 of the Verwaltungsgerichtsordnung in der Fassung der 
Bekanntmachung vom 19. März 1991 (German Code of Administrative Court 
Procedure in the version published on 19 March 1991) (BGBl. I p. 686), most 
recently amended by Paragraph 1 of the Gesetz vom 14. März 2023 (Law of 
14 March 2023) (BGBl. 2023 I No. 71); ‘the VwGO’ 
(1) Recourse to the administrative courts shall be available in all public-
law disputes of a non-constitutional nature in so far as the disputes are not 
explicitly allocated to another court by a federal statute; public-law disputes 
in the field of Land (federal state) law may also be assigned to another court 
by a Land statute. 
(2) Recourse shall be available to the ordinary courts for property claims 
from sacrifice for the public good and from public-law deposit, as well as 
for compensation claims from the violation of public-law obligations which 
are not based on a public-law contract; this shall not apply to disputes 
regarding the existence and amount of a compensation claim in the context 
of the second sentence of Article 14(1) of the Basic Law. The special 
provisions of civil service law, as well as those on legal recourse to 
compensate for property disadvantages for withdrawal of unlawful 
administrative acts, shall remain unaffected. 
Paragraph 167 of the VwGO 
(1) Unless the present Law provides otherwise, Book Eight of the 
Zivilprozeßordnung [German Code of Civil Procedure, ‘the ZPO’] shall 
apply mutatis mutandis to enforcement. The enforcement court shall be the 
court of first instance. 
(2) Judgments for rescissory actions and actions to compel the 
performance of an administrative act may be declared provisionally 
enforceable in respect of the costs only. 
Paragraph 168 of the VwGO 
(1) Enforcement shall be effected on the basis of 
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1. final and provisionally enforceable court rulings, 
2. provisional injunctions, 
3. court settlements, 
4. cost-setting orders, 
5. the arbitration rulings of public-law arbitration tribunals that have 
been declared enforceable in so far as the ruling on the declaration of 
enforceability has been declared final or provisionally enforceable. 
(2) For the purposes of enforcement, those concerned may be granted copies of 
the judgment at their request without the facts and without reasoning for the 
ruling, the effect of service of which shall be equivalent to the service of a 
complete judgment. 
Paragraph 173 of the VwGO 
Unless this Law contains provisions with regard to the proceedings, the German 
Courts Constitution Law and the German Code of Civil Procedure, including 
Paragraph 278(5) and Paragraph 278a, shall apply mutatis mutandis if the 
fundamental differences between the two types of procedure do not rule this out; 
Book 6 of the German Code of Civil Procedure shall not be applied. The 
provisions of the Seventeenth Title of the German Courts Constitution Law shall 
be applied mutatis mutandis subject to the proviso that the Higher Regional Court 
shall be substituted by the Higher Administrative Court, the Federal Court of 
Justice shall be substituted by the Federal Administrative Court and the German 
Code of Civil Procedure shall be substituted by the German Code of 
Administrative Court Procedure. The court within the meaning of 
Paragraph 1062 of the German Code of Civil Procedure shall be the 
administrative court with jurisdiction; the court within the meaning of 
Paragraph 1065 of the German Code of Civil Procedure shall be the Higher 
Administrative Court with jurisdiction. 
Paragraph 753 of the Zivilprozessordnung in der Fassung der Bekanntmachung 
vom 5. Dezember 2005 (German Code of Civil Procedure as published on 
5 December 2005) (BGBl. I p. 3202; 2006 I p. 431; 2007 I p. 1781), last amended 
by Paragraph 19 of the Gesetz vom 22. Februar 2023 (Law of 22 February 2023) 
(BGBl. 2023 I No 51); ‘the ZPO’ 
(1) Unless the compulsory enforcement is assigned to the courts, it will be 
implemented by bailiffs who are to effect it on behalf of the creditor. 
(2) The creditor may avail himself of the assistance of the court registry in 
charging a bailiff with the task of compulsory enforcement. The court-
appointed bailiffs charged with the task by the court registry shall be 
deemed to have been charged by the creditor. 
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(3) The Federal Ministry of Justice and Consumer Protection is 
authorised to introduce forms, use of which shall be mandatory, for 
charging the bailiff with his task; such forms being subject to approval by 
the Bundesrat [upper house of the German parliament] and being made by 
regulation. Special forms may be provided for instances in which 
instructions are submitted electronically. 
(4) Applications and declarations by the parties for which written form is 
required, as well as information, statements, expert opinions, translations 
and declarations of third parties for which written form is required, may be 
submitted as an electronic document to the bailiff. Paragraph 130a, as well 
as regulations issued on the basis of that paragraph, and Paragraph 298 
shall apply mutatis mutandis to electronic documents. The Federal 
Government may, in the regulation provided for under the second sentence 
of Paragraph 130a(2), specify special technical framework conditions for 
the transmission and processing of electronic documents in compulsory 
enforcement proceedings implemented by bailiffs. 
(5) Paragraph 130d applies mutatis mutandis. 
Paragraph 764 of the ZPO 
(1) Ordering enforcement measures as assigned to the courts, and the 
assistance with such measures, is the responsibility of the local courts 
(Amtsgerichte) as the courts responsible for enforcement. 
(2) Unless another local court is designated by law, the local court 
responsible for enforcement shall be the local court for the district in which 
the enforcement proceedings are to be performed or have been performed. 
(3) The decisions of the enforcement court are issued by a court order. 
Notice on jurisdiction to issue an order for enforcement in respect of decisions of 
institutions of the European Economic Community and of the European Atomic 
Energy Community of 3 February 1961, Bundesgesetzblatt, 1961, Part II, p. 50; 
‘the notice of 3 February 1961’ 
Issuance of the order for enforcement provided for in the second paragraph 
of Article 192 of the Treaty establishing the European Economic Community 
of 25 March 1957 […] (Bundesgesetzblatt II, p. 753, 1014) is the 
responsibility of the Federal Minister of Justice. 
III. 
1. The decision of the Administrative Court depends on the interpretation of EU 
law, particularly Article 94 of Regulation (EC) No 1907/2006 and Article 299 
TFEU. Before a decision on the action is taken, the proceedings must therefore be 
stayed and a preliminary ruling obtained from the Court of Justice of the European 
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Union pursuant to point (b) of the first paragraph, and the second paragraph, of 
Article 267 TFEU. 
(a) The first question referred for a preliminary ruling 
By its first question, the referring court seeks clarification as to whether recourse 
to the EU courts is available when a European agency seeks enforcement of a 
payment obligation on the basis of an unappealable decision. 
A German court before which an action has been brought may rule on the 
substance of a case, and thus on the merits of an action, only if recourse to the 
relevant jurisdiction is available and the other preconditions for a decision on the 
substance are satisfied. There are five independent jurisdictions in Germany: the 
ordinary jurisdiction with civil and criminal jurisdiction, labour jurisdiction, social 
jurisdiction, tax jurisdiction and administrative jurisdiction. 
The court seised must, of its own motion, examine the admissibility of the 
recourse used. If recourse is made to the administrative courts, even though such 
recourse is not available under Paragraph 40 of the VwGO and the special 
provisions imposing or displacing allocation of a dispute to the administrative 
jurisdiction, then the administrative court seised must, in accordance with 
Paragraph 17a(2) of the GVG, refer the dispute to the court that has jurisdiction 
for it at first instance. The court to which the case has been referred may neither 
refer the case back to the court that made the referral, nor refer the case onward to 
a court with jurisdiction for another mode of recourse. 
According to the first sentence of Paragraph 17a(4) of the GVG, the referral is to 
be made by means of a court order. Under the third sentence of Paragraph 17a(2) 
of the GVG, the referral order is to be binding upon the court to which the dispute 
has been referred in respect of the admissibility of the recourse. 
Exceptionally, the binding effect of a referral order does not apply in cases of 
serious and manifest illegality or manifest error. This would be the case if the 
referral is based on a disregard of fundamental procedural principles or on 
arbitrary considerations. Such arbitrariness would be present if the legal situation 
were to be blatantly misjudged and the adopted view devoid of any objective 
reason, to the effect that the referral departs in an unacceptable manner from the 
constitutional principle of the lawful judge, as provided for under the second 
sentence of Article 101(1) of the Basic Law. 
It is therefore for the referring court to determine whether recourse to the 
administrative courts is available in the present case. Administrative recourse is 
available if either a special provision is relevant that provides for that legal 
consequence (legislative provision allocating the dispute concerned to the 
administrative jurisdiction (aufdrängende Sonderzuweisung)), or if the 
requirements of the general rule laid down in the first sentence of Paragraph 40(1) 
of the VwGO are satisfied and the dispute is not expressly allocated to another 
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jurisdiction (legislative provision allocating the dispute concerned to a jurisdiction 
other than the administrative jurisdiction (abdrängende Sonderzuweisung)). 
According to the first sentence of Paragraph 40(1) of the VwGO, recourse to the 
administrative courts is available in all public-law disputes of a non-constitutional 
nature in so far as the disputes are not explicitly allocated to another court by 
federal law or Land (federal state) law. 
The referring court considers that the relevant connecting factor for the purposes 
of assessing whether administrative recourse is available is the nature of the legal 
relationship alleged in the applicant’s statement of facts upon which the cause of 
action is based. The legal relationship is to be determined on the basis of the 
applicant’s claim and the facts presented in support of it. It is therefore necessary 
to refer to the subject matter of the dispute, that is to say, to the judicial claim, 
which is more particularly defined by the actually existing circumstances (cause 
of action) presented in support of the claim. 
In the present case, the applicant is seeking payment under Regulation (EC) 
No 340/2008 for an administrative charge in the amount of EUR 9,950.00, which 
is payable and incontestable. The applicant’s claim therefore seeks enforcement of 
the payment obligation under the law governing enforcement. 
The question of whether recourse to the administrative courts is available in 
enforcement cases depends on the origin of the enforceable act. The substantive 
nature of the claim to be enforced is irrelevant since the subject matter of the 
enforcement proceedings no longer concerns a finding as to the existence of a 
substantive right, but rather its enforcement through the exercise of governmental 
powers. 
The jurisdiction of the administrative courts to adjudicate on the enforcement 
proceedings is exclusively determined by Paragraph 167 of the VwGO, which, as 
lex specialis, displaces the general rule laid down in the first sentence of 
Paragraph 40(1) of the VwGO. According to prevailing opinion, it can be inferred 
from Paragraph 167 of the VwGO that that provision is intended to determine the 
mode of recourse. The special allocation provision laid down in Paragraph 167 of 
the VwGO presupposes an enforceable act issued in administrative proceedings in 
accordance with Paragraph 168(1) of the VwGO. In the opinion of the referring 
court, that precondition is not satisfied in the present case since the applicant is 
requiring payment from the defendant without any prior court proceedings. A 
court has not ruled upon the question as to whether or not a substantive claim for 
payment based on Regulation (EC) No. 340/2008 has in fact arisen. The applicant 
bases the claim for payment solely on its Decision SME (2013) 4439 of 
20 November 2013, which is now unappealable. 
It is possible that Article 94(1) of Regulation (EC) No [1907/2006] may constitute 
a legislative provision allocating the dispute concerned to a jurisdiction other than 
the administrative jurisdiction, with the consequence that administrative recourse 
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would not be available, and hence that the Administrative Court of Regensburg 
would not be permitted to rule on the action. 
Under Article 94(1) of Regulation (EC) No 1907/2006, an action may be brought 
before the EU courts in accordance with [what is now] Article 263 TFEU 
contesting a decision taken by the board of appeal or, in cases where no right of 
appeal lies before the board, by the agency. Decision SME (2013) 4439 of 
20 November 2013 is not a decision subject to appeal in accordance with 
Article 91(1) of Regulation (EC) No 1907/2006, since the agency’s decision is 
based on Article 13(4) of Regulation (EC) No 340/2008. 
According to the express wording of Article 94(1) of Regulation (EC) 
No 1907/2006, an action before the EU courts is admissible only if a decision of 
the agency is contested. An action to contest a decision within the meaning of that 
provision presupposes that an action is brought by a natural or legal person 
required to pay a charge. In the present case, however, it is the agency that is 
seeking judicial protection vis-à-vis the defendant as the party subject to the 
payment obligation. 
The applicant is of the opinion that, in such a situation, Article 94(1) of 
Regulation (EC) No 1907/2006 does not apply. According to the applicant’s 
submissions, it is true that Article 94 of Regulation (EC) No 1907/2006 provides 
for a legal remedy. However, that provision does not offer the applicant any 
possibility of bringing an action for compliance with the payment obligation. Nor 
would the applicant have the authority to enforce the decision against legal 
persons in Germany. 
On the other hand, the defendant is of the opinion that the EU courts have 
jurisdiction to adjudicate on the enforcement of measures under EU law. 
According to the defendant, the legal recourse is fully governed by Article 94(1) 
of Regulation (EC) No 1907/2006. No distinction should be drawn between 
setting an administrative charge and the enforcement of that charge. Such an 
artificial division could scarcely be possible, since Article 94(1) of Regulation 
(EC) No 1907/2006 is intended to achieve comprehensive control of the 
administrative action of the applicant as an EU authority. 
The referring court concurs with the defendant’s submissions and is of the opinion 
that recourse to the EU courts is available under Article 94(1) of Regulation (EC) 
No 1907/2006. Moreover, in addition to the argument advanced by the defendant, 
the fact that a public law measure – in this case in the form of a decision on the 
amount of the administrative charges – is carried out directly by an agency 
militates in favour of the EU courts having jurisdiction. There is consequently a 
case of direct implementation of EU law. Conversely, it is only in those cases 
where the administrative action under EU law is carried out by the national 
authorities (indirect implementation of EU law) that recourse to the German 
administrative courts is available; this is because a legal act of German public 
authority is involved. It therefore seems appropriate that public law decisions 
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taken by an agency, as an institution of the European Union, should be made 
subject to full review by the EU courts. 
Furthermore, the provision laid down in the fourth paragraph of Article 299 
TFEU – which provides that the Court of Justice of the European Union is to have 
exclusive jurisdiction with respect to the suspension of enforcement measures and 
disputes regarding the continued existence of the substantive claim – lends 
support to the argument that the EU courts have jurisdiction. In order to ensure 
uniform application of the law within the European Union, it is not only the 
suspension of enforcement but rather – with the exception of the second sentence 
of the fourth paragraph of Article 299 TFEU – the entire enforcement procedure 
that should be reviewable by the EU courts. 
In the event that the Court of Justice of the European Union answers the first 
question referred for a preliminary ruling to the effect that Article 94(1) of 
Regulation (EC) No 1907/2006 is to be interpreted as meaning that the 
enforceability of decisions of the agency may also form the subject of an action, 
the referring court requests an indication as to whether, or in what form, the 
pending administrative dispute is to be referred to the General Court of the 
European Union or the Court of Justice of the European Union. The national law 
contains only provisions on referrals to national courts of other jurisdictions. 
(b) The second question referred for a preliminary ruling 
In the event that the Court of Justice of the European Union answers the first 
question referred for a preliminary ruling in the negative, it is then necessary to 
clarify whether the agency’s decision is an enforceable act within the meaning of 
the first paragraph of Article 299 TFEU. 
According to the second paragraph of Article 299 TFEU, enforcement is to be 
governed by the rules of civil procedure in force in the State in the territory of 
which it is carried out. However, according to the wording of the first paragraph 
of Article 299 TFEU, that rule applies only to acts of the Council, the Commission 
and the European Central Bank which impose a pecuniary obligation. 
It is true that the first paragraph of Article 299 TFEU does not contain any 
limitation as to the nature of the acts, but applies to all acts which impose a 
pecuniary obligation (judgment of 16 July 2020, ADR Center SpA v European 
Commission, C-584/17, EU:C:2020:576, paragraph 51). However, as is clear from 
its wording, Article 299 TFEU applies only to payment orders issued by the 
Council, the Commission and the European Central Bank. The enforcement of 
payment orders issued by other European institutions, such as agencies, is not 
expressly covered. 
On account of the schematic position and the spirit and purpose of the first 
paragraph of Article 299 TFEU that provision could also be interpreted as 
meaning that the enforcement of payment orders issued by other European 
authorities is governed by the rules of civil procedure of the Member State 
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concerned (Opinion of the Advocate General at the hearing of 7 November 2019, 
ADR Center SpA v European Commission, C-584/17; EU:C:2019:941, 
paragraph 44). 
Moreover, the fact that neither Regulation No 1907/2006 nor Regulation (EC) 
No 340/2008 contain specific provisions on enforcement militates in favour of a 
broad interpretation of Article 299 TFEU, according to which payment orders 
issued by the agency would also be covered. It is true that, on closer inspection, 
the agency has the power to levy administrative charges and fees. However, it 
does not have the means to enforce unappealable decisions on administrative 
charges and fees. In order to give full effect to EU law, it is essential that the 
institutions of the European Union have the means to effect compulsory 
enforcement of the orders they have issued. 
In the absence of specific rules on enforcement in Regulations (EC) No 1907/2006 
and No 340/2008, it is necessary to refer back to the rule on enforcement under 
Article 299 TFEU. 
The first sentence of the second paragraph of Article 299 TFEU refers to the rules 
of civil procedure of the Member State in whose territory the enforcement is to 
take place. In the Federal Republic of Germany, enforcement provided for in civil 
proceedings is governed by the provisions of Book 8 of the ZPO (Paragraphs 704 
et seq. of the ZPO). 
In so far as Decision SME (2013) 4439 constitutes an enforceable act for the 
purposes of the first paragraph of Article 299 TFEU, the order for payment must 
have an enforcement order appended to it upon application by the party seeking 
enforcement – in this case the agency – that is to say, it must be declared 
enforceable. Under the second sentence of the second paragraph of Article 299 
TFEU, the order for enforcement is to be appended by the national authority 
designated by the government of each Member State and made known to the 
Commission and to the Court of Justice of the European Union. In the Federal 
Republic of Germany, the Federal Minister for Justice is responsible for this 
(Notice of 3 February 1961). Once the order for enforcement has been appended, 
the party seeking enforcement may bring an action directly before the authority 
that is competent under national law (third paragraph of Article 299 TFEU). In the 
Federal Republic of Germany, the competent enforcement body is the 
enforcement court provided for under Paragraph 764 of the ZPO or the bailiff 
provided for under Paragraph 753 of the ZPO. 
The applicability of Article 299 TFEU is also supported by the fact that the other 
conditions for enforcement are fulfilled. Only natural and legal persons can be 
regarded as addressees of an enforcement order within the meaning of Article 299 
TFEU. That condition is fulfilled in the case of the defendant, which is a legal 
person established under private law. 
REQUEST FOR A PRELIMINARY RULING OF 11. 4. 2023 – CASE C-256/23 
 
16  
Moreover, Article 299 TFEU presupposes an enforceable order to be an act within 
the meaning of Article 288 TFEU. Acts within the meaning of that provision 
encompass not only abstract and general legal acts of secondary EU law, such as 
regulations or directives, but also decisions. This includes, in particular, decisions 
specifying to whom they are addressed, as referred to in the second sentence of 
the fourth paragraph of Article 288 TFEU, if the decision is binding and has direct 
effect on the addressee. A decision is regarded as binding if a measure is intended 
and capable of having direct legal effect, that is, of conferring rights or imposing 
obligations on the addressee of a decision (judgment of 11 November 1981; 
60/81, International Business Machines Corporation v Commission of the 
European Communities, EU:C:1981:264, paragraph 9; judgment of 22. 6. 2000, 
C-147/96; Kingdom of the Netherlands v Commission of the European 
Communities, EU:C:2000:335, paragraph 25; Decision of 8 March 1991, Emerald 
Meats v Commission, C-66/91, EU:C:1991:110, paragraph 26). That condition is 
also fulfilled in the present case. The unappealable decision of the agency imposes 
a requirement on the defendant to pay an administrative charge. 
(c) The third question referred for a preliminary ruling 
By the third question referred for a preliminary ruling, the referring court seeks 
clarification as to whether the reference to the rules of civil procedure in force in 
the State in whose territory the enforcement is carried out is to be construed 
broadly. German civil procedure law governs not only the procedure required for 
a proper enforcement measure but also the competent enforcement body. In the 
Federal Republic of Germany, the competent enforcement bodies comprise the 
court responsible for enforcement (Paragraph [764] of the ZPO) or the bailiff 
(Paragraph [753] of the ZPO). If Article 299 TFEU were to be interpreted as 
referring not only to the procedure for implementation of the enforcement but also 
to the rules governing the competent enforcement body, then it is clear to which 
court the present dispute should be referred. 
2. The questions referred to the Court of Justice of the European Union for a 
preliminary ruling are relevant to the decision. 
In the provisional view of the referring court, there are many indications to 
suggest that recourse to the administrative courts is not available. If the Court of 
Justice of the European Union were to answer the first question referred for a 
preliminary ruling in the affirmative, recourse to the General Court of the 
European Union or to the Court of Justice of the European Union would be 
available, which would mean that the referring court would not be entitled to issue 
a decision on the merits. If, on the other hand, the Court of Justice of the European 
Union were to answer the second and third questions referred for a preliminary 
ruling in the affirmative, recourse to the ordinary courts would be available. 
If the applicant makes recourse to the administrative courts, even though this is 
not available under the provisions of Paragraph 40 of the VwGO and the special 
provisions imposing or displacing allocation of a dispute to the administrative 
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jurisdiction, the administrative court seised must refer the legal dispute to the 
competent court of another jurisdiction pursuant to the first sentence of 
Paragraph 173 of the VwGO, read in conjunction with the first sentence of 
Paragraph 17a(2) of the GVG. 
A referral can therefore be considered only once the questions referred for a 
preliminary ruling have been clarified. 
The decision is not subject to appeal (Paragraph 146(2) of the VwGO, by 
analogy). 
[…] 
[Signatures] 
For the accuracy and completeness of the copy: 
Regensburg, 14 April 2023 
[…]  
[note regarding official copies]