CELEX: 62020CO0387
Language: en
Date: 2021-09-01 00:00:00
Title: Order of the Court (Sixth Chamber) of 1 September 2021.#Proceedings brought by OKR.#Request for a preliminary ruling from the Notariusz w Krapkowicach Justyna Gawlica - Krapkowice.#Reference for a preliminary ruling – Article 53(2) of the Rules of Procedure of the Court of Justice – Article 267 TFEU – Notary acting as a deputy for another notary – Definition of ‘court or tribunal’ – Criteria – Inadmissibility of the request for a preliminary ruling.#Case C-387/20.

ORDER OF THE COURT (Sixth Chamber)
   1 September 2021 (
         *1
      )
   (Reference for a preliminary ruling – Article 53(2) of the Rules of Procedure of the Court of Justice – Article 267 TFEU – Notary acting as a deputy for another notary – Definition of ‘court or tribunal’ – Criteria – Inadmissibility of the request for a preliminary ruling)
   In Case C‑387/20,
   REQUEST for a preliminary ruling under Article 267 TFEU from a Zastępca notarialny w Krapkowicach (notary acting as a deputy for another notary and practising in Krapkowice, Poland), made by decision of 3 August 2020, received at the Court on 12 August 2020, in the proceedings brought by
   
      OKR
   
   THE COURT (Sixth Chamber),
   composed of L. Bay Larsen, President of the Chamber, C. Toader (Rapporteur) and N. Jääskinen, Judges,
   Advocate General: M. Campos Sánchez-Bordona,
   Registrar: A. Calot Escobar,
   having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,
   makes the following
   
      Order
   
   
            1
         
         
            This request for a preliminary ruling concerns the interpretation of Articles 22 and 75 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107) (‘the Succession Regulation’).
         
      
            2
         
         
            The request has been made in proceedings brought by OKR, a Ukrainian national residing in Poland and co-owner of a residential property situated in that Member State, against the refusal by a Zastępca notarialny w Krapkowicach (notary acting as a deputy for another notary and practising in Krapkowice, Poland) (‘the Zastępca notarialny’) to draw up a notarial will containing a clause stipulating that the law applicable to the succession at issue in the main proceedings would be Ukrainian law.
         
      
      Legal context
   
   
      
         The Succession Regulation
      
   
   
            3
         
         
            Article 22 of the Succession Regulation, headed ‘Choice of law’, provides, in paragraphs 1 and 2 thereof:
            ‘1.   A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
            A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.
            2.   The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.’
         
      
            4
         
         
            Article 75 of that regulation, headed ‘Relationship with existing international conventions’, provides, in paragraph 1 thereof, that ‘this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation’.
         
      
      
         Polish law
      
   
   
            5
         
         
            Under Article 81 of the ustawa – Prawo o notariacie (Law on Notaries) of 14 February 1991 (Dz. U. No 22, item 91), in the version applicable to the case in the main proceedings (‘the Law on Notaries’), ‘a notary shall refuse to perform an unlawful notarial act’.
         
      
            6
         
         
            Article 82 of the Law on Notaries provides:
            ‘A person who has had their request to have a notarial act performed refused shall be informed of his or her right to lodge a complaint in respect of that refusal and of the procedure for doing so. That person may, within one week from the date of refusal to perform the notarial act, make a written request that the grounds for refusal be drawn up and notified to him or her. The notary shall draw up those grounds within one week from the date of receipt of the request.’
         
      
            7
         
         
            Under Article 83 of the Law on Notaries:
            ‘§ 1.   Any interested party may, within one week from the date of notification of the grounds for refusal, or, where he or she has not requested such notification within the period prescribed for notification of the grounds for refusal, from the date on which he or she was informed of the refusal, lodge a complaint in respect of the refusal to perform the notarial act before the competent Sąd Okręgowy [(Regional Court, Poland)], having regard to the place of establishment of the office of the notary who refused to perform the notarial act. The complaint shall be brought through that notary.
            § 1a.   The notary referred to in paragraph 1 must respond to the complaint within one week and must submit his or her views to the court in addition to the complaint, and must also notify those views to the interested party, unless he or she has already drawn up the grounds for refusal and notified them to that interested party.
            § 1b.   The court shall consider the complaint at a hearing, duly applying the provisions of the Kodeks postępowania cywilnego (Code of Civil Procedure) on non-contentious proceedings.
            § 2.   The notary may, if he or she considers the complaint to be well founded, perform the notarial act, in which case he or she shall take no further action regarding the complaint.’
         
      
      The dispute in the main proceedings and the questions referred for a preliminary ruling
   
   
            8
         
         
            OKR asked the Zastępca notarialny to draw up a notarial will containing a clause stipulating that the law applicable to the succession at issue in the main proceedings would be Ukrainian law.
         
      
            9
         
         
            The Zastępca notarialny refused to perform that notarial act, on the basis of Articles 22 and 75 of the Succession Regulation and the umowa bilateralna o pomocy prawnej i stosunkach prawnych w sprawach cywilnych i karnych (bilateral agreement on legal assistance and legal relationships in civil and criminal matters) concluded between Poland and Ukraine on 24 May 1993.
         
      
            10
         
         
            OKR brought a complaint, through the Zastępca notarialny, against the refusal to perform the requested notarial act before the Sąd Okręgowy w Opolu (Regional Court, Opole, Poland), pursuant to Article 83 § 1 of the Law on Notaries.
         
      
            11
         
         
            In the present proceedings, the Zastępca notarialny argues that he is required to review, at first instance, his refusal decision finding that the notarial act which he had been requested to perform was unlawful. The Zastępca notarialny states that he cannot effectively carry out that review if, in a case which has as its main element the interpretation of EU law, as here, he cannot submit a request for a preliminary ruling to the Court.
         
      
            12
         
         
            As regards his own classification as a ‘court or tribunal’ within the meaning of Article 267 TFEU, the Zastępca notarialny states, in essence, that he is an impartial and independent body vis-à-vis the parties who request that he perform a notarial act, that the legal protection he provides has binding effect and that the review he carries out of his refusal to perform a notarial act is also ongoing in nature.
         
      
            13
         
         
            In those circumstances, the Zastępca notarialny decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
            
                     ‘(1)
                  
                  
                     Must Article 22 of [the Succession Regulation] be interpreted as meaning that a person who is not a citizen of the European Union is also entitled to choose the law of his or her native country as the law governing all matters relating to succession?
                  
               
                     (2)
                  
                  
                     Must Article 75, in conjunction with Article 22, of [the Succession Regulation] be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?
                     and in particular:
                     
                              –
                           
                           
                              must a bilateral agreement with a third country expressly exclude the choice of a specific law and not merely govern the lex successionis using objective connecting factors in order for its provisions to take precedence over Article 22 of [the Succession Regulation]?
                           
                        
                              –
                           
                           
                              is the freedom to choose the law governing succession and to make the applicable law uniform by making a choice of law – at least to the extent determined by the EU legislature in Article 22 of [the Succession Regulation] – one of the principles underlying judicial cooperation in civil and commercial matters in the European Union, which may not be infringed even where bilateral agreements with third countries apply which take precedence over [the Succession Regulation]?’
                           
                        
               
      
      Procedure before the Court
   
   
            14
         
         
            By decision of the President of the Court of Justice of 2 October 2020, adopted after hearing the Advocate General and the Judge-Rapporteur, a request for information was sent to the Zastępca notarialny. By that request, the Zastępca notarialny was asked to clarify certain matters relating to his duties in the context of the procedure which has given rise to the dispute in the main proceedings in order to determine whether he has, in the present case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU.
         
      
            15
         
         
            In his reply of 16 October 2020, the Zastępca notarialny indicates, with regard to his standing as a third party before the Sąd Okręgowy (Regional Court), that in those proceedings the parties are not referred to as ‘applicant’ and ‘defendant’, but only as ‘parties to the proceedings’. Concerning whether or not notaries are recognised as being ‘parties to the proceedings’, he states that the practice varies both among the various regional courts and among the various judicial panels within the same division of a given court. In any event, the Zastępca notarialny states that even where notaries are admitted by the courts as ‘parties to the proceedings’, they also have a duty on account of their status as members of a ‘profession based on public trust’ and are required to act in the public interest and to be independent and impartial.
         
      
            16
         
         
            As to his internal independence and his standing as a ‘third party’ in relation to the authority which adopts the decision that may form the subject matter of proceedings, the Zastępca notarialny states – relying, respectively, on the judgments of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17, paragraph 61), and of 16 September 2020, Anesco and Others (C‑462/19, EU:C:2020:715, paragraph 40) – that at no stage in the preventive administration of justice do notaries handle cases in which they would be parties to the proceedings and that at no time do they have a personal interest in the outcome of those cases; breach of the impartiality obligation is a serious disciplinary offence. These are additional procedures for the protection of the rule of law which do not place the authority responsible for the case on the same footing as the parties to the proceedings.
         
      
            17
         
         
            In addition, the Zastępca notarialny remarks that even though the principle of the freedom to choose a notary for the purpose of having a notarial act performed applies to the parties to succession proceedings, any complaint against a notary’s refusal to perform the requested notarial act must necessarily be brought before the notary who issued that refusal and who is required to take the measures provided for in Article 83 §§ 1a and 2 of the Law on Notaries.
         
      
      Admissibility of the request for a preliminary ruling
   
   
            18
         
         
            Under Article 53(2) of the Rules of Procedure of the Court, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
         
      
            19
         
         
            It is appropriate to apply that provision in the present case.
         
      
            20
         
         
            According to the Court’s settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court and national courts by means of which the Court provides national courts with the criteria for the interpretation of EU law which they need in order to decide the disputes before them (order of 25 April 2018, Secretaria Regional de Saúde dos Açores, C‑102/17, EU:C:2018:294, paragraph 23 and the case-law cited).
         
      
            21
         
         
            It follows that, in order to be able to refer a matter to the Court in the context of the preliminary ruling procedure, the referring body must be capable of being classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU, this being a matter for the Court to verify.
         
      
            22
         
         
            In order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 16 February 2017, Margarit Panicello, C‑503/15, EU:C:2017:126, paragraph 27 and the case-law cited).
         
      
            23
         
         
            Furthermore, in order to establish whether the national body concerned is to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, it must be determined in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court, in order for it to be ascertained whether there is a case pending before it and whether it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, to that effect, judgment of 16 February 2017, Margarit Panicello, C‑503/15, EU:C:2017:126, paragraph 28 and the case-law cited).
         
      
            24
         
         
            When it is not required to decide a legal dispute, the referring body, even if it satisfies the other conditions laid down in the Court’s case-law, cannot be regarded as exercising a judicial function (judgment of 14 June 2001, Salzmann, C‑178/99, EU:C:2001:331, paragraph 15, and order of 24 March 2011, Bengtsson, C‑344/09, EU:C:2011:174, paragraph 19 and the case-law cited).
         
      
            25
         
         
            In this case, it is apparent from all the evidence in the file that the Zastępca notarialny is not required to decide a legal dispute and is not called upon to give a decision of a judicial nature, with the result that he does not exercise judicial functions.
         
      
            26
         
         
            Under Article 81 of the Law on Notaries, notaries are required to assess the lawfulness of the notarial act they have been asked to perform and, if they find that that act is not lawful, they must refuse to perform it. Article 83 § 1 provides that that refusal may be the subject of a complaint before the ordinary courts, which is to be brought through the notary who adopted the refusal decision. At that first stage of the procedure, the notary has the power to review his or her own refusal decision.
         
      
            27
         
         
            As is apparent from Article 83 §§ 1a and 2 of the Law on Notaries, and as the Polish Government confirmed in its written observations, in proceedings against a notary’s refusal to perform a notarial act, the notary must either perform the notarial act if he or she considers the complaint to be well founded, thereby correcting his or her refusal decision, or maintain his or her position and refer the case to the Sąd Okręgowy (Regional Court) for it to adjudicate on the complaint, submitting his or her views to that court.
         
      
            28
         
         
            Consequently, the notary does not take any decision of a judicial nature either when he or she confirms his or her refusal decision or when he or she considers the complaint to be well founded.
         
      
            29
         
         
            As the European Commission remarked in its written observations, the possibility of correcting the refusal decision does not bear the hallmarks of a procedure intended to lead to a decision of a judicial nature. In the assessment set out in paragraphs 26 and 27 of this order, the notary is to review his or her own decision on the lawfulness of the notarial act, as requested by the person bringing the complaint before the ordinary courts, in the light of the arguments put forward by that person following the refusal decision.
         
      
            30
         
         
            The finding that, in Poland, notaries do not carry out judicial functions is not called into question by the fact that, under Polish procedural law, notaries act as bodies of ‘first instance’. As has been pointed out in paragraph 22 of this order, the question whether the referring body is a ‘court or tribunal’ within the meaning of Article 267 TFEU is a matter for EU law alone and no account is to be taken of national categorisations in that regard. Furthermore, it is apparent from the file that, when reviewing his or her refusal to perform a notarial act, a notary is not called on to adjudicate on a dispute but must redetermine whether the request for performance of that notarial act satisfies the conditions laid down in the legislation relating to the performance of the requested act. That intermediate procedure is in the nature of an administrative complaint, in which the notary is called upon to reconsider his or her own decision and, where appropriate, to perform the requested notarial act before the matter is brought before the courts.
         
      
            31
         
         
            That finding is also not called into question by the fact that Article 3(2) of the Succession Regulation states that the term ‘court’ within the meaning of that regulation encompasses not only judicial authorities but also all other authorities and legal professionals with competence in matters of succession which exercise judicial functions and which satisfy the conditions laid down by that provision (judgment of 16 July 2020, E.E. (Jurisdiction and law applicable to inheritance), C‑80/19, EU:C:2020:569, paragraph 50 and the case-law cited), since the term thus defined in Article 3(2) of that regulation has a broader meaning than the same term in Article 267 TFEU.
         
      
            32
         
         
            Furthermore, in carrying out that review of his or her refusal decision, a notary is not a ‘third party’ in relation to the authority which adopted the contested decision, which is decisive in order for the body in question to be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU, in accordance with the Court’s settled case-law (judgments of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 62 and the case-law cited, and of 16 September 2020, Anesco and Others, C‑462/19, EU:C:2020:715, paragraph 37 and the case-law cited). That interpretation is not inconsistent with the fact that, according to the Zastępca notarialny, even where notaries are admitted by the courts as ‘parties to the proceedings’, they have a duty on account of their status as members of a profession based on public trust and are required to act in the public interest.
         
      
            33
         
         
            Furthermore, as regards the Zastępca notarialny’s argument that notaries cannot effectively carry out the review task conferred on them unless, in a case which has as its main element the interpretation of EU law, they are able to submit requests for a preliminary ruling, it is settled case-law that the existence of complaints before administrative courts against decisions ensures, on any view, the effectiveness of the mechanism of the reference for a preliminary ruling provided for in Article 267 TFEU and the uniform interpretation of EU law that that Treaty provision seeks to ensure (see, to that effect, judgment of 31 January 2013, Belov, C‑394/11, EU:C:2013:48, paragraph 52).
         
      
            34
         
         
            In the light of all the foregoing considerations, the Zastępca notarialny cannot, for the purposes of the present request for a preliminary ruling, be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU.
         
      
            35
         
         
            It follows that the request for a preliminary ruling submitted by the Zastępca notarialny must be dismissed as manifestly inadmissible.
         
      
      Costs
   
   
            36
         
         
            Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring body, the decision on costs is a matter for that body.
         
       
         
            On those grounds, the Court (Sixth Chamber) hereby orders:
         
       
            
               
                  The request for a preliminary ruling from a Zastępca notarialny w Krapkowicach (notary acting as a deputy for another notary and practising in Krapkowice, Poland) is manifestly inadmissible.
               
            
          
            
               
                  [Signatures]
               
            
         (
         *1
      )	Language of the case: Polish.