Tecom Mican SL and José Arias Domínguez.
Date: 2015-11-11
25. On the following day, Tecom brought an application for review of that refusal, claiming that, according to the judgment in Roda Golf & Beach Resort (C‑14/08, EU:C:2009:395), Article 16 of Regulation No 1393/2007 does not require legal proceedings to have been brought for service to be effected of an extrajudicial document such as the one at issue in the main proceedings.
29. The Juzgado de Primera Instancia No 7 de Las Palmas de Gran Canaria (Court of First Instance No 7, Las Palmas de Gran Canaria) pointed out that, according to the judgment in Roda Golf & Beach Resort  (C‑14/08, EU:C:2009:395), an ‘extrajudicial document’ is undoubtedly an independent concept of EU law and that the judicial cooperation referred to in that article and Regulation No 1393/2007 ‘may manifest itself both in the context of and in the absence of legal proceedings’. However, that court also stated that it had no means of determining whether a document that was neither issued nor drafted by a public authority or official could be considered to be ‘extrajudicial’.
32. In order to provide a useful answer to those questions, it should be recalled at the outset that, as regards the concept of an ‘extrajudicial document’ referred to in Article 16 of Regulation No 1348/2000, which was repealed and replaced by Regulation No 1393/2007, the Court has already held that it must be regarded as an autonomous concept of EU law (judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraphs 49 and 50). As the Advocate General has also stated in point 46 of his Opinion, there is no reason for not interpreting by analogy the same concept of an ‘extrajudicial document’ as referred to in Article 16 of Regulation No 1393/2007.
33. In that respect, it should also be noted, as the Court has already held, that the concept of an ‘extrajudicial document’ must be given a broad definition and cannot be limited to documents that are connected to legal proceedings alone; it may include documents drawn up by notaries (see, to that effect, judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraphs 56 to 59).
35. Since the actual wording of Article 16 of Regulation No 1393/2007 does not specify its scope, in accordance with settled case-law of the Court, regard must, for that purpose, be had to the context of Article 16 of the regulation, the objectives pursued by the regulation and, where relevant, the preparatory work leading to its adoption (see judgments in Drukarnia Multipress , C‑357/13, EU:C:2015:253, paragraph 22, and Bund für Umwelt und Naturschutz Deutschland , C‑461/13, EU:C:2015:433, paragraph 30).
37. With this in mind, the Court also notes that, according to recital 2 in the preamble to Regulation No 1393/2007, that regulation aims to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States, in order to reinforce the proper functioning of the internal market (see, to that effect, judgments in Alder , C‑325/11, EU:C:2012:824, paragraphs 29 and 34, and Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraph 54).
38. Nevertheless, since no conclusive guidance arises from those reflections on the scope of the concept of an ‘extrajudicial document’, it is therefore necessary to consider other relevant material in the preparatory work leading to the adoption of Regulation No 1393/2007, and, in particular, in the context of developments in the field of judicial cooperation in civil matters of which it forms a part (see, to that effect, judgment in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 50).
42. It is true that Regulation No 1348/2000 did not provide a precise and uniform definition of the concept of ‘extrajudicial documents’ either, and, under Article 17(b) of that regulation, the Commission was merely entrusted with the task of drawing up, in concert with the Member States, a glossary mentioning the acts which may be served. The information thereby communicated by the Member States was, in fact, for reference only (see judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraphs 46 and 47).
43. It is, however, clear from that glossary that, under the supervision of the Commission, the Member States had in various ways defined the documents which they considered could be served pursuant to that regulation (see judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraph 47) including in the category of extrajudicial documents, as the Advocate General has stated in point 36 of his Opinion, not only documents emanating from a public authority or official, but also private documents of specific importance within a given legal system.
50. In that regard, suffice it to note that the wording of Article 1(1) of Regulation No 1393/2007 makes clear that that regulation is applicable in civil and commercial matters ‘where a[n] … extrajudicial document has to be transmitted from one Member State to another for service there’ (judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 20).
51. Against that background, as the Court has already held, Regulation No 1393/2007 provides for only two situations in which the service of a document between Member States falls outside its scope and cannot be carried out by the means put in place by it, namely, first, where the permanent or habitual residence of the addressee is unknown and, second, where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place (see judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 24).
54. In the second place, as regards the consequences related to the case in which an applicant effects an earlier service pursuant to the detailed rules laid down by Regulation No 1393/2007, the Court notes that, by virtue of Article 16 thereof, the regulation lays down various means of transmission applicable to the service of extrajudicial documents exhaustively (see judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 32).
55. In particular, Article 2 of Regulation No 1393/2007 provides that the service of judicial documents is, in principle, to be effected between the transmitting agencies and the receiving agencies designated by the Member States (judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 30).
56. In addition, Regulation No 1393/2007 provides, in Section 2, for other means of transmission, such as transmission by consular or diplomatic channels, as well as service by diplomatic or consular agents, service by postal services, or even, on request by any interested party, directly through the judicial officers, officials or other competent persons of the Member State addressed (judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 31).
57. Against that background, it must nevertheless be made clear, first, that Regulation No 1393/2007 did not establish a hierarchy between the various means of transmission that it put in place (judgments in Alder , C‑325/11, EU:C:2012:824, paragraph 31, and Plumex , C‑473/04, EU:C:2006:96, paragraph 20).
59. It follows from the foregoing considerations that, as regards the service of extrajudicial documents, an applicant is perfectly entitled not only to choose any of the means of transmission laid down by Regulation No 1393/2007, but also to resort, simultaneously or successively, to two or more of the methods of service which he deems the most suitable or appropriate in the light of the circumstances of the case (see, to that effect, judgment in Plumex , C‑473/04, EU:C:2006:96, paragraphs 21, 22 and 31).
63. In the first place, as regards cross-border implications, suffice it to recall that Regulation No 1393/2007 is a measure which, as set out in Articles 61(c) EC and 65 EC, falls precisely within the area of judicial cooperation in civil matters that have cross-border implications (see, to that effect, judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraph 53).
66. In the second place, as regards the proper functioning of the internal market, it is common ground that that element constitutes the primary objective of the system of service laid down by Regulation No 1393/2007, as is set out in recital 2 in the preamble thereto (see, to that effect, judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraph 55).