Roda Golf & Beach Resort SL.
Date: 2009-06-25
33. It must be recalled that Article 234 EC, which is applicable in accordance with Title IV of Part Three of the EC Treaty pursuant to Article 68 EC, does not make the reference to the Court subject to there having been an inter partes  hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling (Case C‑18/93 Corsica Ferries  [1994] ECR I‑1783, paragraph 12).
34. However, it is clear from Article 234 EC that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, orders in Case 138/80 Borker  [1980] ECR 1975, paragraph 4; Case 318/85 Greis Unterweger  [1986] ECR 955, paragraph 4; and judgments in Case C‑111/94 Job Centre  [1995] ECR I‑3361, paragraph 9, and Case C‑178/99 Salzmann  [2001] ECR I‑4421, paragraph 14).
35. Thus, when it makes an administrative decision without being required to decide a legal dispute, the referring body cannot be regarded as exercising a judicial function. Such is the case, for example, when it determines an application for registration of a company according to a procedure, the object of which is not the annulment of a measure adversely affecting the applicant (see, Job Centre , paragraph 11, Salzmann , paragraph 15, and Case C‑182/00 Lutz and Others  [2002] ECR I‑547, paragraph 14; see, also, to that effect, Case C‑210/06 Cartesio  [2008] ECR I‑0000, paragraph 57).
36. In contrast, a court hearing an appeal which has been brought against a decision of a lower court responsible for maintaining a register, rejecting such an application, and which seeks the setting‑aside of that decision, which allegedly adversely affects the rights of the applicant, is called upon to give judgment in a dispute and is exercising a judicial function ( Cartesio , paragraph 58). Accordingly, in such a case, the appellate court must, in principle, be regarded as a court or tribunal within the meaning of Article 234 EC (see for similar situations, inter alia, Case C-300/01 Salzmann  [2003] ECR I‑4899; Case C‑411/03 SEVIC Systems  [2005] ECR I‑10805; Case C‑117/06 Möllendorf and Others  [2007] ECR I‑8361; and Cartesio ).
46. It must be recalled that the purpose of Regulation No 1348/2000 is to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States. However, that regulation does not go so far as to define in a precise and uniform manner the notion of extrajudicial documents.
47. Under Article 17(b) of that regulation the Commission is responsible for drawing up, in concert with the Member States, a glossary mentioning the acts which may be served. That glossary states, in its introduction, that the information thereby communicated by the Member States is for reference only. Its content shows however that the Member States, under the supervision of the Commission, have defined in different ways the documents which they consider may be served under that regulation. However, in spite of the existence of the glossary, the fact remains that the concept of ‘extrajudicial document’, within the meaning of Article 16 of Regulation No 1348/2000, must be regarded as a Community law concept.
48. The objective pursued by the Treaty of Amsterdam of creating an area of freedom, security and justice, thereby giving the Community a new dimension, and the transfer, from the EU Treaty to the EC Treaty, of the body of rules enabling measures in the field of judicial cooperation in civil matters having cross-border implications to be adopted testify to the will of the Member States to anchor such measures firmly in the Community legal order and thus to lay down the principle that they are to be interpreted autonomously (Case C‑443/03 Leffler  [2005] ECR I‑9611, paragraph 45).
49. Furthermore, the choice of the form of a regulation, rather than that of a directive initially proposed by the Commission (see, OJ 1999 C 247 E, p. 11), shows the importance which the Community legislature attaches to the direct applicability of the regulation’s provisions and their uniform application ( Leffler , paragraph 46).
50. It follows that the concept of ‘extrajudicial document’ within the meaning of Article 16 of Regulation No 1348/2000 is a Community law concept.
The scope of Regulation No 1348/2000
53. It must be borne in mind that Article 61(c) EC is the legal basis for Regulation No 1348/2000. That provision enables the measures mentioned in Article 65 EC to be adopted in order to establish progressively an area of freedom, security and justice. Those measures, which fall within the area of judicial cooperation in civil matters having cross-border implications, are intended, inter alia, in accordance with Article 65 EC, to improve and simplify the system for cross-border service of judicial and extrajudicial documents in so far as necessary for the proper functioning of the internal market.
54. Similarly, recital 2 of the preamble to Regulation No 1348/2000 states that 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.
55. Article 65 EC and Regulation No 1348/2000 thus intend to establish a system for intra-Community service the purpose of which is the proper functioning of the internal market.
56. Taking account of that purpose, the judicial cooperation referred to by that article and the regulation cannot be limited to legal proceedings alone. That cooperation 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.
57. Contrary to the submissions of the Spanish, Polish and Slovak Governments, the fact that recital 6 of Regulation No 1348/2000 mentions only the efficiency and rapidity of legal proceedings is not sufficient to remove from the scope of that regulation all documents which are unconnected to legal proceedings. That recital refers only to one of the corollaries of the main purpose of the regulation. The mention, in that recital, of extrajudicial documents in the context of legal proceedings must therefore be understood as meaning that the service of such a document may be required in the course of legal proceedings.
58. Furthermore, the document concerned in the main proceedings, transmitted to the clerk of the referring court in order to be served, was drawn up by a notary, as appears in paragraph 20 of this judgment, and constitutes as such an extrajudicial document within the meaning of Article 16 of Regulation No 1348/2000.
59. As regards the concerns expressed by the Spanish and Polish Governments, that a broad definition of the concept of extrajudicial document would place an excessive burden on the resources of the national courts, it must be stated that the obligations with regard to service which derive from Regulation No 1348/2000 are not necessarily the responsibility of the national courts. The designation of the transmitting agencies and the receiving agencies which, under Article 2(1) and (2) of that regulation may be ‘public officers, authorities or other persons’ is a matter for the Member States. Accordingly, the latter are free to designate as transmitting or receiving agencies for the purpose of serving judicial and extrajudicial documents bodies other than the national courts.