OPINION OF ADVOCATE GENERAL

BOT

delivered on 4 June 2015 ( 1 )

Case C‑223/14

Tecom Mican SL,

José Arias Domínguez

(Request for a preliminary ruling from the Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria (Spain))

‛Reference for a preliminary ruling — Regulation (EC) No 1393/2007 — Service of documents — Extrajudicial document — Definition’

1. In its judgment in Roda Golf & Beach Resort, ( 2 ) the Court stated that an ‘extrajudicial document’, within the meaning of Article 16 of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, ( 3 ) is a concept of EU law. ( 4 ) The Court further held that a document drawn up by a notary constitutes ‘as such’ an extrajudicial document. ( 5 )

2. The present request for a preliminary ruling raises the question whether a private document may also fall within the concept of an ‘extrajudicial document’ within the meaning of Article 16 of Regulation (EC) No 1393/2007, ( 6 ) which replaced Regulation No 1348/2000, and therefore calls on the Court to give a definition of that concept.

3. The request was made in the context of an application for review made before the Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria (Court of First Instance No 7, Las Palmas de Gran Canaria) (Spain) by Tecom Mican SL ( 7 ) against the refusal of the secretario judicial (registrar) of that court to serve a letter of demand on MAN Diesel & Turbo SE ( 8 ) on the ground that a strictly private document cannot be regarded as an extrajudicial document.

4. In this Opinion, I shall submit, first, that a document drawn up or certified by a public authority or official or any person so competent under the law of the Member State of origin, as well as any document the transmission of which to its addressee is necessary for the purposes of exercising, proving or safeguarding a right, constitutes an ‘extrajudicial document’ within the meaning of Article 16 of Regulation No 1393/2007.

5. Next, I shall argue that there is no need to determine, in each individual case and on the basis of an assessment of the particular circumstances of that case, whether the transmission of a document satisfying one of those two criteria has cross-border implications and is necessary for the proper functioning of the internal market.

6. Finally, I shall show that an extrajudicial document which has already been served on its addressee may be served again under the procedures laid down in Regulation No 1393/2007, even if the first service was itself effected in accordance with that regulation.

I – Legal framework

A – International law

7. Article 17 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ( 9 ) provides: ‘Extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be transmitted for the purpose of service in another Contracting State by the methods and under the provisions of the present Convention.’

B – EU law

8. By act of 26 May 1997, the Council of the European Union drew up, on the basis of Article K.3 of the Treaty on European Union, a Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters. ( 10 ) Article 16 of the 1997 Convention states: ‘Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Convention.’

9. Although the 1997 Convention never entered into force because it was not ratified by the Member States prior to the entry into force of the Treaty of Amsterdam, Regulation No 1348/2000 was extensively based on it.

10. Article 16 of Regulation No 1348/2000 reproduced the wording of the 1997 Convention as follows: ‘Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation.’

11. Article 17(b) of that regulation provided for the drawing up of a glossary of documents which may be served under that regulation.

12. That regulation was replaced by Regulation No 1393/2007.

13. Recitals 2 and 6 in the preamble to Regulation No 1393/2007 state: ‘(2) The proper functioning of the internal market entails the need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States. … (6) Efficiency and speed in judicial procedures in civil matters require that judicial and extrajudicial documents be transmitted directly and by rapid means between local bodies designated by the Member States …’

14. With regard to the local bodies designated by the Member States, Article 2 of that regulation provides: ‘1. Each Member State shall designate the public officers, authorities or other persons … competent for the transmission of judicial or extrajudicial documents to be served in another Member State. [ ( 11 )] 2. Each Member State shall designate the public officers, authorities or other persons … competent for the receipt of judicial or extrajudicial documents from another Member State. [ ( 12 )] …’

15. Pursuant to Article 23(1) of the regulation, the Kingdom of Spain designated the ‘secretario judicial’ as the transmitting agency.

16. The ‘[o]ther means of transmission and service of judicial documents’ are laid down in Articles 12 to 15 of Regulation No 1393/2007.

17. Article 16 of that regulation provides: ‘Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation.’

18. That regulation does not provide for the drawing up of a glossary of documents which may be served.

19. In accordance with Article 20(1) of Regulation No 1393/2007, that regulation prevails over other provisions contained, inter alia, in the Hague Convention.

II – The dispute in the main proceedings and the questions referred for a preliminary ruling

20. In November 2009, Tecom, which has its registered office in Spain, and MAN Diesel, whose registered office is located in Germany, concluded a commercial agency contract which was terminated by MAN Diesel in 2012.

21. Following that termination, Tecom drafted a letter of demand seeking, inter alia, the payment of a goodwill indemnity and accrued and unpaid commissions. That letter mentioned the possibility of legal action if the demand were not satisfied and further stated that a similar letter of demand, drawn up by notarial act, had already been sent to MAN Diesel in the person of its executive director.

22. On 19 November 2013, Tecom asked the secretario judicial of the Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria to effect service of that letter of demand at the registered office of MAN Diesel through the Amtsgericht Augsburg (Local Court, Augsburg), pursuant to Regulation No 1393/2007.

23. The secretario judicial refused to transmit the letter on the ground that no judicial proceedings requiring recourse to the mutual legal assistance sought had been instituted.

24. Tecom brought an application for the reconsideration of that refusal on the ground that, in accordance with the judgment in Roda Golf & Beach Resort, ( 13 ) Article 16 of Regulation No 1393/2007 does not require that legal proceedings be ongoing in order for service of extrajudicial documents to be effected.

25. By order of 20 December 2013, the secretario judicial dismissed the application for reconsideration and confirmed the contested decision, stating that, despite the absence of a glossary, drawn up by the Kingdom of Spain, specifying the type of documents covered by Article 16 of Regulation No 1393/2007, the view could not be taken that service of any private document could be effected pursuant to the provisions of that regulation. The secretario judicial took the view, in particular, that ‘only extrajudicial documents which meet the characteristics indicated, the latter conferring official status on those documents, fall within the material scope of th[at] regulation; which is to say that those documents, by their nature or by virtue of their formal character, produce certain legal effects’. In his view, any other interpretation would have the effect of distorting the concept of ‘extrajudicial documents’ within the meaning of Article 16 of Regulation No 1393/2007, thus running the risk of turning national courts into ‘courier services’; in this regard, he adopted the terminology used by Advocate General Ruiz-Jarabo Colomer in his Opinion in Roda Golf & Beach Resort (C‑14/08, EU:C:2009:134).

26. On 2 January 2014, Tecom submitted an application for review of that order, claiming that a strictly private document can be regarded as an ‘extrajudicial document’ which may be served in accordance with the provisions of Regulation No 1393/2007.

27. The referring court has pointed out that, in accordance with the judgment in Roda Golf & Beach Resort, ( 14 )‘extrajudicial documents’ are an autonomous concept of EU law. However, it finds itself unable to interpret an autonomous concept of EU law in the absence of any information enabling it to determine the characteristics which a document must exhibit in order to be regarded as an extrajudicial document.

28. In addition, the referring court asks whether the implementation of Regulation No 1393/2007 is subject to any limits so far as concerns, first, the situation where a letter of demand is served both by a notary and by a judicial authority, and, secondly, the requirement of a condition of application of the regulation that is based on the cross-border implications of the cooperation and the proper functioning of the internal market, where the extrajudicial document is intended to give practical effect to the subjective rights afforded by national legislation or EU law.

29. In the light of those considerations, the Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria referred the following questions for a preliminary ruling: ‘(1) Can a purely private document be considered an “extrajudicial document” within the meaning of Article 16 of Regulation No 1393/2007 …, regardless of whether it was issued by a non-judicial public authority or official? (2) If so, can any private document whatsoever be considered an extrajudicial document or must it meet certain specific requirements? (3) Supposing that the private document meets those requirements, may an EU citizen request service under the procedure laid down in Article 16 of Regulation No 1393/2007 …, when he has already effected such service through another non-judicial public authority, such as a notary? (4) Lastly, is it necessary, for the purposes of Article 16 of Regulation No 1393/2007, to have regard to the fact that the cooperation has cross-border implications and is necessary for the proper functioning of the internal market? When must it be understood that judicial cooperation has “cross-border implications and is necessary for the proper functioning of the internal market”?’

III – My analysis

A – The first and second questions

30. By its first and second questions, which should be examined jointly, the referring court asks, in essence, whether a strictly private document which has not been issued or authenticated by a public authority or official may be regarded as an ‘extrajudicial document’ within the meaning of Article 16 of Regulation No 1393/2007.

31. It should be pointed out, at the outset, that the qualifier ‘extrajudicial’ is not defined in EU law, even though it appears in a number of provisions of primary law. ( 15 ) In addition, that adjective may have different meanings depending on the noun which it qualifies. So it is that the concept of an ‘extrajudicial decision’ calls to mind decisions given following the use of alternative methods of dispute settlement, whereas the concept of an ‘extrajudicial document’ may suggest a broader interpretation extending beyond the framework of dispute settlement procedures alone. In the light of the multiple meanings of the term ‘extrajudicial’, I shall therefore focus my examination on an analysis of the concept of an ‘extrajudicial document’ within the meaning of Regulation No 1393/2007.

32. In order to determine the substance of that concept, it is necessary to begin with a summary of the history behind it.

33. The system for the service of documents through a central authority dates back to the Hague Convention, Article 17 of which provides for the transmission of ‘extrajudicial documents emanating from authorities and judicial officers of a Contracting State’ by the methods and under the provisions of that convention. As a reading of the documents preparatory to it confirms, the drafters of the Convention sought to exclude strictly private documents from its scope, and to have the documents to be served screened or reviewed by an official body. ( 16 )

34. However, that restrictive intention is not entirely borne out by the Practical Handbook on the Operation of the Hague Service Convention. ( 17 ) It is true that that Handbook states that ‘[e]xtrajudicial documents differ from judicial documents in that they are not directly related to a trial, and from strictly private documents in that they require the involvement of an “authority or judicial officer”’. ( 18 ) The Handbook further states that ‘[t]here are many kinds of extrajudicial documents. Extrajudicial documents include, for the purposes of Article 17, demands for payment, notices to quit in connection with leaseholds or contracts of employment, protests with respect to bills of exchange and promissory notes, provided that they are issued by an authority or huissier’. ( 19 ) However, the Handbook is somewhat ambiguous since it goes on to state, in more general terms, that ‘[o]bjections to marriage, consents for adoption, and acceptances of paternity are also in this class in so far as they imply compliance with certain formalities’. ( 20 ) In addition, after having mentioned that, in certain systems, private persons serve certain extrajudicial documents themselves with identical effect, the Handbook points out that, ‘even though the Convention intended to exclude from Article 17 documents emanating from private persons …, the Special Commission encouraged the Central Authorities to serve extrajudicial documents not emanating from an authority or judicial officer if those documents were of a type which normally would call for the intervention of an authority in their country’. ( 21 ) The Handbook states, moreover, that ‘[c]haracterisation as a judicial or extrajudicial document depends on the law of the requesting State (State of origin)’ ( 22 ) since ‘it is that law which determines the power of the authorities and judicial officers to issue a given document’, ( 23 ) although it does specify that the concept of ‘judicial and extrajudicial documents’ is to be construed broadly. ( 24 )

35. Although inspired by the Hague Convention, the 1997 Convention differs from that convention in that it does not limit its scope exclusively to the transmission of extrajudicial documents issued by public authorities or officials. The Explanatory Report on the 1997 Convention ( 25 ) states in this regard that, although the term ‘extrajudicial documents’ is not amenable to precise definition, ‘[i]t may be taken to cover documents drawn up by a public officer, for example a notarial deed or a writ, documents drawn up by Member States’ official authorities or documents of a type or importance which require them to be transmitted and brought to the addressee’s attention by official procedure’. ( 26 )

36. Article 16 of Regulation No 1348/2000 reproduced the wording of Article 16 of the 1997 Convention. However, that regulation had introduced a new feature inasmuch as it provided for the drawing up of a glossary of documents which may be served under the regulation. That glossary, which formed Annex II to Commission Decision 2001/781/EC of 25 September 2001 adopting a manual of receiving agencies and a glossary of documents that may be served under Regulation No 1348/2000, ( 27 ) as amended by Commission Decision 2008/541/EC of 8 April 2008, ( 28 ) included the information communicated by the Member States pursuant to Article 17(b) of Regulation No 1348/2000. A reading of Annex II showed that the Member States had provided that information in different forms and that the content of the information provided differed. Some Member States had simply stated, in general terms, that extrajudicial documents were included in the documents that may be served. ( 29 ) Other Member States, on the other hand, had clearly limited the concept of ‘extrajudicial documents’ to documents emanating from a public authority or a public officer only. ( 30 ) Others still had adopted a broad definition capable of encompassing private documents. ( 31 ) Finally, some Member States had drawn up a detailed list of the documents they considered capable of being served, without distinguishing between judicial documents and extrajudicial documents. ( 32 )

37. As for Article 16 of Regulation No 1393/2007, it reproduces Article 16 of Regulation No 1348/2000 verbatim. However, unlike that latter regulation, Regulation No 1393/2007 does not provide for the drawing up of a glossary.

38. That historical summary shows there to be two different conceptions of extrajudicial documents within the Member States. One makes the involvement of a public authority or official the decisive criterion for identifying such a document. The other, on the contrary, disregards the criterion relating to the author of the document and focuses on the latter’s connection with the exercise or safeguarding of a right. That divergence on the part of the national legal systems very definitely explains why, with the exception of the Hague Convention, the restrictive vision of which was, however, later qualified, international and Community instruments relating to the transmission of documents in civil or commercial matters are careful not to give a definition of extrajudicial document.

39. In order to answer the question whether a strictly private document may constitute an extrajudicial document, it is necessary to go beyond the merely negative definition of such a document, that is to say its definition by opposition to a judicial document, and to identify the components of a positive definition of such a document for the purposes of Article 16 of Regulation No 1393/2007.

40. The differences in approach which I set out above when charting the history of the concept can be found in the written observations lodged before the Court.

41. On the one hand, the Spanish Government takes the view that a private document cannot be an extrajudicial document, since that classification must be reserved, at least in Spain, for documents issued by officials, notaries and mortgage registrars. In support of that argument, it submits in particular that the objective of Regulation No 1393/2007 is to guarantee the transmission not of any document between private individuals resident in different Member States, but only of documents which must be issued in the course of judicial proceedings or which are intended to protect rights with a view to the possibility of such proceedings. It infers from this that the document in question must always be public, in the sense that it must constitute proof of the identity of its author, the date of its issue and its content.

42. On the other hand, Tecom, the German and Hungarian Governments and the European Commission opt for a broader definition which is independent of the author of the document and, as such, includes certain private documents. Thus, the German Government includes private documents in the category of extrajudicial documents ‘in so far as their formal communication is such as to make it possible to guarantee, give effect to or counter a claim in civil or commercial matters’, whereas the Hungarian Government proposes that an ‘extrajudicial document’ be classified as any private document which ‘must be sent to its addressee by means of a service procedure in accordance with the applicable rules of substantive or procedural law of the Member States or of the European Union in a particular civil or commercial matter’. Tecom and the Commission, for their part, adopt the criterion, based on the type and importance of the document, which is set out in the Explanatory Report on the 1997 Convention.

43. With reference to the criteria identified by Advocate General Ruiz-Jarabo Colomer in his Opinion in Roda Golf & Beach Resort, ( 33 ) the Portuguese Government adopts a — not entirely unambiguous — intermediate position to the effect that a private document may be regarded as an extrajudicial document provided, inter alia, ‘that it entails the involvement of an authority or the adoption of a public document’.

44. Before I set out my own view, it is appropriate, at the outset, to recall that the Court has already adopted a position on whether the concept of an ‘extrajudicial document’ is to be given an autonomous interpretation. Whereas several governments had argued before it that the substance of the concept of an ‘extrajudicial document’ ought to be determined according to the law of each Member State, the Court, in its judgment in Roda Golf & Beach Resort, ( 34 ) held that that concept was to be regarded as a concept of EU law, ( 35 ) taking into account, on the one hand, the ‘will of the Member States to anchor [the measures in the field of judicial cooperation in civil matters having cross-border implications] firmly in the Community legal order and thus to lay down the principle that they are to be interpreted autonomously’, ( 36 ) and, on the other hand, the choice of the form of a regulation, which, in the view of the Court, ‘shows the importance which the Community legislature attaches to the direct applicability of the regulation’s provisions and their uniform application’. ( 37 )

45. I would point out that the Court also held, in the same judgment, that a document drawn up by a notary constitutes ‘as such’ an extrajudicial document. Moreover, it provided further clarification by dismissing the argument that a broad definition of the concept of an ‘extrajudicial document’ would place an excessive burden on the resources of the national courts, and pointing out that the obligations with regard to service which derive from Regulation No 1348/2000 are not necessarily the responsibility of the national courts. ( 38 )

46. Those solutions, arrived at on the basis of Regulation No 1348/2000, are, in my view, perfectly transposable to situations governed by Regulation No 1393/2007, particularly since the latter removed the provision relating to the glossary of documents that may be served, which might have suggested that the Member States retained some discretion in the determination of which documents constitute extrajudicial documents.

47. The Court has not, however, indicated which criteria are to be used to assess whether or not a document is an ‘extrajudicial document’ within the meaning of EU law. In his Opinion in Roda Golf & Beach Resort, ( 39 ) Advocate General Ruiz-Jarabo Colomer had proposed the use of three criteria, which he had regarded as being cumulative, based, first, on the author of the document, which must be a public authority; secondly, on the legal effects produced by the document, which must be ‘specific and different’; and, thirdly, on the existence of evidence of a connection, however slight, between the document and a judicial authority, characterised by the fact that the document ‘[must be capable of being] used to support a claim in possible … proceedings’. ( 40 )

48. Before looking more specifically at the criteria which I am proposing should be employed, it is, in my view, necessary to return to the implications of a broader or narrower definition of the concept of an ‘extrajudicial document’, since it seems to me that the different understandings of that concept stem in part from a failure fully to grasp those implications.

49. It should be pointed out, first of all, that, even though ‘judicial cooperation … cannot be limited to legal proceedings alone’, ( 41 ) the fact remains that the objective of transmitting extrajudicial documents is, as the fact that only one article of Regulation No 1393/2007 is devoted to such documents confirms, subsidiary to the overriding objective of improving and expediting the transmission of judicial documents. The explanation for this is probably to be found in the fact that, in national legal systems, the communication of judicial documents to their addressee is generally subject to formalities which are liable to slow down or complicate the procedure, especially where delivery is to be effected in another country and calls into question the sovereignty of the State in which that delivery is to take place. The harmonisation of national laws is therefore an effective means of improving and expediting the cross-border transmission of such documents. The service of extrajudicial documents, on the other hand, is not necessarily subject to the same rules, under the national legal systems, as are applicable to judicial documents. If their transmission is discretionary, subjecting that transmission to the mechanisms laid down in Regulation No 1393/2007 scarcely constitutes a means of facilitating or expediting matters, in my view. Another objective, however, relating this time to security of transmission, which seeks to protect the interests both of the applicant and of the addressee, may justify the proposition that such documents can be transmitted in accordance with Regulation No 1393/2007.

50. Next, it must be pointed out that the purpose of an autonomous definition of extrajudicial documents is not, to my mind, to establish the lowest common denominator from among all the legal traditions of the Member States, the consequence of which would be to retain only those criteria which are exactly equivalent in each of the national legal systems. On the contrary, I am of the opinion that this definition-seeking exercise must have a unifying aim, in that it seeks rather to ensure that any document deemed to be extrajudicial in one Member State may be transmitted without hindrance to the others.

51. In that regard, I have considered whether the solution to the problem of defining extrajudicial documents should not have been found by applying a principle that might be termed the country of origin principle, whereby the authorities of the receiving Member State would be required to ensure the transmission of all documents deemed to be extrajudicial by the Member State of origin. This would meet the objective pursued by Regulation No 1393/2007, since any document regarded as ‘extrajudicial’ in one Member State would be able to move freely and easily throughout the European Union. However, the assertion in the judgment in Roda Golf & Beach Resort ( 42 ) that an ‘extrajudicial act’ is an autonomous concept appears to have put an end to that approach, which probably has the disadvantage of affording an excessively broad discretion to the Member States.

52. It is necessary, ultimately, to find a definition which is sufficiently broad to encompass the diversity of the existing interpretations of that concept and sufficiently precise to avoid legal uncertainty.

53. I shall, at the outset, employ the organic criterion based on the involvement of a non-judicial authority with the power to draw up or to certify legal documents. The relevance of that criterion lies in the exercise, by the drafting or certifying authority, of a control over the content of the documents to be transmitted which is separate from the control exercised by the transmitting and receiving agencies in the context of Regulation No 1393/2007. After all, the latter control is confined to verifying that the document to be transmitted does indeed fall within the scope of that regulation and that the formal conditions for transmission laid down by that regulation have been duly observed.

54. I do not think that the scope of that organic criterion should be reduced by the introduction of other cumulative requirements relating, in particular, to the specific and differentiated legal effects that the document would produce following the involvement of the authority, or to the fact that the document would support a claim in any legal proceedings. In my view, the Court, in finding, in its judgment in Roda Golf & Beach Resort, ( 43 ) that a document drawn up by a notary constitutes ‘as such’ an extrajudicial document, implicitly rejected that proposition.

55. Is it necessary, however, to adopt another, not cumulative but alternative, criterion which would make it possible to include within the concept of ‘extrajudicial documents’ within the meaning of Article 16 of Regulation No 1393/2007 documents which emanate from private individuals and the content of which, as such, has not been previously certified by an authority?

56. In that regard, while it seems to me to be impossible to determine which documents are covered by the concept of ‘extrajudicial document’ by reference to a criterion as contingent and ill-defined as that relating to the ‘importance’ of the document, which is so subjective as to give rise to legal uncertainty incompatible with the objective of improving and expediting the transmission of documents, I am none the less inclined to the view that the objective relating to the proper functioning of the internal market justifies the search for an objective criterion on the basis of which the concept of ‘extrajudicial documents’ may be extended to include certain legal documents not drawn up or certified by an authority.

57. However, it is not easy to identify a distinguishing principle which accommodates the diversity of the legal documents involved while at the same time satisfying the requirements of the principle of legal certainty.

58. One might contemplate adopting as a criterion whether or not the document is subject to formalities in relation to its service. Where service of the document is subject to particular formalities under the national law of the Member State of origin, service in another country could be effected by the methods laid down in Regulation No 1393/2007. On the other hand, where there is no restriction on the freedom to choose between the means of service, transmission to another country could not be effected by those methods. However, this distinguishing criterion does not seem to me to be satisfactory because it requires an assessment of each individual document, based on the law of the Member State of origin, in order to determine whether or not service is subject to particular formalities.

59. Perhaps, then, the criterion sought might lie in whether or not service is necessary in order for the legal document in question to be effective, which would effectively amount to a distinction between declaratory documents, that is to say those the service of which on the person liable to be affected by them is a condition of their effectiveness, and non-declaratory documents. ( 44 )

60. The adoption of that criterion, however, would simply shift rather than resolve the conceptual difficulty, in so far as the distinction between declaratory and non-declaratory documents is itself a fine one. It therefore seems to me to be necessary to provide the clearer guide offered by the use of a criterion which takes account of the natural and direct function of transmitting the document in question to its addressee. This would involve including within the concept of ‘extrajudicial documents’ within the meaning of Article 16 of Regulation No 1393/2007 any document the transmission of which to its addressee is necessary for the purposes of exercising, proving or safeguarding a right.

61. Such an extension of the concept would be capable of offering increased legal certainty both for the applicant and for the addressee of such documents, inasmuch as it would, in particular, provide the option of using the procedure for transmission between transmitting agencies and agencies competent to receive documents.

62. I do not think that the extension proposed would give rise to an increase in requests for transmission between the transmitting agencies and receiving agencies, resulting in an excessive workload for those agencies, which would thus be turned into postal services. After all, sight must not be lost of the fact that the use of the system for transmitting documents provided for in Regulation No 1393/2007 exposes the applicant to the payment of costs and, in addition, requires him to comply with certain formalities relating in particular to translation.

63. That extension would have the advantage of enabling persons such as Tecom, who, in order to exercise their rights, must bring a document to the attention of its addressee, to surround themselves with supplementary guarantees in the case of a process complicated by the fact that the document must be transmitted to another country.

64. It is for those reasons that I propose that the Court answer the first two questions to the effect that a document drawn up or certified by a public authority, by an official or by any person so competent under the law of the Member State of origin, as well as any document the transmission of which to its addressee is necessary for the purposes of exercising, proving or safeguarding a right, constitutes an ‘extrajudicial document’ within the meaning of Article 16 of Regulation No 1393/2007.

B – The fourth question

65. On account of its connection to the first and second questions, I shall examine the fourth question before the third.

66. As is clear from the order for reference, the doubts of the Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria with respect to the interpretation to be given to the conditions relating to the cross-border implications of the judicial cooperation and the proper functioning of the internal market stem from the fact that paragraph 56 of the judgment in Roda Golf & Beach Resort ( 45 ) states that the judicial cooperation referred to in Article 65 EC may manifest itself both in the context of and in the absence of legal proceedings ‘if that cooperation has cross-border implications and is necessary for the proper functioning of the internal market’. ( 46 )

67. The referring court is therefore asking, in essence, whether, in order to determine whether a document constitutes an ‘extrajudicial document’ within the meaning of Article 16 of Regulation No 1393/2007, it must be verified that the transmission of that document has cross-border implications and is necessary for the proper functioning of the internal market.

68. In that regard, it is sufficient to recall that the condition relating to the cross-border implications of the judicial cooperation and the proper functioning of the internal market constitutes the legal basis on which Regulation No 1393/2007 is founded.

69. In accordance with the teleological and schematic methods of interpretation, that regulation must be interpreted in the light of the objectives which it pursues on the foundation of that legal basis.

70. However, the condition relating to the cross-border implications of the judicial cooperation seems to me to be irrelevant for the purposes of determining the scope of Regulation No 1393/2007 so far as the documents in question are concerned, since the situations governed by that regulation, which is concerned with the transmission of a judicial or extrajudicial document from one Member State to another, are necessarily of a cross-border nature on account of the involvement of two Member States.

71. The objective relating to the proper functioning of the internal market, on the other hand, must be taken into account for the purposes of determining the meaning of the concept of an ‘extrajudicial document’. ( 47 ) Nevertheless, I share the view of the German Government to the effect that, where it is established that the document at issue comes under the category of ‘extrajudicial documents’ within the meaning of Article 16 of Regulation No 1393/2007, there is no point in justifying on a case-by-case basis the need, for the purposes of the proper functioning of the internal market, to ensure that that document is served in accordance with the procedures laid down in that regulation.

72. I therefore take the view that the answer to the fourth question should be that there is no need to verify, in each individual case and on the basis of an assessment of the particular circumstances of that case, whether the transmission of the document at issue has cross-border implications and is necessary for the proper functioning of the internal market.

C – The third question

73. By its third question, the referring court asks, in essence, whether an extrajudicial document which has already been served on its addressee may be served again in accordance with the procedure laid down in Regulation No 1393/2007.

74. The answer to that question does not appear to me to be in any doubt where the first service was not effected in accordance with the procedures provided for in Regulation No 1393/2007.

75. After all, in that situation, it is absolutely essential to allow service to be effected again or in a compliant manner. It is inherent in the principle that, where the person to be served with the judicial or extrajudicial document resides abroad, the service of that document must be carried out by the means put in place by Regulation No 1393/2007, ( 48 ) that the applicant should be afforded the opportunity to effect service of the document in question in a manner compliant with that regulation.

76. The answer is less clear-cut where the first service of the document was effected in accordance with Regulation No 1393/2007. As the Commission suggests, this could be the case in the main proceedings if service of the letter of demand, in its notarised form, could be regarded as direct service by postal services, as provided for in Article 14 of Regulation No 1393/2007.

77. In its judgment in Alder (C‑325/11, EU:C:2012:824), the Court held that Regulation No 1393/2007 does not establish a hierarchy between the various means of transmission for which it provides. ( 49 ) In my view, it is for the applicant and the applicant alone to choose, from among the various means available to him, the method which he deems to be the most appropriate and to decide, if he considers it necessary, to effect a re-transmission after having transmitted the document in question a first time.

78. In this regard, it seems to me that an applicant may have good reasons for wanting to re-transmit a document which has already been served, and that it is not for the transmitting agencies or receiving agencies under Regulation No 1393/2007 to review the relevance of those reasons. It may be the case, for example, that service of a document does not take place within the time-limit for effecting such service laid down by national law.

79. Moreover, to conclude otherwise and to entrust the transmitting and receiving agencies in particular with the task of reviewing appropriateness would be to burden them with a responsibility that they are not necessarily able to carry.

80. I therefore take the view that one and the same document may legitimately be served on successive occasions by one and the same means or by different means and, consequently, that the answer to the third question should be that an extrajudicial document which has already been served on its addressee may be served again under the procedures laid down in Regulation No 1393/2007, even if the first service was itself effected in accordance with that regulation.

IV – Conclusion

81. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria as follows: (1) A document drawn up or certified by a public authority, an official or any person so competent under the law of the Member State of origin, as well as any document the transmission of which to its addressee is necessary for the purposes of exercising, proving or safeguarding a right, constitutes an ‘extrajudicial document’ within the meaning of Article 16 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000. (2) There is no need to determine, in each individual case and on the basis of an assessment of the particular circumstances of that case, whether the transmission of a document satisfying either of those two criteria has cross-border implications and is necessary for the proper functioning of the internal market. (3) An extrajudicial document which has already been served on its addressee may be served again under the procedures laid down in Regulation No 1393/2007, even if the first service was itself effected in accordance with that regulation.

( 1 ) Original language: French.

( 2 ) C‑14/08, EU:C:2009:395.

( 3 ) OJ 2000 L 160, p. 37.

( 4 ) Paragraphs 47 and 50 of that judgment.

( 5 ) Paragraph 58 of the judgment.

( 6 ) Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

( 7 )

( 8 )

( 9 )

( 10 ) OJ 1997 C 261, p. 2, ‘the 1997 Convention’.

( 11 ) ‘The transmitting agencies.’

( 12 ) ‘The receiving agencies.’

( 13 ) C‑14/08, EU:C:2009:395.

( 14 ) C‑14/08, EU:C:2009:395.

( 15 ) See Article 67(4) TFEU which provides that the European Union is to facilitate access to justice, in particular through the principle of mutual recognition of ‘judicial and extrajudicial decisions’ in civil matters; Article 81 TFEU which provides that the Union is to develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of ‘judgments and of decisions in extrajudicial cases’, and that the European Parliament and the Council are to adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring the mutual recognition and enforcement between Member States of ‘judgments and of decisions in extrajudicial cases’ and the cross-border service of judicial and extrajudicial documents; and Article 11(6) of Protocol No 5 on the Statute of the European Investment Bank which states that the President or, if he is prevented, a Vice-President is to represent the Bank in ‘judicial and other matters’.

( 16 ) See the ‘Report of the Special Commission presented by Mr Vasco Taborda Ferreira’, Conférence de La Haye de droit international privé — Actes et documents de la Dixième session — Tome III — Notification, The Hague, 1965, p. 74, which states, on p. 108, that Article 17 ‘is intended to make available to individuals, in relation to extrajudicial documents, the means of transmission provided for, in transmission by the Central Authority’, but that ‘the Convention may be applied only to the international transmission of documents emanating from authorities or judicial officers of a Contracting State acting in such capacity’. It also states that ‘[t]he preliminary draft makes no reference to the means of transmitting documents emanating from private individuals. It was decided that the Convention should not be applied if there were not, at the outset, a document issued by an official body capable of screening or reviewing documents’. See also the ‘Explanatory Report of Mr V. Taborda Ferreira’, op. cit., p. 363, which specifies that, ‘in cases where a notary is not regarded as a judicial officer by the State in which he practises, it was agreed that documents issued by him may not be taken into account for the purposes of the Convention’ (p. 380).

( 17 ) Practical Handbook on the Operation of the Hague Service Convention, Permanent Bureau of the Hague Conference on Private International Law, 3rd edition, Wilson & Lafleur, Montreal, 2006.

( 18 ) Paragraph 67, p. 85.

( 19 ) Idem. The draft revised version of the Handbook drawn up in May 2014 by the Permanent Bureau of the Hague Conference on Private International Law adds to that list notarial documents, notice of dates of mediation hearings, notices served by creditors upon debtors, testamentary documents, notifications to beneficiaries of a deceased estate, decisions concerning child support payments and decisions concerning the granting of separation and divorce orders issued by an administrative entity, summons by huissiers, deeds, and documents related to the execution conducted by a bailiff. At the time of delivery of this Opinion, that draft revised version is available at http://www.hcch.net/upload/wop/2014/2014sc_pd02en.pdf.

( 20 ) Paragraph 67, p. 85.

( 21 ) Paragraph 70, p. 86.

( 22 ) Paragraph 68, p. 85.

( 23 ) Paragraph 68, pp. 85 and 86.

( 24 ) Paragraph 70, p. 86.

( 25 ) OJ 1997 C 261, p. 26.

( 26 ) See the fourth subparagraph of Article 1(1) of that report.

( 27 ) OJ 2001 L 298, p. 1 and — corrigenda — OJ 2002 L 31, p. 88 and OJ 2003 L 60, p. 3.

( 28 ) OJ 2008 L 173, p. 17.

( 29 ) This category includes Ireland (‘All judicial or non-judicial documents concerning any matter coming within the scope of the Regulation’); the Italian Republic (‘extra-judicial documents in general’); the Grand Duchy of Luxembourg, which made express reference to its national law (‘all judicial and extra-judicial documents provided for by Luxembourg laws and regulations in civil and commercial matters’); the Kingdom of the Netherlands (‘judicial and extra-judicial documents in civil and commercial matters’); and the Kingdom of Sweden (‘The documents which may be served on the basis of the Regulation are originating applications to the court, applications for an injunction to pay a debt, and any other judicial or extra-judicial documents which should or must be served in civil or commercial matters’).

( 30 ) This is true of the Kingdom of Belgium (‘Documents from court registrars, public prosecutors, bailiffs and notaries’); the Kingdom of Spain (‘[a]s regards the extra-judicial documents that may be served, these are non-judicial documents issued by public authorities that are competent to effect service under Spanish law’); and the French Republic (‘extra-judicial documents issued by the authorities and ministry officials’).

( 31 ) The Member States in question are the Federal Republic of Germany (‘Extra-judicial documents are documents which are served for the purposes of safeguarding, enforcing or repealing a civil or commercial claim outside the context of a judicial procedure. These include [notarised deeds and out-of-court settlements]’); the Republic of Austria (‘extra-judicial documents — namely documents seeking to safeguard, pursue or counter a civil or commercial claim, but without involving civil court proceedings [—] may be served’); and the United Kingdom of Great Britain and Northern Ireland (‘Legal documents required to be served in connection with any non-judicial civil or commercial matter’).

( 32 ) These Member States include the Hellenic Republic, whose list — moreover — appears to relate to judicial documents only, the Portuguese Republic and the Republic of Finland.

( 33 ) C‑14/08, EU:C:2009:134.

( 34 ) C‑14/08, EU:C:2009:395.

( 35 ) Paragraphs 47 and 50.

( 36 ) Paragraph 48.

( 37 ) Paragraph 49.

( 38 ) Paragraph 59.

( 39 ) C‑14/08, EU:C:2009:134.

( 40 ) Point 93.

( 41 ) Judgment in Roda Golf & Beach Resort (C‑14/08, EU:C:2009:395, paragraph 56).

( 42 ) C‑14/08, EU:C:2009:395.

( 43 ) Idem.

( 44 ) On the distinction in relation to unilateral legal documents, see Flour, J., Aubert, J.-L., and Savaux, E., Les obligations — 1. L’acte juridique, 14th edition, Dalloz, Paris, 2010, p. 465, No 494.

( 45 ) C‑14/08, EU:C:2009:395.

( 46 ) Emphasis added.

( 47 ) See my analysis in point 56 of this Opinion.

( 48 ) See the judgment in Alder (C‑325/11, EU:C:2012:824, paragraph 25).

( 49 ) Ibidem (paragraph 31).