Opinion of the Advocate General — ECLI:EU:C:2021:726
Date: 2021-09-09
Language of the case: Bulgarian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

summary of the order for reference, that guarantee was provided ‘for performance in conformity with the contract in the total amount of PLN 52 294 272.43; Annex 4 of 25 January 2019 stipulated that the guarantee was to be effective until 31 July 2019 in the aforementioned amount as a guarantee in case of non-performance or improper performance of the contract up to the maximum amount, and until 30 June 2024 as a guarantee for the execution of the construction works in conformity with the contract up to PLN 15 877.73.’ 10 According to the order for reference, that guarantee was provided ‘to secure payment of a contractual penalty of PLN 9 314 671.95 until 31 July 2019, which was intended to ensure the timely completion of the construction works in conformity with the contract.’ 11 Order for reference, paragraph 2. 12 Order for reference, paragraph 4. 13 According to paragraph 4 of the order for reference, the Polish court ‘considered that the applications for interim measures were unfounded owing to the lack of an interest in bringing proceedings, since there was no acceptable reason why the defendant would not sign a further annex and, moreover, the companies had not provided reasons justifying why it appeared likely that the refusal of interim relief would make it impossible or significantly more difficult to enforce a possible future decision taking account of the potential claims of the applicants. It also considered that the companies had not demonstrated that it was likely that the refusal of interim relief would cause irreparable damage or demonstrated the extent to which the possible contractual penalties could threaten their financial stability.’ 14 Regulation of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1). 15 The order for payment was issued in its favour against the insurance company Euroins AD for the amount of PLN 4 086 197.80 in respect of the principal, interest of PLN 3 322 112.05 and an amount of 76 405.75 PLN. 16 Its jurisdiction to adopt provisional or protective measures is not expressly stated but flows naturally from its familiarity with the case. This is implicitly referred to in recital 33 of Regulation No 1215/2012; see also judgment of 17 November 1998, Van Uden (C‑391/95, EU:C:1998:543; ‘judgment in Van Uden’), paragraph 19. 17 Judgment of 27 April 1999, Mietz (C‑99/96, EU:C:1999:202, paragraph 41). 18 The conditions were defined in the context of the interpretation of the corresponding provisions of the Brussels Convention and Regulation No 44/2001. 19 Judgments of 26 March 1992, Reichert and Kockler (C‑261/90, EU:C:1992:149, paragraph 34); in Van Uden, paragraph 37; and of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 50). 20 Judgments in Van Uden, paragraph 43 et seq.; of 27 April 1999, Mietz (C‑99/96, EU:C:1999:202, paragraph 42); and in St. Paul Dairy, paragraph 18. 21 Judgment in Van Uden, paragraph 38. 22 Judgment in St. Paul Dairy, paragraph 11. Article 35 is certainly an anomaly in the system: that is also shown by its position in a specific section, away from the jurisdictional rules in the strict sense, albeit still in Chapter II of Regulation No 1215/2012. 23 That concern was made clear by those who participated in the hearing, who were not in agreement about the true extent of the risk. The Commission, in particular, suggested that Article 35 contains self-limiting factors. That is true: the legislature, and the Court in its interpretations, have been restricting the scope of the provision. I cannot agree, however, with some of the Commission’s arguments, in particular the view that the measures which may be granted under Article 35 must be urgent. It is the case, first, that, in most instances, provisional, including protective, relief is sought as a matter of urgency, which de facto deprives the alleged limitation of effectiveness. Second, it is still uncertain whether or not urgency is a condition for the very application of Article 35; if it is, it must be construed autonomously. 24 Specific reference was made at the hearing to the risk of ‘excessive guarantees’, resulting from the adoption of a number of protective measures having the same purpose by two different courts which are not required to communicate with each other in that context (on the failed attempt to include a duty in that regard in Regulation No 1215/2012, see footnote 38 of this Opinion below). The regulation provides no solution for that situation beyond that which flows from application of the lis pendens rules or the rules relating to recognition. 25 Recital 33 and the second subparagraph of Article 2(a) of Regulation No 1215/2012. That limitation could already be sensed under the previous system, which required a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the State of the court seised of the matter. 26 This can be both the court currently seised of the substance and a court which will be so seised in the future, if the measure is ordered before the main proceedings commence. 27 Judgments of 21 May 1980, Denilauler (125/79, EU:C:1980:130, paragraphs 15 and 16), and of 26 March 1992, Reichert and Kockler (C‑261/90, EU:C:1992:149, paragraph 33). See also, with reference to the loss inherent in the long delays in international proceedings, the judgment in St. Paul Dairy, paragraph 12. 28 Difficulties which also exist in the simplified system of automatic recognition and enforcement without exequatur laid down in Regulation No 1215/2012: the person concerned must obtain, in the State of origin, the documents required from him in the State addressed; it cannot be ruled out a priori that the party against whom recognition and enforcement is sought applies for refusal under the relevant procedure or that the measure ordered in one Member State needs to be adapted in order to be enforced in another. 29 Free circulation of those measures will be possible only if the defendant has been summoned to appear or, if not, has been served with the ruling containing the measure before it is enforced. 30 According to recital 33, the limitation applies for the purposes of enforcement and also recognition. 31 According to recital 33, they may, however, circulate freely if national law so permits. 32 I am aware that uncertainties exist regarding a mechanical application of Article 29 in relation to provisional, including protective, measures, for reasons which vary according to the characteristics of the situation involving two sets of proceedings. 33 The temporal priority rule is reversed, by way of exception, if there is an exclusive choice of forum: see Article 31(2) and (3). In the present case, the first application for protective measures was made before the Polish court, which was chosen by the parties to the contract for resolving their differences. 34 Not everyone is persuaded by that argument. The proposal in the Report on the Application of Regulation Brussels I in the Member States (Study JLS/C4/2005/3), drawn up at the request of the Commission, was to grant priority to the court with jurisdiction as to the substance in any event, in view of its greater familiarity with the case: see paragraph 777. That is the approach taken in Article 15 of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ 2019 L 178, p. 1), which has no equivalent in any other instrument. 35 This has been proposed by some legal commentators: see Eichel, F., ‘Art. 35 Brüssel Ia-VO’, in Wieczorek/Schütze, Zivilprozessordnung und Nebengesetze, Band 13/2, 4th ed., 2019, paragraph 83, with other references. 36 Judgment in St. Paul Dairy, paragraph 20. 37 It should also be recalled that the argument relating to the excessive duration of proceedings, as a basis for disapplying (the then) Article 21 of the Brussels Convention, was rejected by the Court in the judgment of 9 December 2003, Gasser (C‑116/02, EU:C:2003:657). 38 See the Report on the Application of Regulation Brussels I in the Member States (Study JLS/C4/2005/3), cited in footnote 34. The Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM(2010) 748 final, in favour of communication between courts with a view to coordination of proceedings, was not successful either. 39 Judgment of 6 June 2002 (C‑80/00, EU:C:2002:342; ‘judgment in Italian Leather’). 40 Ibid., paragraph 44. 41 Ibid., paragraph 48. 42 Ibid., point 2 of the operative part. 43 ‘… the recognition of a judgment shall be refused … if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed’. 44 Logically, the presumption would be rebuttable. 45 In the light of its consequences; and any measure which cannot be enforced in the Member State of the chosen court is subject to recognition and enforcement. On that point, see footnote 28 of this Opinion above. 46 See point 16 of this Opinion. I assume that the Polish State Treasury challenged the jurisdiction of the Bulgarian courts relying on that clause. 47 Paragraph 7 et seq., in particular paragraph 11, of the observations of the Republic of Poland and paragraphs 28 and 29 of the observations of TOTO – Costruzioni Generali and Vianini Lavori. 48 Paragraph 19 of the Commission’s written observations. See, inter alia, judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 67). 49 By analogy, judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 68). 50 Ibid., paragraph 70. 51 Observations of the Republic of Poland, paragraph 36. 52 As an intangible asset, a debt is not physically situated anywhere; its location can be determined by reference to the book entry by which it is represented, or through a legal fiction. 53 The referring court raises no objection based on the alleged absence of identity or a change of circumstances, and I shall therefore not examine that point in detail. 54 On the recognition of a foreign judgment which has not yet become final, see point 85 of this Opinion. 55 The order for reference and the parties’ observations refer to res judicata. 56 I must stress that the subject matter, parties and cause of action are required to be identical; if that is not the case (for example, because facts have arisen subsequently which create significant differences vis-à-vis the original situation), there is nothing to prevent a fresh application for provisional, including protective, measures, possibly before a foreign court not having jurisdiction as to the substance. By their very nature, measures of that type are adopted or refused on the basis of the facts presented to the court at a specific moment. If those facts change, an initial refusal does not preclude the subsequent grant of an application. 57 The evidence appears to be specified, unlike under the previous rules: Article 55 of Regulation No 44/2001 provided for the possibility of dispensing with the certificate in Annex V to that regulation or of replacing it with equivalent documents. It is debatable whether the particulars required by the current Article 42 must be included, because, according to the wording, those particulars are required only for enforcement of the measure; recital 33, on the other hand, refers to circulation that is also limited for the purposes of recognition; and the ‘judgment’ defined in Article 2 is so defined for the purposes of Chapter III as a whole. In any event, for the present case, the question may remain open. 58 Regulation No 1215/2012 does not make the recognition or enforcement of foreign judgments conditional on such judgments being final. 59 Article 38(a). 60 The national law of the State addressed, or the law laid down in a convention; Regulation No 1215/2012 does not govern this point. 61 For which purpose a formal declaration is not necessary: see judgment of 27 February 2014, Cartier parfums-lunettes and Axa Corporate Solutions assurances (C‑1/13, EU:C:2014:109).