Ramón Margarit Panicello v Pilar Hernández Martínez.
Date: 2017-02-16
27


In that regard, it must be recalled that, according to settled case-law, in order to determine whether a body making a reference is a ‘court or tribunal’ for the purposes 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 (see, inter alia, judgments of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 17, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 17).
28


Furthermore, in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, it must be determined in what specific capacity, judicial or administrative, 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 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 19 and the case-law cited).
32


It is true that the Court has ruled, in certain circumstances, on questions referred for a preliminary ruling which had been submitted by bodies making a reference whose jurisdiction, although discretionary, did not nevertheless depend on the agreement of the parties and whose decisions were binding on those parties, which is precisely the case for the Secretario Judicial (Registrar) in the context of actions for the recovery of fees (see order of 13 February 2014, Merck Canada, C‑555/13, EU:C:2014:92, paragraph 18 and the case-law cited; judgments of 12 June 2014, Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta, C‑377/13, EU:C:2014:1754, paragraph 28, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 23).
34


However, that is not the case as regards the action for recovery of fees at issue in the main proceedings, inasmuch as, under Article 34(2) and Article 35(2) of the LEC, that action is placed on the periphery of the national court system. First, the commencement of that action does not preclude, on grounds of lis pendens, an independent action being brought before a court of common law in proceedings for a declaration or an injunction to pay, nor is that grounds for the pleas that may be made, in parallel or subsequently before that court being inadmissible and, second, the order closing such an action appears to be a decision of an administrative nature, for, whilst being final, immediately enforceable and not amenable to appeal, it is not capable of acquiring the attributes of a judicial decision, in particular the force of res judicata (see, by analogy, judgment of 19 December 2012, Epitropos tou Elegktikou Synedriou, C‑363/11, EU:C:2012:825, paragraphs 27 and 28).
37


In that regard, it should be recalled that the requirement for a body making a reference to be independent is comprised of two aspects. The first, external, aspect presumes that the court exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever (see judgments of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 22, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19), and is thus protected against external interventions or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (see judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 51; of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 30; and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19).
38


The second, internal, aspect is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (see, inter alia, judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 52; of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 31; and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 20).
42


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. Consequently, the Secretario Judicial (Registrar) is not authorised to make a reference to the Court for a preliminary ruling. It is thus for the court with jurisdiction to order the enforcement of the amount due that is required to examine, if necessary of its own motion, whether there is any unfair contractual term in the contract concluded between an agent or lawyer and his client (see, to that effect, judgments of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 59, and of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 55), to which it falls, if necessary, to refer such a question to the Court.