62020CC0581
OPINION OF ADVOCATE GENERAL
ATHANASIOS RANTOS
delivered on 9 September 2021 (
1
)
Case C‑581/20
Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad
v
TOTO SpA – Costruzioni Generali,
Vianini Lavori SpA
(Request for a preliminary ruling from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria))
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and recognition of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Concept of civil and commercial matters – Provisional, including protective, measures – Contract for the performance of public road building works)
1.
In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.
2.
Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.
3.
The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). That appeal requires a determination, inter alia other matters, of whether, in the light of Article 35 of Regulation (EU) No 1215/2012, (
2
) the Bulgarian courts have international jurisdiction to adopt the provisional, including protective, measures sought. (
3
)
4.
Unless I am mistaken, the Court of Justice has so far given one ruling on that article. (
4
) However, judgments given in the light of previous instruments (
5
) shed light on the referring court’s questions, without resolving them.
5.
In accordance with the instructions given by the Court, this Opinion will address only the second question referred for a preliminary ruling. The answer will require a detailed examination of the relationship between two courts of different Member States – the court seised of the proceedings as regards the substance and the court seised solely in relation to provisional, including protective, relief – in cross-border situations, in respect of which Article 35 seeks ‘to avoid causing loss to the parties as a result of the long delays inherent in any international proceedings.’ (
6
)
I. Legal framework
A.
Regulation No 1215/2012
6.
Recital 33 states:
‘Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, their free circulation should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State.’
7.
In accordance with Article 2:
‘For the purposes of this Regulation:
(a)
“judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.
For the purposes of Chapter III, “judgment” includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement;
…’
8.
Article 29, in the section headed ‘Lis pendens – related actions’, reads:
‘1.   Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2.   In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32.
3.   Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’
9.
In accordance with Article 35 (‘Provisional, including protective, measures’):
‘Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.’
10.
Pursuant to Article 36, in the section headed ‘Recognition’:
‘1.   A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
…’
11.
Article 42(2) stipulates:
‘For the purposes of enforcement in a Member State of a judgment given in another Member State ordering a provisional, including a protective, measure, the applicant shall provide the competent enforcement authority with:
(a)
a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
(b)
the certificate issued pursuant to Article 53, containing a description of the measure and certifying that:
(i)
the court has jurisdiction as to the substance of the matter;
(ii)
the judgment is enforceable in the Member State of origin; and
(c)
where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.’
12.
Article 45(1)(c) provides:
‘1.   On the application of any interested party, the recognition of a judgment shall be refused:
(c)
if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed.’
B.
National law. Grazhdanski Protsesualen Kodeks (
7
)
13.
Of relevance to this case are Article 18 (immunity of States); Articles 389 to 396 (adoption of provisional measures); Articles 397 to 403 (protective measures); and Articles 274 to 280 (appeals against orders).
14.
Given that my Opinion will focus solely on the interpretation of Article 35 of Regulation No 1215/12, it is not necessary to transcribe those articles.
II. Facts, disputes and questions referred for a preliminary ruling
15.
By a contract dated 30 July 2015, the Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad (‘Polish Public Treasury’) commissioned the undertakings TOTO SpA – Costruzioni Generali and Vianini Lavori SpA, acting as a consortium registered in Italy, to construct the S-5 Poznan-Wrocław expressway, section Poznan A2, Gluchovo-Wronczyn.
16.
The parties included in the contract a clause – clause 20.6 – allocating jurisdiction to settle disputes between them to the courts for the place where the contracting authority is domiciled (the Polish courts). (
8
)
17.
In that contract, guarantee Nos 02900100000348 and 02900100000818 were provided to secure, respectively, performance of the contract (
9
) and the possible payment of a ‘contractual penalty’ following completion of the works. (
10
) Both guarantees were provided by the Bulgarian insurance company Euroins AD and are governed by Polish substantive law.
18.
Both contractor companies brought actions for a negative declaration against the Polish State Treasury before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland). They sought ‘a declaration that the State Treasury … was not entitled to demand payment of the contractual penalty agreed, since the conditions for such payment are not met, and nor was the defendant entitled to a contractual penalty for the late performance of the contract as alleged by it.’ (
11
)
19.
In addition, the contractors requested the court ‘to adopt interim measures ordering the defendant to refrain, in particular, from making use of guarantee Nos 02900100000348 and 02900100000818 provided by the insurance company Euroins AD’. (
12
)
20.
By order of 7 June 2019, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) refused to adopt the provisional, including protective, measures sought. (
13
)
21.
On 31 July 2019, the contractors again applied for the adoption of those measures, this time before the Sofiyski gradski sad (Sofía City Court, Bulgaria), in support of the actions before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw).
22.
The application was rejected at first instance but granted on appeal by the Sofiyski apelativen sad (Court of Appeal, Sofía, Bulgaria). That court imposed, subject to the provision of a security, an attachment order against the receivable of the Polish State Treasury, consisting of guarantee Nos 02900100000348 and 02900100000818, provided in its favour by the insurance company Euroins AD.
23.
The Polish State Treasury appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). In that appeal, it also submitted a European order for payment in accordance with Regulation (EC) No 1896/2006, (
14
) form E. (
15
)
24.
The contractors, which had opposed the order using form F of Regulation No 1896/2006, submitted that form in the response to the appeal.
25.
Against that background, the Varhoven kasatsionen sad (Supreme Court of Cassation) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Article 1 of [Regulation No 1215/12] to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?
(2)
After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [Regulation No 1215/12] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?
(3)
If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [Regulation No 1215/12] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [Regulation No 1215/12] be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?’
III. Procedure before the Court of Justice
26.
The request for a preliminary ruling was received at the Registry of the Court on 5 November 2020. The Court refused to deal with the request under Article 105 of the Rules of Procedure of the Court of Justice.
27.
Written observations were lodged by TOTO – Costruzioni Generali and Vianini Lavori, the Republic of Poland and the European Commission. All those parties, together with the Polish State Treasury, participated in the hearing held on 15 July 2021.
IV. Analysis
28.
As I have already stated, my Opinion will be confined to the second question referred. That question essentially concerns the relationship between courts of different Member States before which consecutive applications are made for provisional, including protective, measures under Regulation No 1215/2012.
29.
In order to answer that question, it is necessary to interpret Article 35 of Regulation No 1215/2012, which will make it possible to determine whether a court (in this case, a Bulgarian court) not having jurisdiction as to the substance of the case may adopt provisional, including protective, measures when the court having jurisdiction as to the substance of the case (in this instance, a Polish court) has already ruled on an identical application.
30.
Before suggesting an answer to that question, I shall set out a number of general aspects of Regulation No 1215/2012 which will help to inform the debate.
A.
Preliminary considerations: provisional, including protective, relief in Regulation No 1215/2012
1. Rules on international jurisdiction and free movement of decisions concerning provisional, including protective, measures
31.
Regulation No 1215/2012 establishes two procedures for obtaining provisional, including protective, measures in disputes falling within its scope:
–
First, it assigns international jurisdiction to courts which, pursuant to Sections 1 to 6 of Chapter II, also have such jurisdiction to rule on proceedings as to the substance. (
16
) The jurisdiction of those courts is not dependent on the existence of a particular connection between the subject matter of the measure and the forum. (
17
) Moreover, subject to the reservation that I shall set out, a measure adopted by a court with jurisdiction as to the main proceedings benefits from the rules on recognition and enforcement laid down in Regulation No 1215/2012.
–
Second, Article 35 of that regulation provides that courts not having jurisdiction to adjudicate on the substance of a case may order provisional, including protective, measures in relation to that case.
32.
In the latter situation, the Court places certain conditions on the possibility that a court not having jurisdiction as to the substance may nevertheless have jurisdiction to rule on interim proceedings: (
18
)
–
The provisional or protective measures must be ‘intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case’. (
19
)
–
Measures which, owing to their effects, replace de facto the proceedings as to the substance, that is, which can be used to circumvent, at the stage of preparatory inquiries, the jurisdictional rules, may not be adopted. (
20
)
–
A real connecting link must exist between the court which does not have jurisdiction as to the substance and the measure sought. The granting of this type of measure ‘requires particular care … and detailed knowledge of the actual circumstances in which the measures sought are to take effect’. (
21
)
33.
Those constraints are due to the fact that Article 35 of Regulation No 1215/2021 confers on a party applying for provisional, including protective, measures an advantage capable of placing the opposing party at a disadvantage, since it constitutes an exception to the system of jurisdiction set up by the regulation. It must therefore be interpreted strictly. (
22
)
34.
Furthermore, by adding a further forum, Article 35 could also encourage forum-shopping strategies (
23
) and abuse. (
24
)
35.
Under Regulation No 1215/2012, the power of a court which adopts provisional, including protective, measures in accordance with Article 35 is also restricted as to their scope: the effects of such measures are confined to the territory of the Member State concerned. (
25
)
36.
It must be recalled, however, that the admissibility of provisional, including protective, measures ordered by a court other than that which is, or will be, seised (
26
) of the substance of the case meets specific practical needs relating to provisional and interim judicial protection, (
27
) which are easy to comprehend.
37.
By means of that provision, the party concerned is afforded the opportunity to obtain a provisional, including protective, measure in the Member State where the assets or person against whom that measure is to be enforced are located. This avoids the difficulties inherent in having to litigate abroad first and then obtain recognition of the judgment given in another jurisdiction second. (
28
)
38.
That opportunity is all the more necessary where the provisional, including protective, measures ordered ex parte by the court seised as to the substance (the adoption of which retains their surprise effect) are not permitted, in principle, (
29
) to circulate freely (
30
) between Member States pursuant to Regulation No 1215/2012. (
31
)
39.
The prohibition of the free circulation of measures of this kind is expressed through the definition of ‘judgment’ in the second subparagraph of Article 2(a) of Regulation No 1215/2012. In practice, it results in the requirement laid down in Article 42(2) of the regulation: the enforcement in one Member State of a provisional, including protective, measure ordered in another Member State by the court seised of the main proceedings is subject to presentation of the certificate referred to in Article 53. That certificate includes specific details which confirm the status of the court and that the defendant was summoned to appear or, failing that, was served with the measure.
2. Relationship between forums
40.
There is no formal hierarchy between the forums available to an applicant for preventive, including protective, relief, who may choose between forums. Therefore, situations involving multiple proceedings for provisional, including protective, relief are possible, in respect of which the legislature did not expressly provide for a particular solution.
(a) Multiple proceedings for provisional, including protective, relief
41.
Regulation No 1215/2012 includes a specific provision (Article 35) relating to provisional, including protective, measures. It could be said that, in this way, that provision supplements the inherent power of the court having jurisdiction as to the substance to adopt such measures. At the same time, it opens the door to identical proceedings before different courts, with the risk of irreconcilable decisions.
42.
The principle of priority which, in the section headed ‘Lis pendens – related actions’ of Regulation No 1215/2012, governs multiple proceedings between the same parties and involving the same cause of action, in accordance with Article 29 of the regulation, may, in my view, be applied to the interim stage of those proceedings. (
32
)
43.
In accordance with that principle, the court before which the second application is made must ‘of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.’ The court seised of the second application must decline jurisdiction in favour of the court first seised once that court declares that it has jurisdiction. (
33
)
44.
As I have explained, the co-existence of applications for provisional, including protective, measures before a court with jurisdiction as to the substance and another which does not have such jurisdiction (but which is seised pursuant to Article 35 of Regulation No 1215/2012) provides the party concerned with an option to avoid the delays that are usually associated with importing into one Member State a measure ordered in another.
45.
From that perspective, it could be described as paradoxical that a person applying for a provisional, including protective, measure before a second court specifically in order to avoid delays in the first court has to do so, pursuant to the rule on lis pendens, exclusively in the Member State of the main proceedings, simply because the application for that measure was made there in the first place. (
34
)
46.
As an alternative, it is conceivable that, for the purposes of provisional, including protective, measures, the general rule on lis pendens (Article 29 of Regulation No 1215/2012) could be disapplied and, if two irreconcilable judgments are delivered, that difficulty could be addressed when an adjudication is made a posteriori on their recognition and enforcement. (
35
)
47.
I believe, however, that that approach may not be compatible with Regulation No 1215/2012.
48.
Although the Court has not ruled on that point, it referred in negative terms to the ‘multiplication of the bases of jurisdiction in relation to one and the same legal relationship, which is contrary to the aims of the Convention’, with regard to Article 24 of the Brussels Convention. (
36
)
49.
Currently, suffice it to say that the exceptions to the lis pendens rule are set out in the regulation and none matches that described. (
37
) The proposed changes in that respect, which were put forward in relation to Article 35 of Regulation No 1215/2012, did not go on to be included in the text, which suggests that there is no special treatment of lis pendens with regard to applications for provisional, including protective, measures under the system in force. (
38
)
50.
In short, it is my view that the lis pendens rule in Article 29 of Regulation No 1215/2012 applies to applications for provisional, including protective, measures. Two consequences flow from that rule: (a) the court seised of the first application for interim relief has priority, once it has declared that it has jurisdiction; and (b) from that moment, the court seised of the second application for interim relief must decline jurisdiction in favour of the first court.
(b) Irreconcilability of provisional, including protective, measures ordered by different courts
51.
The Court addressed the situation where provisional, including protective, measures have been ordered by two courts (one with jurisdiction under Article 24 of the Brussels Convention and the other chosen by the parties to adjudicate on the substance) in the judgment in Italian Leather, (
39
) in relation to Article 27(3) of the Brussels Convention.
52.
In that judgment, the Court:
–
Clarified that irreconcilability which precludes the recognition of a foreign judgment lies in the effects of judgments and not in the existence of different legal frameworks in the Member States or the different assessment by the respective courts of the same requirement. (
40
)
–
Confirmed that irreconcilability occurs where, if the consequences of the judgments concerned were to take effect simultaneously in one Member State, the rule of law in that State would be disturbed. (
41
)
–
Maintained that, in those circumstances, and in view of the fact that the ground for refusal of recognition laid down in Article 27(3) of the Brussels Convention is mandatory, the court addressed must refuse to recognise the foreign judgment. (
42
)
53.
Since Article 27(3) of the Brussels Convention and the current Article 45(1)(c) of Regulation No 1215/2012 (
43
) are identical, it is possible to state that the same approach is required under the latter article.
B.
Reply to the second question referred
54.
The referring court’s uncertainties underlying its second question, and the parties’ submissions in that respect, are based on a number of grounds which I shall examine in the following order:
–
First, I shall deal with the effect of the choice of jurisdiction clause in the contract in favour of the Polish courts;
–
Next, I shall examine the real connecting link between the measures sought and Bulgarian territory;
–
Finally, I shall state my view on the relevance before the Bulgarian court of the Polish judgment refusing to order provisional, including protective, measures.
1. The choice of jurisdiction clause: is it an impediment to the adoption of measures by the Bulgarian courts?
55.
The jurisdiction of the court seised of the main proceedings to adopt provisional, including protective, measures is not dependent on a special relationship between the subject matter of the measure and the forum; it is sufficient if the conditions which, pursuant to Regulation No 1215/2012, justify the allocation of jurisdiction as to the substance of the matter, are satisfied.
56.
One of those conditions is that the parties have agreed on the choice of court having jurisdiction by means of a clause which confers exclusive jurisdiction pursuant to Article 25 of Regulation No 1215/2012.
57.
Since that is based on freedom of choice, it is legitimate to question whether any agreement conferring jurisdiction automatically applies to provisional, including protective, measures. Conversely, the question could be asked whether a choice of forum excludes, systematically, the right laid down in Article 35 of Regulation No 1215/2012.
58.
The Court has not yet dealt with that issue. The judgment in Italian Leather clarified, in any event, that the jurisdiction referred to in Article 35 can co-exist with that of a different court chosen by the parties to give a definitive ruling on the dispute.
59.
In my opinion, the parties may (at least, I can find no reasons which would prevent this), by agreement, accept or derogate from international jurisdiction in respect of interim relief if they are in a situation covered by Regulation No 1215/2012. Which disputes are covered by the choice of forum agreement and which are not is a question of interpretation of the agreement concluded between the parties.
60.
Naturally, it is advisable for the parties to state expressly their intention that the clause should also apply to interim relief. In the absence of clear intent, it could be presumed (
44
) that a choice of forum clause drafted in general terms extends the jurisdiction chosen to the adoption of provisional, including protective, measures.
61.
However, that approach does not apply to the exclusion of access to any court of another Member State other than that agreed: (
45
) waiver of the benefit of Article 35 of Regulation No 1215/2012 must not be presumed.
62.
In this case, the parties included in their contract a clause which, in general terms, designated the Polish courts as having jurisdiction to adjudicate on any disputes between them, since Poland is where the contracting authority is established. (
46
)
63.
The referring court does not cast doubt on the exclusive jurisdiction of the Polish courts as to the substance of the case; it does question, however, whether that jurisdiction is also exclusive in matters of interim relief.
64.
The observations of the Polish Government and the contractor companies disagree as to the scope of the choice of forum in the contract. (
47
) For my part, I agree with the Commission that, whether or not that choice covers protective measures, thereby excluding any other jurisdiction, is a matter which must be determined by the referring court. (
48
)
65.
In that context, it must be borne in mind that, to ensure foreseeability for the parties, ‘a jurisdiction clause can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into …’ (
49
)
66.
Therefore, a jurisdiction clause will not apply to ‘litigation [that the undertaking which suffered the loss could not reasonably foresee] at the time that it agreed to the jurisdiction clause’. (
50
)
67.
Without prejudice to the fact that, as I have stated, the decision falls to the referring court, I believe that the parties which signed up to the clause agreed in this case could have reasonably foreseen that one of them, if the situation arose, would apply for a provisional, including protective, measure to oppose enforcement of the guarantees. Disagreements regarding the enforcement of guarantees by contracting authorities are not uncommon in the sphere of public contracts.
2. A real connecting link
68.
If the jurisdiction clause is found not to take effect in relation to interim protection, thereby negating the exclusive jurisdiction of the Polish courts, such a finding would still not result directly in confirmation of the jurisdiction of the Bulgarian courts as the courts to be seised in accordance with Article 35 of Regulation No 1215/2012.
69.
In those circumstances, the jurisdiction of the Bulgarian courts would be dependent, first, on the wording of the national rules in that regard. There would also have to be a real connection between the subject matter of the provisional, including protective, measure and the territorial jurisdiction of the Member State (Bulgaria).
70.
Questions have been raised concerning the existence of a real connecting link in this dispute, for two reasons:
–
the moveable nature of the assets situated on Bulgarian territory in respect of which the measure is to be enforced;
–
effective payment of the contested guarantee must be made by the Polish State Treasury on Polish territory, in connection with irregularities linked to the performance of a works contract concluded and performed in Poland. (
51
)
71.
The requirement that there must be a real connecting link is directly related to the rationale for Article 35 of Regulation 1215/2012, which is that the measure is ordered and enforced in the same Member State. Therefore, the real connecting link is effectively given concrete expression in the assets to which the provisional, including protective, measure relates.
72.
The place of payment of the guarantee itself is, however, immaterial.
73.
In these proceedings, as stated above, the provisional, including protective, measures were intended to secure claims for a declaration that the Polish State Treasury is not entitled receive payment of the sums guaranteed. In implementation of those measures, the Bulgarian appellate court ordered the attachment of the Polish contracting authority’s receivable against the Bulgarian insurer Euroins AD.
74.
Whether there is a real connection between the Bulgarian courts and the provisional, including protective, measures will ultimately depend on whether the receivable concerned is considered to be located in Bulgaria, (
52
) a matter which it falls to the Bulgarian court to establish.
3. The judgment given in Poland as an obstacle to the adoption of protective measures by the Bulgarian courts
75.
Must the Bulgarian court declare that it does not have jurisdiction to adopt the provisional, including protective, measure sought when an identical application (
53
) was made before the (Polish) court seised as to the substance of the main proceedings and that court refused to grant it?
76.
There are two approaches to the answer, depending on whether or not the decision of the Polish court refusing to adopt provisional, including protective, measures, is final. Since the nature of that decision cannot be deduced with complete certainty from the information provided, I shall deal with both possible situations.
(a) A final decision: possibility of recognition
77.
In the scheme of Regulation No 1215/2012, substantive or interim proceedings brought in a Member State can be terminated by invoking, using the appropriate procedural route, a final (
54
) judgment on those proceedings given in another Member State.
78.
I deduce from the parties’ observations that the force of res judicata (
55
) of the Polish decision is a matter of contention which must be settled by the referring court. In any event, rather than res judicata (a notion which is faced with difficulties when applied to interim decisions), I prefer to talk about the definitive, that is final and non-appealable, nature of a judgment.
79.
If it is confirmed that the interim decision is final in Poland, it will also be able to take effect in Bulgaria and preclude (as long as the factual circumstances are the same) (
56
) the adoption of another measure having the same subject matter, parties and cause of action.
80.
The Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) also asks about the time when the normative consequences of the existence of a foreign judgment must be drawn. In particular, that court asks whether it must declare that it does not have jurisdiction as soon as evidence of that judgment is produced.
81.
In principle, the answer is in the affirmative. Pursuant to Article 36(1) of Regulation No 1215/2012, no special procedure is required for recognition of a judgment of one Member State in another Member State. Anyone relying on such a judgment must, however, satisfy the procedural conditions laid down in Article 37, by producing an authenticated copy of the judgment and the certificate referred to in Article 53, which, according to the wording of the regulation, is essential. (
57
) The court or authority before which the foreign judgment is invoked may also request a translation or transliteration, as provided for in Article 37(2).
82.
It is for the party who is negatively affected by recognition of a judgment which has already been given to apply for refusal of recognition on any of the grounds laid down in Article 45, if it considers that appropriate. That application may be dealt with as an incidental question, under Article 36(3) of the regulation.
83.
Article 45(1)(c) cannot be relied on in that context: in the circumstances of the case, no measure having effects that are irreconcilable with those of the Polish judgment exists yet in Bulgaria, and therefore the argument against recognition of that judgment would not succeed.
(b) Judgments that are not final: the lis pendens rule
84.
If the Polish judgment is subject to appeal in Poland, it will be necessary to conclude, for the purposes of Regulation No 1215/2012, that the proceedings relating to protective measures are still pending in that country.
85.
In that connection, the interested party can certainly apply for recognition of the measure in Bulgaria. (
58
) However, the fact that that measure is still open to appeal may make such an application premature. The regulation permits the court addressed to suspend recognition of a foreign judgment if that judgment is challenged in the Member State of origin. (
59
)
86.
Since an identical and later application for protective relief is pending in Bulgaria, the lis pendens rule, which imposes ex officio obligations on the court seised second, is, to my mind, more appropriate.
87.
The document evidencing the Polish decision has (or may have, if it satisfies the conditions laid down by the applicable law) (
60
) probative force as regards the central elements of Article 29 of Regulation No 1215/2012:
–
it can be used to examine whether the parties, the subject matter and the cause of action are identical in the two sets of proceedings;
–
it establishes the date on which the application was made before the first court;
–
it confirms that the first court considered that it had jurisdiction to order or refuse the provisional, including protective, measure. (
61
)
88.
If, having examined those points, it is confirmed that the Polish court was seised of the proceedings first and that the threefold identity of subject matter, parties and cause of action exists, the Bulgarian court will have to decline jurisdiction in accordance with Article 29(1) of Regulation No 1215/2012.
V. Conclusion
89.
In the light of the foregoing considerations, I propose that the Court of Justice reply as follows to the second question referred for a preliminary ruling by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria):
(1)
Article 35 of 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 must be interpreted as meaning that the court before which an application for provisional, including protective, measures is pending must decline jurisdiction to order those measures if: (a) the court of another Member State which is seised as to the substance of the case has given a final ruling on such measures; (b) the interested party relies on that final ruling, producing the documents required by Regulation No 1215/2012 for recognition of the ruling in the Member State where the proceedings are still pending; and (c) the applications before both courts have the same subject matter and the same cause of action between the same parties.
(2)
If the ruling adopted by the court having jurisdiction as to the substance of the case is not yet final, the court seised second pursuant to Article 35 of Regulation No 1215/2012, before which the application for provisional, including protective, measures is pending on the same basis, with the same subject matter and between the same parties, must decline jurisdiction in favour of the court first seised, in accordance with Article 29(3) of Regulation No 1215/2012.
(
1
)	Original language: French.
(
2
)	Regulation 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 (OJ 2012 L 351, p. 1).
(
3
)	I am using the terms ‘provisional, including protective, measures’ as this is the term used in Regulation No 1215/2012. In reality, it is necessary to determine the category of measures to which the measure applied for belongs in each case.
(
4
)	Judgment of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638).
(
5
)	Article 24 of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32; consolidated version in OJ 1998 C 27, p. 1; ‘the Brussels Convention’) and Article 31 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘Regulation No 44/2001’). The wording of those provisions and of the current Article 35 is not identical; moreover, the legislature determined the rules on interim protection in other parts of Regulation No 1215/2012. However, the changes do not alter the usefulness of the Court’s earlier case-law as a point of reference for this case.
(
6
)	Judgment of 28 April 2005, St. Paul Dairy (C‑104/03, EU:C:2005:255; ‘judgment in St. Paul Dairy’), paragraph 12.
(
7
)	Code of Civil Procedure, Bulgaria; ‘the GPK’.
(
8
)	According to paragraph 2 of the Polish Government’s observations, the clause was worded as follows: ‘The court having jurisdiction for the seat of the contracting authority … shall have jurisdiction to adjudicate on any dispute which may arise in connection with performance [of the contract]’.
(
9
)	According to the summary of the order for reference, that guarantee was provided ‘for performance in conformity with the contract in the total amount of PLN 52294 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 9314 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.
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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.’
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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 4086 197.80 in respect of the principal, interest of PLN 3322 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.
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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.
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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.
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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.
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41
)	Ibid., paragraph 48.
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42
)	Ibid., point 2 of the operative part.
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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’.
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44
)	Logically, the presumption would be rebuttable.
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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).