1 This request for a preliminary ruling concerns the interpretation of the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU, Article 47 of the Charter of Fundament Rights of the European Union (‘the Charter’), and Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
2 The request has been made in proceedings between Mr Ramón Margarit Panicello, a lawyer, and Ms Pilar Hernández Martínez, his client, concerning the fees due for legal services provided to the latter in proceedings concerning the custody of her children.
3 Article 6(1) of Directive 93/13 provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
4 In accordance with Article 7 of that directive: ‘1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. 2. The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms. …’
5 Article 6(1) of Directive 2005/29 provides: ‘A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise: … (d) the price or the manner in which the price is calculated, or the existence of a specific price advantage; …’
6 Article 11(1) of that directive is worded as follows: ‘Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers. …’
7 Article 12 of the directive provides: ‘Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings provided for in Article 11: (a) to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case; and (b) to consider factual claims as inaccurate if the evidence demanded in accordance with (a) is not furnished or is deemed insufficient by the court or administrative authority.’
8 Ley Orgánica 6/1985 del Poder Judicial (Basic Law 6/85 on the Judiciary), of 1 July 1985 (BOE No 157, of 2 July 1985, p. 20632), as amended by Ley Orgánica 19/2003 (Basic Law 19/2003), of 23 December 2003 (BOE No 309, of 26 December 2003, p. 46025) (‘the LOPJ’), lays down the legal regime and the content of the functions of the Secretario Judicial (Registrar), called ‘Letrado de la administración de la justicia’ after the adoption of Ley Orgánica 7/2015 (Basic Law 7/2015), of 21 July 2015 (BOE No 174, of 22 July 2015, p. 61593).
9 Article 440 of the LOPJ provides that ‘Secretarios Judiciales [Registrars] are civil servants who are members of a single, national, senior legal service within the Ministry of Justice, and have the status of an authority in the exercise of their functions …’.
10 Article 446(1) of the LOPJ, which governs the grounds for abstention or recusal, provides that Secretarios Judiciales (Registrars) ‘must abstain from cases required to be heard by judges or magistrates and may be recused if they do not’.
11 Article 452(1) of the LOPJ defines the duties of the Secretarios Judiciales (Registrars) as follows: ‘In the exercise of their duties, Secretarios Judiciales shall observe the principles of legality and impartiality in every case, the principles of autonomy and independence in the exercise of their judicial authenticating functions, and the principles of unity of action and hierarchical subordination in the exercise of all their other duties under this law, the applicable procedural provisions and the basic law to which they are subject. The duties of Secretarios Judiciales may not be the object of a delegation or authorisation, without prejudice to Article 451(3).’
12 Article 465 of the LOPJ provides: ‘The following matters are within the power of Secretarios de Gobierno: … 6. Giving instructions to the Secretarios Judiciales in their respective territory … … 8. Issuing service circulars and instructions to Secretarios Judiciales of its territory … They may not … give particular instructions in relation to specific cases in which a Secretario Judicial acts for the purposes of authentification or in the exercise of its powers of organisation and management of proceedings.’
13 Article 467 of the LOPJ is worded as follows: ‘Under the direct authority of the Secretario de Gobierno, the Secretario Coordinador exercises the following functions: 1. Giving instructions to the Secretarios Judiciales of its territory for the proper functioning of the services entrusted to them. 2. Ensuring the correct implementation of the circulars and instructions issued by the Secretario de Gobierno to which it is subordinate.’
14 The Real Decreto 1608/2005 por el que se aprueba el Reglamento Orgánico del Cuerpo de Secretarios Judiciales (Royal Decree 1608/2005 approving the Basic Law on Secretarios Judiciales) of 30 December 2005 (BOE No 17, of 20 January 2006, p. 2527), also governs the legal regime for Secretarios Judiciales (Registrars).
15 Article 3(2) and (3) of the Royal Decree states: ‘(2) [Secretarios Judiciales] shall observe the principles of autonomy and independence in the exercise of their judicial authenticating functions. (3) In the exercise of case management functions … of the Court service, as with all the functions entrusted to them by [the LOPJ] and by this decree, with the exception of those referred to in the preceding paragraph, they shall act in accordance with the principles of unity of action and hierarchical subordination …’
16 Article 16 of that royal decree provides: ‘The Secretarios de Gobierno have the following competences in their scope of action: … (g) To give instructions to the Secretarios Judiciales of their respective territory … (h) Issue service circulars and instructions to the Secretarios Judiciales of their territory … They may not … give particular instructions concerning specific cases in which a Secretario Judicial acts for the purposes of authentification or in the exercise of its powers of organisation and management of proceedings. …’
17 The action for the recovery of fees is governed by Ley 1/2000 de Enjuiciamento Civil (Law 1/2000 on Civil Procedure) of 7 January 2000 (BOE No 7, of 8 January 2000, p. 575, ‘the LEC’). Since the amendment introduced by Ley 13/2009 de reforma de la legislación procesal para la implantación de la nueva Oficina judicial (Law 13/2009 amending procedural law in view of the establishment of a new registry) of 3 November 2009 (BOE No 266, of 4 November 2009, p. 92103), which entered into force on 4 May 2010, exclusive jurisdiction to determine such a case has been conferred on the Secretario Judicial (Registrar).
18 In particular, Article 34 of the LEC relating to the ‘Court agent’s account’ provides in paragraphs 1 and 2: ‘1. Where a court agent has to demand payment from his defaulting principal of the sums which that principal owes to him in respect of the fees and expenses which the agent has incurred in the matter, the court agent may submit to the Secretario Judicial for the place where he is established a detailed, substantiated account, declaring that the sums indicated therein which he claims are due to him but have not been paid. … 2. After the account has been submitted, the Secretario Judicial shall require the principal to pay that sum, together with costs of recovery, or to lodge an objection to the account within 10 days. Recovery of that sum shall be enforced if the principal fails to pay or to lodge an objection. Where the principal lodges an objection within that time limit, the Secretario Judicial shall examine the account, the procedural documents and the documents provided and shall make an order within 10 days determining the amount which must be paid to the court agent and warning that recovery will be enforced if payment is not made within 5 days of notification. The order referred to in the previous subparagraph shall not be subject to appeal but shall be wholly without prejudice to any judgment which may be given in subsequent ordinary proceedings.’
19 Article 35 of the LEC, entitled ‘Lawyers’ fees’, provides: ‘1. Lawyers may claim from the party whom they represent payment of the fees which have accrued in the matter, by submitting an itemised bill and stating formally that those fees are due to them and have not been paid. 2. Following submission of that claim, the Secretario Judicial shall require the debtor to pay the sum concerned, together with costs of recovery, or to lodge an objection to the account within 10 days. Recovery of that sum shall be enforced if the principal fails to pay or to lodge an objection. Where an objection is lodged within that time-limit on the ground that the fees are not due, the provisions of the second and third subparagraphs of Article 34(2) shall apply. Where an objection is lodged against fees on the ground that they are excessive, they shall first be reviewed in accordance with the provisions of Article 241 et seq., unless the lawyer establishes the existence of a prior written estimate accepted by the objecting party, and an order shall be made setting the amount due. Recovery of that sum shall be enforced if payment is not made within five days of notification. The order referred to above shall not be subject to appeal but shall be wholly without prejudice to any judgment which may be given in subsequent ordinary proceedings. 3. If the party who owes the fees does not lodge an objection within the time limit stipulated, an enforcement order shall be made for the total amount of the bill, plus costs of recovery.’
20 The order for reference states that Ms Hernández Martínez engaged the services of a lawyer, Mr Margarit Panicello, in order to represent her in proceedings concerning the custody of her children, which were pending since 2013 before the Juzgado de Violencia sobre la Mujer Único de Terrassa (Single-Member Court dealing with matters involving violence against women, Terrassa, Spain).
21 On 27 July 2015, Mr Margarit Panicello lodged an action before that court for the recovery of fees in the sum of EUR 1095.90 against Ms Hernández Martínez.
22 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), having jurisdiction to determine that action under Article 35 of the LEC, while observing that it did not appear that Mr Margarit Panicello had informed Ms Hernández Martínez of the estimated costs of his services before being engaged, held, nevertheless, that the applicable procedure, first, did not allow him to verify of his own motion whether there were any unfair terms in the contract concluded between the lawyer and his client or unfair commercial practices on the part of that professional as to the prior information about the estimated cost of his services and, second, restricted the possibility for the defendant client to produce evidence other than supporting documents or expert evidence to contest the amount claimed.
23 Thus, 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) is unsure whether that procedure is compatible with Directives 93/13 and 2005/29. He also has doubts as to whether the procedure is compatible with Article 47 of the Charter, in so far as the reasoned decision he adopts to close the action for the recovery of fees, if the debtor does not voluntarily pay the amount claimed and raises an objection, may not be the subject of a judicial appeal but enables the lawyer immediately to request the enforcement of the sum fixed.
24 In that context, in order to determine whether he is competent to refer a question for a preliminary ruling to the Court, 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) also wonders, as a preliminary matter, whether he may be regarded as ‘a court or tribunal’, for the purposes of Article 267 TFEU, given that, as a matter of national law, as is clear from Article 440 of the LOPJ, he is merely a civil servant within the Ministry of Justice, under the Justice Minister and the proceedings in which he exercises his duties have been classified as administrative rather than judicial by the Tribunal de Conflictos de Jurisdicción (Court dealing with conflicts of jurisdiction, Spain) in judgment No 4/2011 of 28 September 2011, regarding the action for the recovery of fees, and by the Tribunal Constitucional (Constitutional Court, Spain) in order No 163/2013 of 9 September 2013 and in judgment No 58/2016 of 17 March 2016, concerning Ley 29/1998 reguladora de la Jurisdicción Contencioso-administrativa (Law 29/1998 on the Jurisdiction of the Administrative Court) of 13 July 1998 (BOE No 167, of 14 July 1998, p. 23516).
25 In those circumstances, 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) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Are Articles 34, 35, 207(2) to (4) of the [LEC], which govern the administrative procedure for recovery of unpaid fees, incompatible with Article 47 of the [Charter] in that they preclude the possibility of judicial review? If so, in the context of the procedure provided for in Articles 34 and 35 of the [LEC], is a Secretario Judicial [(Registrar)] a “court or tribunal” for the purposes of Article 267 of the TFEU? (2) Are Articles 34 and 35 of the [LEC] incompatible with Articles 6(1) and 7(2) of Directive 93/13 and Articles 6(1)(d), 11 and 12 of Directive 2005/29, inasmuch as they preclude any examination ex officio of possibly unfair terms or unfair commercial practices in contracts concluded between lawyers and natural persons acting for purposes outside their trade, business or profession? (3) Are Articles 34 and 35 of the [LEC] incompatible with Articles 6(1) and 7(2) of, and point 1(q), [of the Annex to] Directive [93/13], inasmuch as they preclude the production of evidence for the purpose of resolving the dispute in the administrative procedure for recovery of unpaid fees?’
26 It must be examined at the outset, as the first question asks, whether a Secretario Judicial (Registrar) constitutes a ‘court or tribunal’ for the purposes of Article 267 TFEU and whether, therefore, he is entitled to refer a request for a preliminary ruling to the Court.
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).
29 In the case in the main proceedings, the order for reference submitted to the Court states that the Secretario Judicial (Registrar) is, in accordance with Article 440 of the LOPJ, a civil servant who is a member of a single, national, senior legal body in the service of the administration of justice and answerable to the Minister of Justice.
30 Since the reform introduced by Law 13/2009, the Spanish legislature has conferred on the Secretario Judicial (Registrar) exclusive competence to decide actions for the recovery of fees, such as that in the main proceedings, governed by Articles 34 and 35 of the LEC, which guarantees for agents and lawyers the rapid determination of the enforceability of certain specific fees and the delivery of an enforcement order permitting the immediate recovery thereof, when agents or lawyers produce documents that manifestly demonstrate that the claim is well founded and the amount of the unpaid fees.
31 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.
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).
33 However, it is common ground that those bodies making a reference were classified by the Court as ‘a court or tribunal’ within the meaning of Article 267 TFEU, and exercised their functions in accordance with the requirements set out in paragraph 28 above, in the context of proceedings of a clear judicial nature.
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).
35 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.
36 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.
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).
39 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.
40 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.
41 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.
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.
43 It should, therefore, be declared that the Court 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).
44 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.