Case C‑503/15

Ramón Margarit Panicello

v

Pilar Hernández Martínez

(Request for a preliminary ruling from the Secretario Judicial del Juzgado de Violencia sobre la Mujer Único de Terrassa)

(Request for a preliminary ruling — Article 267 TFEU — Registrar — Definition of ‘a court or tribunal’ — Compulsory jurisdiction — Exercise of judicial functions — Independence — Lack of jurisdiction of the Court)

Summary — Judgment of the Court (Fifth Chamber), 16 February 2017

Questions referred for a preliminary ruling — Reference to the Court — ‘a court or tribunal’ within the meaning of Article 267 TFEU — Definition — Secretario Judicial (Spain) — Not included — Main proceedings were administrative in character — Body subject to respect for the principles of unity of action and subordination to hierarchy.

(Art. 267 TFEU)

The Court of Justice of the European Union has no jurisdiction to rule on the request for a preliminary ruling submitted by the Secretario Judicial del Juzgado de Violencia sobre la Mujer Único de Terrassa (Registrar of the Single-Member Court dealing with matters involving violence against women, Terrassa, Spain). It follows from all the foregoing considerations that, in the context of the action for the recovery of fees at issue in the main proceedings, the Secretario Judicial (Registrar) does not constitute ‘a court or tribunal’, for the purposes of Article 267 TFEU, and that is so without it being necessary to examine whether that body meets the other criteria listed in paragraph 27 of this judgment, enabling that character to be determined.

In the present case, as regards, first, the ‘mandatory’ nature of the jurisdiction of the body making the reference, it must be observed that that is, in principle, lacking, given that the jurisdiction of the Secretario Judicial (Registrar) to determine actions for the recovery of fees, pursuant to Articles 34 and 35 of the LEC, is purely ancillary and discretionary. A court agent or lawyer may commence that action only in order to claim fees arising out of main court proceedings already concluded and in which he had acted for his client. Furthermore, in order to recover such fees, he is under no obligation, either in law or fact, to bring such an action, and can, on the contrary, freely choose between that action and court proceedings for a declaration or an injunction to pay.

It follows from those considerations that, as the body making the reference states in its third question and the Tribunal Constitucional (Constitutional Court) held in its judgment No 58/2016 of 17 March 2016, an action for the recovery of fees, such as that in the main proceedings, concerns proceedings that are administrative in nature, in the context of which the Secretario Judicial cannot be regarded as exercising a judicial function.

In that context, furthermore, it must be observed that the Secretario Judicial (Registrar) does not meet the criterion of independence set out in paragraph 27 above either.

In the present case, it is true that when the Secretario Judicial (Registrar) examines actions for the recovery of fees, he satisfies the internal aspect of the independence requirement, in that he performs his functions with full objectivity and impartiality as regards the parties to the case and their respective interests in it. However, it is also common ground that, during that examination, the Secretario Judicial (Registrar) does not satisfy the external aspect of that requirement, which requires there to be no hierarchical constraint or subordination to any other body that could give him orders or instructions.

As the Spanish Government stated in its written and oral observations, it is clear from a reading of Article 452(1), Article 465(6) and(8) and Article 467 of the LOPJ, and from Article 3 and Article 16(h) of Royal Decree 1608/2005 that, in the exercise of all his functions, the Secretario Judicial receives, and is required to comply with, instructions from his hierarchical superior, except when he is exercising his judicial authenticating functions, namely, when authenticating procedural and other documents, certifying facts that have procedural effects, or adopting measures for the organisation and management of the proceedings. It is thus clear from the case file available to the Court that, under Spanish law as it currently stands, the Secretario Judicial (Registrar) is entrusted with determining the action for the repayment of fees at issue in the main proceedings in observance of the principles of unity of action and subordination to hierarchy.

(see paras 31, 35, 36, 39-42, operative part)