Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 29 July 2019 (1)
Case C‑555/18
K.H.K.
v
B.A.C.,
E.E.K.
(Request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court, Bulgaria))
Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 655/2014 — European Account Preservation Order procedure — Concept of ‘authentic instrument’ — Order for payment of a debt
I.      Introduction
1.        According to the judgment in Denilauler, (2) delivered by the Court in 1980, provisional or protective measures that are granted ex parte are not eligible for the system of recognition and enforcement provided for by the Brussels Convention. (3) That case-law was subsequently codified in Regulation (EU) No 1215/2012. (4) The fact that provisional and protective measures were not covered by the system of recognition and enforcement that was unified at EU-law level was one of the reasons for which EU legislation on the enforcement of judgments delivered in payment proceedings was regarded by some as the Achilles heel of the European Civil Judicial Area. (5)
2.        Almost 34
years after the judgment in Denilauler, (6) in 2014, Regulation (EU) No 655/2014 (7) was adopted, by which the EU legislature introduced the European Account Preservation Order (‘Preservation Order’). A Preservation Order maintains the element of surprise over the debtor and is automatically recognised in the other Member States without the need for any special procedure. (8)
3.        By its request for a preliminary ruling, the referring court asks the Court of Justice to interpret, for the first time, Regulation No 655/2014.
4.        At the Court’s request, I shall confine myself in this Opinion to analysing the first of the three questions referred, by which the national court asks about the concept of ‘authentic instrument’ defined in Article 4(10) of Regulation No 655/2014 and, more specifically, whether or not an authentic instrument, within the meaning of the regulation, must be enforceable.
II.    Legal framework
A.      EU law
5.        Article 4(8) of Regulation No 655/2014 defines the concept of ‘judgment’ as meaning ‘any judgment given by a court of a Member State, whatever the judgment may be called, including a decision on the determination of costs or expenses by an officer of the court’. Article 4(10) of the regulation defines the concept of ‘authentic instrument’ as meaning ‘a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(a)      relates to the signature and the content of the instrument; and
(b)      has been established by a public authority or other authority empowered for that purpose’.
6.        Chapter 2 of the regulation, which is entitled ‘Procedure for obtaining a Preservation Order’, contains Article 5, headed ‘Availability’, which provides:
‘The Preservation Order shall be available to the creditor in the following situations:
(a)      before the creditor initiates proceedings in a Member State against the debtor on the substance of the matter, or at any stage during such proceedings up until the issuing of the judgment or the approval or conclusion of a court settlement;
(b)      after the creditor has obtained in a Member State a judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim.’
7.        Article 14(1) of Regulation No 655/2014 provides:
‘Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified.
Notwithstanding the first subparagraph, the creditor may make the request referred to in that subparagraph where the judgment, court settlement or authentic instrument obtained by the creditor is not yet enforceable and the amount to be preserved is substantial taking into account the relevant circumstances, and the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for account information because there is a risk that, without such information, the subsequent enforcement of the creditor’s claim against the debtor is likely to be jeopardised and that this could consequently lead to a substantial deterioration of the creditor’s financial situation.’
B.      Bulgarian law
8.        It is apparent from Article 47(1) of the Grazhdanski protsesualen kodeks (Bulgarian Code of Civil Procedure; ‘GPK’) that, where, for a period of 1 month, it has proved impossible to locate the defendant at the address indicated in the documents in the case file or to locate any other person who agrees to accept service, service may, in principle, be effected by affixing a notice. In accordance with Article 47(5) of the GPK, service by way of the affixing of a notice may result in service being deemed to have been effected even if the defendant has not actually been made aware of the documents.
9.        Chapter 37 of the GPK, which deals with the procedure for obtaining an order for payment, contains Article 410, entitled ‘Application for an order for payment’, which provides:
‘1.      An applicant may apply for an order for payment:
(1)      on the grounds of monetary claims or claims to fungible goods, provided the district court has jurisdiction to hear the application;
(2)      on the grounds of the delivery of movable property received by the debtor subject to return or encumbered with a lien or delivered by the debtor subject to transfer of ownership, provided the district court has jurisdiction to hear the application.
2.      (supplemented — DV No 86 of 2017) The application must request an enforcement order and must fulfil the requirements of Article 127(1) and (3) and Article 128 Nos 1 and 2. The application must give details of an account or some other payment method.’
10.      Pursuant to Article 415(1) and (5) of the GPK:
‘1.      The court shall notify the applicant that he may initiate proceedings to pursue his claim in the following cases:
(1)      the objection was lodged in time;
(2)      the order for payment was served on the debtor in accordance with Article 47(5);
(3)      the court dismissed the application for an order for payment.
…
5.      If the applicant fails to adduce proof that he initiated proceedings in time, the court shall annul the order for payment in part or in full, together with the enforcement order issued in accordance with Article 418.’
11.      In accordance with Article 416 of the GPK:
‘If the objection is not lodged in time or is withdrawn, or if the judgment by which the claim was acknowledged acquires the force of res judicata, the order for payment becomes enforceable. The court shall grant an enforcement order on the basis of the order for payment and make note of it on the order for payment.’
12.      Chapter 56 of the GPK, which transposed Regulation No 655/2014 into Bulgarian law, contains Article 618a, which provides:
‘1.      An application for a
[Preservation Order]
may be lodged before proceedings are initiated before the court of first instance with jurisdiction for the substance of the matter.
2.      An application for a [Preservation Order]
may be lodged before the court of first instance with jurisdiction after an authentic instrument within the meaning of Article 4(10) of Regulation (EU) No 655/2014 has been obtained.
3.      The applicant may request at any point during and pending completion of the court proceedings that the court before which the proceedings are pending grant a [Preservation Order]. If the application for a
[Preservation Order]
is lodged within the framework of an application to have a judgment set aside, the court of appeal has jurisdiction.
4.      An application for a
[Preservation Order] may be lodged after pronouncement of the judgment with the court seised of the substance of the matter at first instance or after approval of a court settlement.’
III. The facts of the case in the main proceedings
13.      The applicant lodged with the Sofiyski rayonen sad (Sofia District Court, Bulgaria) an application pursuant to Article 410 of the GPK for an order for payment against two debtors.
14.      On 5 April 2018, pursuant to Article 410 of the GPK, that court issued an order for payment. On 18 April 2018, copies of the order were sent to the debtors at their addresses in Sofia, as given by the applicant and as officially recorded in the national population registry.
15.      The debtors were not found at the addresses given and did not respond to the notices affixed to their door or letter box within a period of 2 weeks and so, in accordance with Bulgarian law, the notices were returned.
16.      By order of 2 August 2018, the Sofiyski rayonen sad (Sofia District Court) informed the applicant, in accordance with Article 415(1)(2) of the GPK, that he could lodge an application for a declaratory judgment acknowledging his claim against the debtors. That order was served on the applicant on 3 August 2018.
17.      Before that order was served on the applicant, the applicant lodged, on 2 August 2018, an application for a Preservation Order against the debtors’ bank accounts in Sweden.
18.      Then, on 2 August 2018, the Sofiyski rayonen sad (Sofia District Court) ordered that that application and its annexes be sent to the President of the Second Civil Division of the court with a view to the commencement of separate proceedings and the appointment of a judge-rapporteur, in accordance with Article 618a of the GPK. However, the President of the Second Civil Division referred the matter to the Third Civil Division, 155th Chamber, of the court — which is the referring court in this case — directing it to give a ruling and stating that the order issued pursuant to Article 410 of the GPK constituted an authentic instrument within the meaning Article 4(10) of Regulation No 655/2014 and that there was no need for separate proceedings to be commenced.
19.      The referring court does not share the opinion of the President of the Second Civil Division. It takes the view that an order under Article 410 of the GPK that has not become enforceable is not an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014 because, in accordance with Article 415(5) of the GPK, if the applicant fails to produce proof that he lodged his application within the time limit, the order must be annulled. The referring court observes that there is, in the present case, no enforceable order that might constitute an authentic instrument on the basis of which the court could, in the context of the procedure for obtaining an order for payment, issue a Preservation Order. That being so, a Preservation Order could be issued against the bank accounts only in the context of separate proceedings on the substance of the matter.
IV.    The questions referred for a preliminary ruling and the procedure before the Court
20.      It was in those circumstances that the Sofiyski rayonen sad (Sofia District Court) decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling:
‘1.      Is an order for payment of a monetary claim under Article 410 of the [GPK], which has not yet become enforceable, an authentic instrument within the meaning of Article 4(10) of Regulation [No 655/2014]?
2.      If an order for payment under Article 410 of the [GPK] is not an authentic instrument, must separate proceedings in accordance with Article 5(a) of [Regulation No 655/2014] be commenced by application, outside the proceedings under Article 410 of the [GPK]?
3.      If an order for payment under Article 410 of the [GPK] is an authentic instrument, must the court issue its decision within the time limit laid down in Article 18(1) of Regulation [No 655/2014] if a provision of national law provides that time ceases to run during judicial vacations?’
21.      The European Commission alone has submitted written observations to the Court. There was no hearing.
V.      Analysis
22.      By its first question, the referring court seeks to establish, in substance, whether an order for payment that is not enforceable, such as that at issue in the main proceedings, possesses the characteristics of an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014 and, consequently, whether the applicant has obtained an authentic instrument which requires the debtor to pay the claim, within the meaning of Article 5(b) of that regulation.
23.      By that question, the referring court seeks to resolve an internal conflict, akin to a negative conflict of jurisdiction, regarding the issue of a Protection Order. That conflict arose from the fact that the President of the Second Civil Division of the Sofiyski rayonen sad (Sofia District Court, Bulgaria) considered that the order issued pursuant to Article 410 of the GPK constituted an authentic instrument, and then directed the Third Civil Division, 155th Chamber, of the court to give a ruling on the application for a Protection Order, on the view that there was no need for separate proceedings to be commenced. By contrast, the President of the 155th Chamber takes the view that ‘there is, for the moment, no enforceable order that might constitute an authentic instrument’ on the basis of which the court could, in the context of the Bulgarian procedure for obtaining an order for payment, issue a Preservation Order.
24.      There are several aspects of the application of Bulgarian law that, in the present case, affect the legal position of the applicant and which remain unclear. I shall therefore need to consider issues that are not expressly mentioned in the request for a preliminary ruling in order to propose an answer that may be helpful to the referring court.
25.      Accordingly, in order to address the concerns of the referring court, I shall begin by making some general observations about the procedure for obtaining an order for payment under Bulgarian law, which is laid down in Article 410
et seq. of the GPK (points 26 to 31 below). I shall then make some remarks about the two premisses on which the first question appears to be based, the first being that the order for payment of 5 April 2018 has not been annulled (points 33 and 34 below) and the second being that, leaving aside the potentially relevant question of whether or not it is enforceable, an order for payment under Bulgarian law possesses the characteristics of an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014 (points 36 to 46 below). Finally, on the basis of all those considerations, I shall consider the relevance of the enforceability of the decision or instrument that the creditor has obtained within the scheme established by Regulation No 655/2014 (point 53
et seq. below).
A.      The procedure for obtaining an order for payment
26.      According to the explanations given by the referring court, the procedure for obtaining an order for payment, laid down in Article 410
et seq. of the GPK, is designed to establish the existence of a claim between specific individuals, the basis of that claim and its irrefutable nature. The procedure is optional: the creditor is not required to apply for an order for payment and may instead pursue his claim in ordinary proceedings.
27.      If the creditor chooses to make an application under Article 410 of the GPK, he must specify the basis of his claim and the amount claimed. On the other hand, he is not required to produce any documents whatsoever certifying the claim.
28.      The creditor cannot enforce his claim until the order for payment has become enforceable.
29.      Indeed, in order to become enforceable, an order for payment must have been served on the debtor and the debtor must not have lodged an objection on the basis of Article 414 of the GPK. In such case, in accordance with Article 416 of the GPK, the court will issue an enforcement order on the basis of the order for payment.
30.      On the other hand, if the debtor does lodge an objection, the court will inform the creditor, in accordance with Article 415(1) of the GPK, that he may lodge an application for a declaratory judgment acknowledging his claim within a period of 1 month, and that will give rise to separate proceedings in the context of which the court will give a ruling by way of a judicial decision. That decision, once it acquires the force of res judicata,  confirms the order for payment and an order for enforcement will be issued on the basis of the order for payment and the decision.
31.      Similarly, the court will inform the creditor that he may lodge an application for a declaratory judgment acknowledging his claim where service of an order for payment has not actually been effected but is deemed to have been effected in accordance with Article 47(5) of the GPK. In such case, the lodging of an application for a declaratory judgment acknowledging the claim will again give rise to separate proceedings, which will take the course that I have already described. However, if, as in the present case, the applicant fails to produce proof that he has lodged an application for a declaratory judgment acknowledging his claim, the court will, pursuant to Article 415(5) of the GPK, annul the order for payment.
32.      Before going any further, it is therefore necessary to determine whether or not the order for payment of 5 April 2018 was annulled. Indeed, if the order for payment was annulled in accordance with Article 415(5) of the GPK, it will be unnecessary, in my view, to pursue the question of whether it is an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014.
B.      An order for payment that is not followed up by an application for a declaratory judgment acknowledging the claim
33.      As I have just said, it is clear from the legal framework that has been set out by the national court that, where an order for payment is served in accordance with Article 47(5) of the GPK and, as in the case in the main proceedings, an application for a declaratory judgment acknowledging the claim is not subsequently brought by the creditor, the order for payment must be annulled on the basis of Article 415(5) of the GPK. In addition, according to legal theory, the order must be annulled because its legal existence must be brought to an end, even though it has produced no legal effects and is not enforceable. (9)
34.      Given that the first question referred for a preliminary ruling refers to an order for payment that has not yet become enforceable, that question may be understood in the sense that, as far as the referring court is concerned, the order for payment of 5 April 2018 has not been annulled. (10) Therefore, without wishing to comment on the consistency with Bulgarian law of the solution adopted by the national court, I must take it as established that the order for payment of 5 April 2018 has not been annulled.
35.      It remains to be considered at this point whether, leaving aside the fact that it is not yet enforceable, an order for payment such as that at issue in the main proceedings possesses the characteristics of an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014, which are expressly and indisputably established by that regulation.
C.      An order for payment as an authentic instrument in the context of Regulation No 655/2014
36.      It is clear from the request for a preliminary ruling that the position that an order for payment under Bulgarian law is an authentic instrument within the meaning of Regulation No 655/2014 may be traced back to the referral of the case in the main proceedings by the President of the Second Civil Division to the referring court. Indeed, in referring the case to the Third Civil Division, the President of the Second Civil Division took the view that an order issued pursuant to Article 410 of the GPK constituted an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014.
37.      On this point, the referring court merely states that, in its view, the observations of the President of the Second Civil Chamber ‘are not relevant’. It states, more specifically, that an order issued pursuant to Article 410 of the GPK that has not become enforceable does not constitute an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014 because it may be annulled (11) if no action for a declaratory judgment is brought within the prescribed period. I infer from that that, as far as the referring court is concerned, it is not the fact that the order for payment is not enforceable that precludes it from classification as an authentic instrument, but rather the fact that it is revocable. I must point out, however, that revocability is a characteristic of decisions rather than of authentic instruments.
38.      I too, for reasons other than the one relating to its unenforceability, have doubts about the characterisation of an order for payment as an authentic instrument within the meaning of Regulation No 655/2014.
39.      To reiterate, in order for a document to constitute an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014, it is necessary, first, for the document to be drawn up or registered in the Member State as an authentic instrument, secondly, for the instrument’s authenticity to be established by a public authority or other authority empowered for that purpose and, thirdly, for the authenticity of the instrument to relate to its signature and content.
40.      It is explained in legal theory that, in Bulgarian law, authentic instruments are covered by Article 179(1) of the GPK, in accordance with which official documents drawn up by an official within the scope of his duties, in the established form and under the established procedure, are proof of statements made and actions performed before him. (12)
41.      Moreover, in accordance with Article 618a(2) of the GPK, as it is explained in the order for reference, the Bulgarian courts are empowered to draw up authentic instruments. It would appear to me that prima facie an order for payment issued pursuant to Article 410 of the GPK possesses the first two characteristics of an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014.
42.      However, as the Commission appears to note, it is not clear how an order for payment issued pursuant to Article 410 of the GPK constitutes an instrument the authenticity of which relates to the content of the instrument, such authenticity being a concept of EU law requiring independent interpretation.
43.      Indeed, as I stated in point 27 above, when making an application under Article 410 of the GPK, the applicant is not required to produce any documents whatsoever certifying his claim; he is merely required to give a statement about the basis of his claim and the amount claimed. On the basis of that statement, the court will issue an order for payment which, amongst other things, will specify, as indicated in Article 412(6) and (8) of the GPK, the debt which the debtor is required to discharge and the specific time limit within which the debtor must satisfy the claim.
44.      It is clear from Article 411(2) of the GPK that the court will not issue an order for payment, inter alia, where the creditor’s claim does not fulfil the requirements of Article 410 of the GPK or is unlawful or contrary to accepted principles of morality. Nevertheless, the court’s examination does not extend and, in the absence of any documents from the creditor, cannot extend to the veracity of the debt which the debtor is to discharge.
45.      In the circumstances, it would appear doubtful that the authenticity of an order for payment should relate to the content thereof, given that that content, which leaves aside the merits of the claim, essentially consists in the obligation for the debtor to satisfy the claim. Consequently, I consider that an order for payment issued pursuant to Article 410 of the GPK cannot be regarded as an authentic instrument within the meaning of Regulation No 655/2014.
46.      Accordingly, it is for the referring court to ascertain whether the authenticity of an order for payment, under Bulgarian law, relates to its content and signature. If that is not the case, then, given that Regulation No 655/2014 mentions three types of decision or instrument that can form the basis of a Preservation Order, namely judgments, court settlements and authentic instruments, the referring court will have to consider whether an order for payment constitutes a judgment within the meaning of the regulation. Personally, I do not think it does.
D.      The implications of a finding that an order for payment under Bulgarian law is not an authentic instrument within the meaning of Regulation No 655/2014
47.      As I have just stated, an order for payment does not, under Bulgarian law, constitute an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014. That being so, in order to propose an answer that will be helpful to the referring court, I shall continue my analysis by outlining the system established by Regulation No 655/2014. That analysis will make clear that the requirement of enforceability applies unequivocally to all three types of decision or instrument that may form the basis of a Preservation Order.
48.      Moreover, what may be gleaned from an examination of one of the Commission’s arguments militates in favour of an approach that takes the system established by the regulation as a starting point.
49.      The Commission observes that concepts comparable to that of ‘authentic instrument’ may be found in other acts of EU private international law, in particular, Regulation (EC) No 805/2004, (13) Regulation (EC) No 4/2009 (14) and Regulation No 1215/2012, and also in the Brussels Convention and the Lugano Convention. (15) In its opinion, it is clear from each of those acts that the authentic instrument must be enforceable in the Member State of origin. Given that those acts establish an unequivocal concept of authentic instrument, it is appropriate, for reasons of a systemic nature, to construe the definition given in Article 4(10) of Regulation No 655/2014 as meaning that an instrument must be enforceable in order for it to be regarded as an authentic instrument.
50.      I nevertheless have doubts about the direct analogies which the Commission draws between Regulations Nos
805/2004, 4/2009 and 1215/2012, on the one hand, and Regulation No 655/2014, on the other, since each of those regulations pursues different objectives.
51.      The purpose of the European Enforcement Order created by Regulation No 805/2004 is to facilitate the satisfaction of claims directly by means of an enforcement procedure. Leaving aside protective and provisional measures, the same is true of the authentic instruments under Regulations Nos
4/2009 and 1215/2012. By contrast, the purpose of a Protection Order is to provide provisional protection of creditors’ claims and to ensure that possible future recovery, by means of an enforcement procedure, is not impeded or rendered more difficult. A Protection Order may therefore be particularly appropriate where the creditor is not yet in possession of an enforcement order and consequently cannot proceed with the enforcement of that order on the basis of the provisions of Regulations Nos
805/2004, 4/2009 and 1215/2012.
52.      Furthermore, as the Commission observes, Article 4(10) of Regulation No 655/2014, which contains the definition of the concept of ‘authentic instrument’ that I have set out in point 39 above, makes no mention of whether such an instrument must be enforceable or not. The same is true of Regulations Nos
805/2004, 4/2009 and 1215/2012, to which the Commission also refers. (16) On the other hand, the enforceability of authentic instruments plays a central role in the systems for the circulation of legal instruments established by those regulations. (17) Similarly, I am of the opinion that, in the present case, it is not sufficient merely to analyse the concepts of ‘judgment’, ‘court settlement’ and ‘authentic instrument’ without considering the system that is established by Regulation No 655/2014. The answer to the concerns of the referring court is to be found not outside that regulation but within in.
E.      The system established by Regulation No 655/2014 and the dichotomy between the different methods of proceeding that underlie the regulation
53.      Regulation No 655/2014 establishes a legal framework that lays down the detailed rules of the procedure for obtaining a Protection Order, for the issue of such an order and, in part, for the enforcement of such an order. Within that framework, following the wording of Article 5 of the regulation, the position of a creditor seeking a Protection Order after obtaining a decision or instrument (a judgment, court settlement or authentic instrument) is quite different from that of a creditor who seeks a Preservation Order before initiating proceedings on the substance of the matter or during such proceedings up until the issuing of the judgment or the approval or conclusion of a court settlement.
54.      Moreover, the dichotomy between the different methods of proceeding, which Article 5 of Regulation No 655/2014 points up, extends to other aspects. (18)
55.      It is clear from Article 6(1), (3) and (4) of Regulation No 655/2014, first of all, that, where the creditor has not yet obtained a decision or instrument, jurisdiction to issue a Preservation Order lies with the courts of the Member State which have jurisdiction to rule on the substance of the matter in accordance with the relevant rules of jurisdiction applicable. (19) Next, where the creditor has already obtained a judgment or a court settlement, jurisdiction to issue a Preservation Order for the claim specified in the judgment or court settlement lies with the courts of the Member State in which the judgment was issued or the court settlement was approved or concluded. Lastly, where the creditor has obtained an authentic instrument, jurisdiction to issue a Preservation Order for the claim specified in that instrument lies with the courts designated for that purpose in the Member State in which that instrument was drawn up.
56.      Next, Article 7(1) and (2) of Regulation No 655/2014 lays down the conditions for issuing a Preservation Order. Article 7(1) of the regulation makes it clear that the creditor must always submit sufficient evidence to satisfy the court that there is an urgent need for a protective measure in the form of a Preservation Order (periculum in mora). Article 7(2) of the regulation provides that, where the creditor has not yet obtained a decision or instrument requiring the debtor to pay his claim, he must also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim (fumus boni iuris).
57.      Finally, Article 12 of Regulation No 655/2014 concerns the security which the creditor is to provide in return for the protective effect of the Preservation Order. As Article 12(1) of the regulation makes clear, and as is stated in recital 18 of the regulation, where the creditor has not yet obtained a decision or instrument, the provision of security should be the rule. By contrast, in accordance with Article 12(2), where the creditor has already obtained a decision or instrument, it should be left to the court’s discretion whether it is appropriate for security to be provided.
58.      It follows from the foregoing that the conditions governing the issue of a Preservation Order are less stringent where the creditor is already in possession of a decision or instrument, albeit the provisions of Regulation No 655/2014 which I have cited do not specify whether the decision or instrument in question must be enforceable or not.
59.      Accordingly, the question that needs to be answered is not whether an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014, taken in isolation, must be enforceable, but whether the decision or instrument of which the creditor must be in possession in order for him to be regarded as having obtained a decision or instrument within the meaning of the provisions I have cited must be enforceable or not. Indeed, the concept of ‘authentic instrument’ and the concepts of ‘judgment’ and ‘court settlement’ must be interpreted in light of the system established by the regulation. That is illustrated by the second and third questions referred by the national court, which concern provisions of Regulation No 655/2014, namely Articles 5 and 18, which employ the same distinction. Moreover, it is clear from recital 14 of Regulation No 655/2014 that the appropriate balance between the interest of the creditor in obtaining a Preservation Order and the interest of the debtor in preventing abuse of such an order must be created by the conditions which govern the issue of Preservation Orders. Indeed, the way in which the concepts of ‘judgment’, ‘court settlement’ and ‘authentic instrument’ are interpreted is liable to affect that balance.
F.      Enforceable decisions and instruments within the scheme of Regulation No 655/2014
1.      What may be learned from the references in Regulation No 655/2014 to enforceable decisions or instruments and decisions or instruments that are not yet enforceable
60.      Following the reasoning that it is not sufficient merely to analyse the concept of ‘authentic instrument’ within the meaning of Article 4(10) of Regulation No 655/2014 without considering the other provisions of that regulation, the Commission argues that the requirement of enforceability may be inferred from the first and second subparagraphs of Article 14(1) of Regulation No 655/2014. According to the Commission, since this part of the regulation contains express provisions concerning authentic instruments that are not enforceable, it is difficult to imagine that, in other provisions of the regulation, the concept of ‘authentic instrument’ encompasses both enforceable authentic instruments and authentic instruments that are not enforceable.
61.      Leaving aside the conclusion which the Commission arrives at, I am not wholly convinced by its argument that it is immediately apparent from a comparison of the way in which the concept of ‘authentic instrument’ is used in Article 14(1) of Regulation No 655/2014 and the way in which it is used in other provisions of that regulation that an authentic instrument within the meaning of Article 4(10) of the regulation must necessarily be enforceable.
62.      Indeed Article 14(1) of Regulation No 655/2014 draws a clear distinction between the situation where the creditor has obtained an enforceable decision or instrument (a judgment, court settlement or authentic instrument) which requires the debtor to pay the creditor’s claim and the situation where the creditor has obtained a decision or instrument that is not yet enforceable. One could argue that an authentic instrument that is not yet enforceable, such as is mentioned in the second subparagraph of Article 14(1) of Regulation No 655/2014, is still an authentic instrument within the meaning of Article 4(10) of that regulation. Article 4 of the regulation, which is headed ‘Definitions’, lays down the terminological framework that applies to all of the provisions that follow. Consequently, in compliance with that framework, and in the interests of consistency, it would be correct to maintain that an instrument need not be enforceable in order for it to constitute an authentic instrument within the meaning of Article 4(10).
63.      That said, with regard to the obtaining of information about the debtor’s accounts, Article 14(1) of Regulation No 655/2014 imposes more stringent requirements where the creditor has not yet obtained an enforceable decision or instrument than those which apply where he has. Indeed, a creditor who has obtained a decision or instrument that is not yet enforceable must, inter alia, satisfy the court that there is an urgent need for account information because there is a risk that, without such information, the subsequent enforcement of his claim against the debtor is likely to be jeopardised, which could consequently lead to a substantial deterioration of his financial situation.
64.      It is true however that, in Article 14(1) of Regulation No 655/2014, the legislature drew a distinction between decisions and instruments that are enforceable and those that are not yet enforceable (as opposed to a distinction between the situation where the creditor has obtained a decision or instrument and the situation where he has not, as is drawn in other provisions of the regulation (20)) and that it did so in order to distinguish three different situations: the situation where the creditor has obtained an enforceable decision or instrument (the first subparagraph of Article 14(1) of Regulation No 655/2014), the situation where the creditor has obtained a decision or instrument that is not yet enforceable (the second subparagraph of Article 14(1) of that regulation) and, lastly, the situation where the creditor has not obtained a decision or instrument (outside Article 14(1) of that regulation). That might lead one to think, having regard to all of the provisions of Regulation No 655/2014, that being in possession of a decision or instrument that is not yet enforceable is not the equivalent of being in possession of no decision or instrument at all.
65.      However, in Article 14(1) of Regulation No 655/2014 it was necessary to distinguish between three situations, rather than two, so as to enable creditors in possession of a decision or instrument that is not yet enforceable to request information about the debtor’s accounts. Indeed, under the second subparagraph of Article 14(1) of Regulation No 655/2014, a creditor who has obtained a decision or instrument that is not yet enforceable may make such a request, whereas a creditor who has not obtained a decision or instrument has no such right. Moreover, as is clear from other provisions of the regulation, a creditor who is in possession of an enforceable decision or instrument is always in a privileged position, in that he is not required to satisfy the court that there is an urgent need to obtain information about the debtor’s accounts.
66.      I infer from the foregoing that, first, solely for the purposes of Article 14(1) of Regulation No 655/2014, the fact of being in possession of an unenforceable decision or instrument cannot be equated with the fact of being in possession of no decision or instrument at all. Secondly, the first and second subparagraphs of Article 14(1) of Regulation No 655/2014 follow the same logic as Article 7(1) and (2) of that regulation, for example, in which a distinction is drawn between the position of a creditor who has obtained a decision or instrument and that of a creditor who has not yet done so, the latter being subject to more stringent conditions for the issue of a Preservation Order.
67.      To sum up at this point, one could argue that, in order for a creditor to be regarded as having obtained a decision or instrument (a judgment, court settlement or authentic instrument) which requires the debtor to pay his claim, within the meaning of the provisions of Regulation No 655/2014, that decision or instrument must be enforceable in the Member State of origin. As I shall now explain, that view, which is shared by some academic legal writers, (21) is corroborated by what may be learned from other provisions of the regulation, namely Articles 7, 18 and 34 thereof.
2.      What may be learned from other provisions of Regulation No 655/2014
68.      As I explained in point 59 above, the way in which the various concepts of ‘judgment’, ‘court settlement’ and ‘authentic instrument’ are interpreted is liable to affect the balance between the interests of creditor and debtor. It is clear from Article 7 of Regulation No 655/2014 that, once a creditor has obtained a decision or instrument requiring the debtor to pay his claim, the court will no longer, when issuing a Preservation Order for the claim specified in the decision or instrument, consider the question of whether the debtor will succeed on the substance of his claim.
69.      To accept the interpretation that the decision or instrument that the creditor has obtained need not be enforceable in the Member State of origin would undermine the balance that the conditions governing the issue of Preservation Orders are supposed to create: when issuing a Preservation Order on the basis of a decision or instrument that is not yet enforceable, the court could not require the creditor to satisfy it of the fumus boni iuris of the claim specified in the decision or instrument. A Preservation Order might then be issued on the basis of an instrument that, as in the present case, rests on the statements made by the creditor, without the validity of the claim having been ascertained.
70.      That, to my mind, is the reason for which the decision or instrument obtained by the creditor must be enforceable in the Member State of origin in order for the creditor to be regarded as having obtained a decision or instrument.
71.      That also explains why the time limits for adopting a decision on an application for a Preservation Order specified in Article 18(1) and (2) of Regulation No 655/2014 differ, being shorter in the case where the creditor has already obtained a judgment, court settlement or authentic instrument. In such case, the court is relieved of the obligation of examining the fumus boni iuris of the creditor’s substantive claim.
72.      Moreover, Article 34(1)(b)(iii) of Regulation No 655/2014 provides that, upon application by the debtor, the enforcement of a Preservation Order in the Member State of enforcement will be terminated if the enforceability of the judgment the enforcement of which the creditor was seeking to secure by means of the Preservation Order has been suspended in the Member State of origin. That could be an indication that, in the case of Preservation Orders issued without the creditor being required to prove the fumus boni iuris of his claim, the Preservation Order’s enforceability rests on the enforceability of the decision or instrument in the Member State of origin. (22)
73.      Furthermore, the conclusions to which my analysis points also seem to be confirmed by an historical interpretation of Regulation No 655/214.
3.      Historical interpretation
74.      It should be noted that the proposal for a regulation presented by the Commission (23) that resulted in Regulation No 655/2014 rested on a dichotomy similar to that on which the present regulation rests.
75.      First of all, Article 5 of the proposal for a regulation drew a distinction between situations where the claimant applies for a Preservation Order prior to commencing judicial proceedings on the substance of the matter, or at any stage during such proceedings, or after he has obtained a judgment, court settlement or authentic instrument against the defendant which is enforceable in the Member State of origin but has not yet been declared enforceable in the Member State of enforcement where such a declaration is required, and situations where the claimant applies for a Preservation Order after having obtained a judgment, court settlement or authentic instrument against the defendant which is by operation of law enforceable in the Member State of enforcement or has been declared enforceable there.
76.      Next, in the proposal for a regulation, the conditions for issue are less stringent where the creditor is already in possession of a decision or instrument that is enforceable in the Member State of origin than where he is not. The conditions for issue are even less stringent where the creditor is in possession of a decision or instrument that is enforceable in the Member State of enforcement. (24) It is important to note that, according to Article 7(2) of the proposal for a regulation, read together with Article 5(1) thereof, the requirement of fumus boni iuris — which Article 7(2) of Regulation No 655/2014 imposes — does not apply where the creditor is in possession of an authentic instrument that is enforceable in the Member State of origin.
77.      Finally, under Article 23 of the proposal for a regulation, exequatur is abolished in cases where the creditor applies for a Preservation Order after having obtained a decision that is enforceable in the Member State of enforcement or has been declared enforceable there.
78.      The distinction between decisions and instruments regarded as enforceable only in the Member State of origin and those regarded as enforceable also in the Member State of enforcement was abandoned following the adoption by the Council of the European Union of a general approach to the proposal for a regulation. (25) It was at that stage that the provisions were drafted which draw a distinction between the position of the creditor who has obtained a decision or instrument requiring the debtor to pay the claim and the position of the creditor who has not done so. The conditions governing the issue of a Preservation Order which had been proposed to address the situation where the creditor is in possession of a decision or instrument enforceable in the Member State of origin were made to apply to the situation where the creditor is in possession of (‘has obtained’) a decision or instrument which requires the debtor to pay the claim. The Council’s general approach removed completely the exequatur procedure, as did Regulation No 655/2014.
79.      An analysis of the travaux préparatoires
for Regulation No 655/2014 therefore confirms my conclusion that the judgment, court settlement or authentic instrument must be enforceable in the Member State in which it was issued, approved, concluded or drawn up in order for the creditor to be regarded as having obtained a judgment, court settlement or authentic instrument which requires the debtor to pay the claim.
80.      Finally, it is true that recital 18 of Regulation No 655/2014, which concerns the security that the creditor is to provide, under the conditions set out in Article 12 of the regulation, seems to contradict the conclusion I have just presented. That recital indicates that a creditor who has obtained a decision or instrument may in fact be in possession of a judgment that is not yet enforceable or is only provisionally enforceable. Nevertheless, that recital, which has no legal force and, moreover, was not discussed in detail during the travaux préparatoires for Regulation No 655/2014, cannot call into question the coherent conclusions that may be drawn from a contextual and historical interpretation of the regulation.
81.      By way of a final observation, I cannot rule out the possibility that, during the travaux préparatoires for Regulation No 655/2014, by characterising the situations where the creditor is in possession of an enforceable decision or instrument as those in which the creditor has obtained a decision or instrument which requires the debtor to pay the creditor’s claim, the Council intended to distinguish those situations from those where the creditor is in possession of a decision or instrument that is not yet enforceable. Indeed, the expression appears only in Articles 5, 7 and 14 of the regulation.
82.      However, that intention does not appear to have been realised in Regulation No 655/2014. In the first place, recital 12 of the regulation explains that, by contrast with the situation where the creditor has not obtained a decision or instrument requiring the debtor to pay, the situation where he has obtained a decision or instrument encompasses the situation where he has obtained one that is not yet enforceable. In the second place, Article 6 (concerning jurisdiction to issue Preservation Orders) and Article 18 (on the time limits for issuing Preservation Orders) of that regulation evolved during the course of the travaux préparatoires and do not reflect that intention: first, the Council maintained the detailed procedures which, in the proposal for a regulation, applied to situations where the creditor is in possession of a decision or instrument that is enforceable in the Member State of origin; secondly, Articles 6 and 18 merely distinguish between situations where the creditor has not obtained a decision or instrument from those where he has, without specifying whether the decision or instrument obtained must be one requiring the debtor to pay and, thirdly, it was following the Council’s general approach that recital 13 of Regulation No 655/2014 was amended to include the explanation that the notion of ‘proceedings on the substance of the matter’ should cover any proceedings aimed at obtaining an enforceable title on the underlying claim. I infer from that that, in the Council’s opinion too, it is the obtaining of an enforceable decision or instrument that constitutes the demarcation line between the two methods of proceeding provided for in the system established by Regulation No 655/2014.
G.      Closing remarks
83.      Despite the paucity of detailed information regarding the aspects which may raise doubts in the present case, I have, on the basis of my presentation of the system established by Regulation No 655/2014, made some observations that might be helpful to the referring court.
84.      My analysis has shown that an order for payment under Bulgarian law is not an authentic instrument within the meaning of Regulation No 655/2014 and is more in the nature of a judgment, within the meaning of the regulation.
85.      However, under the regulation, the requirement of enforceability applies unequivocally to the three types of decision or instrument (judgments, court settlements and authentic instruments) that may form the basis of a Preservation Order.
86.      Moreover, my analysis has also led me to the conclusion that the question that needs to be answered is not whether an authentic instrument within the meaning of Article 4(10) of Regulation No 655/2014, taken in isolation, must be enforceable, but whether the decision or instrument (judgment, court settlement or authentic instrument) of which the creditor must be in possession in order for him to be regarded as having obtained a decision or instrument which requires the debtor to pay the creditor’s claim, within the meaning of the regulation’s provisions, must be enforceable or not.
87.      Within the scheme of the regulation, in order for the creditor to be regarded as having obtained a decision or instrument (a judgment, court settlement or authentic instrument) which requires the debtor to pay the creditor’s claim, within the meaning of Article 5(b) of the regulation in particular, the creditor must be in possession of a judgment, court settlement or authentic instrument that is enforceable in the Member State in which it was issued, approved, concluded or drawn up.
88.      The interpretation according to which the decision or instrument that the creditor has obtained must be enforceable in the Member State of origin does not mean that a creditor who has obtained a decision or instrument that is not yet enforceable cannot derive any advantage from it in the context of proceedings for the issue of a Preservation Order: it will be easier for such a creditor to satisfy the competent court that he is likely to succeed on the substance of his claim against the debtor. In addition, it cannot be ruled out that, under the second subparagraph of Article 12(1) of Regulation No 655/2014, such a creditor will be relieved of the obligation to provide security. Moreover, by contrast with the contrary interpretation, the solution I propose in this Opinion does not preclude the competent court from requiring the creditor to prove the fumus boni iuris of the claim specified in the decision or instrument that is not yet enforceable, in particular, where it was issued solely on the basis of the creditor’s unilateral statement.
VI.    Conclusion
89.      In light of the foregoing considerations, I propose that the Court should answer the first question referred by the Sofiyski rayonen sad (Sofia District Court, Bulgaria) for a preliminary ruling as follows:
Article 4(10) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters must be interpreted as meaning that an order for payment such as that at issue in the case in the main proceedings is not an authentic instrument within the meaning of the regulation because the content of the order for payment, which leaves aside the merits of the claim, essentially consists in the obligation for the debtor to satisfy the claim and, consequently, the authenticity of the instrument does not relate to its content in the sense intended by the EU legislature.
Within the system established by Regulation No 655/2014, a judgment, court settlement or authentic instrument must be enforceable in the Member State in which it was issued, approved, concluded or drawn up in order for the creditor to be regarded as having obtained a judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim, within the meaning of Article 5(b) of the regulation.
1      Original language: French.
2      Judgment of 21 May 1980 (125/79, EU:C:1980:130).
3      Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 3) (‘the Brussels Convention’).
4      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). Pursuant to
Article 2(a) of that regulation, a provisional or protective measure ordered by a court or tribunal having jurisdiction as to the substance of the matter without the defendant being summoned to appear is not a ‘judgment’, unless the judgment containing the measure is served on the defendant prior to enforcement. See also, to that effect, Cuniberti, G., Migliorini, S., The European Account Preservation Order Regulation. A Commentary, Cambridge University Press, Cambridge — New York, 2018, p. 5.
5      See the European Commission’s Green Paper on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts COM(2006) 618 final. See also, Monteiro, L.V., ‘The Bank Account Preservation Procedure in the European Union Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014’ in EU Law Journal, 2015, vol. 1(1), p. 122.
6      Judgment of 21 May 1980 (125/79, EU:C:1980:130).
7      Regulation of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (OJ 2014 L 189, p. 59).
8      On the main difference between Regulation No 1215/2012 and Regulation No 655/2014, see Lagus, J., ‘Freezing Europe: The European Account Preservation Order and Forum Shopping in the European Judicial Area’ in Tidskrift utgiven av Juridiska Föreningen i Finland, 2018, vol. 3-4, pp. 246 and 249.
9      See, inter alia, Popova, V., ‘Order for Payment Proceedings in Bulgarian Civil Procedure Law’, Civil Procedure Review, 2011, vol. 2(3), p. 34.
10      I would point out that, in another passage of the order for reference, the referring court states that an order for payment may be annulled if an application for a declaratory judgment acknowledging the claim is not lodged. However, it seems to me from Article 415(5) of the GPK that, in such a case, the court must, rather than may annul the order for payment.
11      See footnote 10.
12      See Beaumont, P., Fitchen, J., and Holliday, J., in The evidentiary effects of authentic acts in the Member States of the European Union, in the context of successions, p. 72, ‘Bulgaria’, Musseva, B., http://www.europarl.europa.eu/RegData/etudes/STUD/2016/556935/IPOL_STU%282016%29556935_EN.pdf.
13      Regulation of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15).
14      Council Regulation of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ 2009 L 7, p. 1).
15      Convention on jurisdiction and the enforcement of judgments in civil and commercial matters — Done at Lugano on 16 September 1988 (OJ 1988 L 319, p. 9).
16      See Article 4(3) of Regulation No 805/2004, Article 2(1)(3) of Regulation No 4/2009 and Article 2(c) of Regulation No 1215/2012.
17      See Article 25(1) of Regulation No 805/2004, Article 48 of Regulation No 4/2009 and Article 58 of Regulation No 1215/2012.
18      See Guinchard, E., ‘De la première saisie conservatoire européenne. Présentation du règlement No 655/2014 instituant une procédure d’ordonnance européenne de saisie conservatoire des comptes bancaires’ in Revue trimestrielle de droit européen,
No 4, 2014, p. 922.
19      It is true that, by contrast with Article 6(1) of Regulation No 655/2014, Article 618a of the GPK does not expressly state that a creditor may apply for a Preservation Order before obtaining an authentic instrument. Nevertheless, there is nothing to suggest that Bulgarian law might preclude a creditor from applying for a Preservation Order in such circumstances. In fact, the referring court seems to consider that that is the situation in the present case and that separate proceedings should be initiated to that end. Moreover, Article 5(a) of Regulation No 655/2014 too makes no mention of the situation where a creditor who has not yet obtained an authentic instrument applies for a Preservation Order before proceedings on the substance of the matter are initiated or during the course of such proceedings. That is because the legislature probably took the view that it would be unusual for an authentic instrument to be ‘issued’ upon the conclusion of proceedings on the substance of the matter.
20      See, in particular, Articles 7 and 12 of Regulation No 655/2014.
21      See, in particular
Monteiro,
L.V. op. cit., p. 129. This author states that, under Regulation No 655/2014, everything becomes simpler once the creditor has obtained an enforceable decision or instrument, whereas creditors who have not yet done so are required to prove fumus boni iuris.
22      I should point out that, according to the interpretations given to Article 34(1)(b)(iii) of Regulation No 655/2014 in works of legal theory, that provision applies only to Preservations Orders issued for the claim specified in the decision in the creditor’s possession: see Cuniberti, G., Migliorini, S., op. cit., p. 291. I infer from that that, for legal theorists too, the decision or instrument must be enforceable in order for the creditor to be regarded as having obtained a decision or instrument within the meaning of several different provisions of Regulation No 655/2014.
23      Proposal for a regulation of the European Parliament and of the Council creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters (COM(2011) 445 final, ‘the proposal for a regulation’).
24      See page 6 of the proposal for a regulation.
25      The Council’s general approach to the draft regulation creating a European Account Preservation order to facilitate cross-border debt recovery in civil and commercial matters, presented on 28 November 2013 (16991/13 ADD 1).