1. 

This request for a preliminary ruling concerns the interpretation of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. ( 2 )

2. 

It was submitted in the context of a dispute between Ibrica Zulfikarpašić, a lawyer established in Croatia, and Slaven Gajer, who is also domiciled in Croatia, regarding the certification as a European Enforcement Order, within the meaning of Regulation No 805/2004, of a writ of execution issued by a notary based on an authentic document.

3. 

The Općinski sud u Novom Zagrebu (Municipal Court of New Zagreb, Croatia) essentially enquires whether a notary who, in accordance with Croatian law, has issued a definitive and enforceable writ of execution based on an authentic document has the power to certify it as a European Enforcement Order where it has not been opposed. If the answer is no, the referring court asks whether a national court can carry out that certification where the writ of execution concerns an uncontested claim.

4. 

This case affords the Court the opportunity to provide useful clarification on the scope of the concepts of ‘judgment’ and ‘court’, within the meaning of Regulation No 805/2004, by deciding, in particular, whether a notary empowered by national law to issue enforceable orders may be classified as a ‘court’.

5. 

First of all, however, a preliminary issue arises as to the admissibility of the request for a preliminary ruling, as the wording of the decision to refer reveals that the parties to the main proceedings both reside in Croatia, with the result that the situation could, prima facie, be classified as ‘purely internal’ and therefore be regarded as not falling within the scope of EU law.

6. 

In this Opinion, I will submit, in the first place, that this request for a preliminary ruling is admissible even though the main proceedings are between an applicant and a defendant who both reside in the Republic of Croatia. Although the purpose of certification as a European Enforcement Order under Regulation No 805/2004 is to permit the recognition and enforcement of a judgment in a Member State other than the Member State where it was delivered, the admissibility of an application for certification filed with the court of the Member State of origin is not conditional on the creditor proving that the case is a cross-border case.

7. 

I will submit, in the second place, that an enforcement title such as a writ of execution issued by a notary based on an authentic document constitutes a judgment within the meaning of Article 4(1) of Regulation No 805/2004, provided that the notary with power to issue that writ adjudicates, in the exercise of that specific function, as a court, which requires him to offer guarantees as to his independence and impartiality and to decide on his own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority. Subject to enquiries to be made by the national court, particularly as regards fulfilment of the requirements of independence and impartiality, I will argue that notaries with the power to issue writs of execution can be classified as a ‘court’.

8. 

In the third place, I will conclude that such notaries, who constitute the ‘court of origin’ within the meaning of Article 4(6) and Article 6(1) of Regulation No 805/2004, have the power to certify as European Enforcement Orders the writs they issue which have become enforceable in the absence of opposition from the debtor.

9.

Recitals 5, 7 and 20 of Regulation No 805/2004 state:

…

…

10.

Article 1 of Regulation No 805/2004, entitled ‘Subject matter’, states:

‘The purpose of this Regulation is to create a European Enforcement Order for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement.’

11.

Article 3 of that regulation, entitled ‘Enforcement titles to be certified as a European Enforcement Order’, provides, in paragraph 1:

‘This Regulation shall apply to judgments, court settlements and authentic instruments on uncontested claims.

A claim shall be regarded as uncontested if:

12.

Article 4 of that regulation, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation, the following definitions shall apply:

…

13.

As provided in Article 31 of the Ovršni zakon (Law on Enforcement), ( 4 ) in the version in force at the time of the facts in the main proceedings:

‘1.   Under this law, an authentic document means an invoice, a bill of exchange or a cheque protest, accompanied, where appropriate, by return invoices in order to establish a claim, an official document, an extract from accounting records, a legalised private document or any document considered to be an official document under specific rules. The calculation of interest is also regarded as an invoice.

2.   An authentic document shall be enforceable if it includes reference to the identity of the creditor and of the debtor, as well as the subject matter, nature, scope and date of enforcement of the pecuniary obligation.

3.   In addition to the information referred to in paragraph 2 of this article, an invoice sent to a natural person who does not carry on a registered activity must inform the debtor that, in the event of non-performance of the pecuniary obligation that has fallen due, the creditor may apply for enforcement based on an authentic document.

…’

14.

Article 278 of the Law on Enforcement provides that ‘notaries shall decide on applications for enforcement based on authentic documents in accordance with the provisions of this law’.

15.

Article 357 of the Law on Enforcement states that the following have the power to certify judgments, court settlements and authentic instruments as European Enforcement Orders: ‘the courts, administrative authorities, notaries and natural and legal persons associated with public authorities who are authorised to issue enforceable copies of European Enforcement Orders handed down by a national court which relate to uncontested claims’.

16.

Article 358(4) of the Law on Enforcement provides that ‘if the notary finds that the conditions for the issue of a [European Enforcement Order] certificate are not fulfilled, he shall forward the application for certification, together with a copy of the relevant instruments or documents, to the municipal court of the place where the notary has his office in order to decide on the application’.

17.

Mr Zulfikarpašić, a lawyer, concluded an engagement agreement with Mr Gajer, his client, and thereafter issued an invoice which remains unpaid.

18.

On 12 February 2014, Mr Zulfikarpašić succeeded in having a notary issue a definitive writ of execution based on that invoice, considered to be an ‘authentic document’.

19.

On 13 November 2014, Mr Zulfikarpašić applied to the notary for certification of that writ as a European Enforcement Order, within the meaning of Regulation No 805/2004, so that he could initiate enforcement proceedings to recover his claim.

20.

After finding that the conditions required for the issue of the certificate had not been met, the notary — in accordance with the provisions of Article 358(4) of the Law on Enforcement — referred the case to the Općinski sud u Novom Zagrebu (Municipal Court of New Zagreb). According to that court, the notary found, in particular, that while Article 4(7) of Regulation No 805/2004 provides that the term ‘court’ includes the Swedish enforcement service, no comparable provision places Croatian notaries on the same footing as a court within the meaning of that regulation.

21.

Since the Općinski sud u Novom Zagrebu (Municipal Court of New Zagreb) was unsure whether the Law on Enforcement was compatible with Regulation No 805/2004, it decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

22.

It does not seem to me that the admissibility of the request for a preliminary ruling can be put in question because a situation whereby an application for certification as a European Enforcement Order is filed with a court located in the Member State where the creditor and the debtor are domiciled should be classified as ‘purely internal’.

23.

Although it is true that the parties to the main proceedings both reside in Croatia, this fact alone in no way means that Regulation No 805/2004 does not apply in this dispute.

24.

First, the scope of Regulation No 805/2004 is not limited to cross-border cases.

25.

Unlike Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, ( 5 ) Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, ( 6 ) or even Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, ( 7 ) Regulation No 805/2004 does not impose any requirement relating to the cross-border nature of the dispute, which more often than not means that at least one of the parties must be domiciled or habitually resident in a Member State other than the Member State of the court seised. ( 8 )

26.

Although these regulations have created new, uniform, European procedures applicable exclusively to cross-border cases — procedures separate from national procedures which continue to apply concurrently — Regulation No 805/2004 does not actually establish a uniform European Enforcement Order; instead, it enables national judgments to circulate freely within the European judicial area by appending to those judgments a certificate which acts as a ‘European passport’.

27.

In the absence of any requirement relating to the cross-border nature of the case, there is nothing to prevent an application for a European Enforcement Order certificate being made in a dispute between two parties who are domiciled or habitually resident in the same Member State. This situation is implicitly foreseen in Article 6(1)(d) of Regulation No 805/2004, which makes certification of a judgment on an uncontested claim within the meaning of Article 3(1)(b) or (c) of that regulation conditional on the judgment having been delivered in the Member State where the debtor is domiciled, where he is the consumer, without also requiring the creditor to be domiciled in another Member State.

28.

Moreover, that situation is commonplace where the debtor owns property abroad or holds accounts in banks established in other Member States. Even if the debtor resides in the same Member State as the creditor, the latter may therefore have an interest in securing a European Enforcement Order enabling him to take enforcement measures against property located in other Member States.

29.

Secondly, the admissibility of the application for a European Enforcement Order certificate is not conditional on the creditor proving that he has brought an action in another Member State seeking recognition or enforcement of a judgment or that the debtor owns property located in other Member States, in respect of which enforcement measures may be taken.

30.

Although the purpose of Regulation No 805/2004 is to permit the recognition and enforcement throughout all Member States of judgments, court settlements and authentic instruments on uncontested claims, without the need for the exequatur process, it does not contain a single provision requiring the creditor to adduce evidence of the utility or necessity of certification.

31.

It should be noted that Article 6(1) of Regulation No 805/2004 states that an application for certification of a judgment on an uncontested claim may be made ‘at any time’, meaning that a creditor may, in principle, as early as the statement of claim, attach a subsidiary application to his main application seeking certification of the judgment to be delivered, ( 9 ) provided, however, that such judgment is immediately enforceable in the Member State of origin. ( 10 ) That application for certification is not conditional on the creditor proving that he has brought an action in another Member State seeking recognition or enforcement of the judgment or that the debtor owns property located in other Member States, in respect of which enforcement measures may be taken. Requiring such evidence, which is difficult to obtain, would seriously undermine the effectiveness of Regulation No 805/2004 whose raison d’être is to facilitate the automatic circulation of national enforcement titles within the European judicial area. Furthermore, it is perfectly conceivable that a debtor, domiciled in the same Member State as his creditor, might arrange for his own insolvency during the proceedings by moving his assets abroad in order to evade legal action.

32.

The fact of the matter is that by its very nature the European Enforcement Order incorporates, as its name suggests, an international element because it is aimed exclusively at enabling national orders to be exported to other Member States, by operating as a ‘European judicial passport’ which can be obtained without having to show that the national order will circulate in other Member States. I venture that a parallel could be drawn with the issue of a European arrest warrant. In order for a European arrest warrant to be validly issued, must the national judicial authority provide proof that the requested person is indeed present in another Member State? If that judicial authority were to ask the Court to interpret the provisions of Council Framework Decision 2002/584/JHA of 13 June 2002 ( 11 ) relating to the conditions for the issue of such a warrant, would the Court have to declare the request inadmissible because, until such time as the requested person has been arrested in another Member State, the situation giving rise to the main proceedings would be purely internal? ( 12 )

33.

Since there is an intrinsically European dimension to the very purpose of the European Enforcement Order certificate, the request for a preliminary ruling cannot be declared inadmissible on the ground that the facts in the main proceedings fall outside the scope of Regulation No 805/2004. Furthermore, it is pointless to justify the admissibility of the request by reference to the line of authority devolving from the judgment of 18 October 1990, Dzodzi, ( 13 ) according to which the Court has jurisdiction to rule on a reference for a preliminary ruling relating to a provision of EU law where the domestic law of a Member State refers to that provision in order to determine the rules applicable to a situation which is purely internal to that State. ( 14 ) The Law on Enforcement does not, however, refer to Regulation No 805/2004 in order to determine the rules applicable in situations which are purely internal to the Republic of Croatia; instead, it simply defines which authorities have the power to certify judgments, court settlements and authentic instruments on uncontested claims as European Enforcement Orders.

34.

It follows that the request for a preliminary ruling cannot be declared inadmissible on the ground that the enforcement of the writ at issue in the main proceedings was not first sought in a Member State other than the Member State where the application for a European Enforcement Order certificate was made.

35.

I would also note that, according to settled case-law, questions on EU law enjoy a presumption of relevance and the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation or assessment of the legality of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the question submitted. ( 15 ) In the present case, it is not apparent from either the decision to refer or the observations of the interested parties that the main action is contrived and artificial or that the question referred is purely hypothetical.

36.

It follows from the foregoing that the request for a preliminary ruling is admissible.

37.

Let us now turn to the questions referred.

38.

By its first question, the national court asks whether the provisions of the Law on Enforcement, which give notaries the power to certify as European Enforcement Orders the writs of execution they issue based on authentic documents, where the debtor has not objected, are compatible with Regulation No 805/2004.

39.

Although, in accordance with the Court’s settled case-law, the Court cannot in a reference for a preliminary ruling give a ruling either on questions which fall within the national law of the Member States or on the compatibility of national provisions with EU law, it can, nevertheless, provide a ruling on the interpretation of EU law so as to enable the national court to decide the case before it. ( 16 )

40.

In this case, the national court essentially asks whether an enforcement title such as a writ of execution issued by a notary based on an authentic document pursuant to the Law on Enforcement constitutes a judgment on an uncontested claim that can be certified as a European Enforcement Order.

41.

In order to answer that question, it should be recalled at the outset that Article 3(1) of Regulation No 805/2004 sets out three categories of ‘enforcement title’ to which the procedure for certification applies. According to that provision, the regulation applies ‘to judgments, court settlements and authentic instruments on uncontested claims’.

42.

The request for a preliminary ruling therefore invites the Court to determine whether or not a writ of execution issued by a notary under the Law on Enforcement falls within one of these three categories of certifiable title.

43.

The category of court settlement can be ruled out automatically because, obviously, a writ drawn up unilaterally by a notary based only on an invoice issued by a creditor, regarded as an ‘authentic document’, is not in the nature of a contract whose terms depend on the parties’ intention.

44.

Accordingly, there remains to be examined whether such a writ may be classified as an authentic instrument or judgment on an uncontested claim.

45.

Article 4(3) of Regulation No 805/2004 contains a precise definition of an authentic instrument which reproduces the definition put forward by the Court in its judgment of 17 June 1999, Unibank, ( 17 ) in connection with the interpretation of Article 50 of the Brussels Convention, ( 18 ) a definition which was itself inspired by the Jenard-Möller report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988. ( 19 ) According to that definition, an instrument is authentic if three conditions are met. First, the authenticity of the instrument must have been established by a public authority; secondly, such authenticity must relate not only to the signature, but also to the content of the instrument; and thirdly, the instrument must be automatically enforceable in the Member State where it was drawn up. Although the third condition is not expressly mentioned in Article 4(3) of Regulation No 805/2004, it flows from Article 25(1) of that regulation which provides that, in order to be certified as a European Enforcement Order, the authentic instrument must be ‘enforceable in one Member State’.

46.

Since notaries are tasked specifically with authenticating the instruments they receive, writs of execution issued by them could, at first sight, meet the definition of authentic instrument ‘formally drawn up or registered’.

47.

However, Article 3(1) of Regulation No 805/2004 requires authentic instruments, like judgments and court settlements, to relate to an uncontested claim and point (d) of that provision states that a claim is to be regarded as uncontested if the debtor has expressly agreed to it in an authentic instrument. In other words, an authentic instrument on an uncontested claim, for the purposes of that provision, is an instrument in which the debtor has expressly acknowledged the claim.

48.

The writ of execution issued by the notary based only on the invoice issued by the creditor, in circumstances where the debtor was not called on to indicate his acceptance, clearly does not satisfy that requirement.

49.

That writ cannot therefore be classified as an authentic instrument on an uncontested claim. It thus remains to be determined whether that enforcement title can be classified as a ‘judgment’ within the meaning of Regulation No 805/2004.

50.

Article 4(1) of Regulation No 805/2004 defines ‘judgment’ as ‘any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court’.

51.

Regulation No 805/2004 does not, however, provide any general definition of the concept of ‘court or tribunal of a Member State’, with the result that it is for the case-law to flesh out the content of that concept in order to determine whether a notary empowered by domestic law to issue writs may be classified as such within the meaning of that regulation.

52.

According to the Croatian Government, a notary may be regarded as a court in the context of the procedure for the adoption of a writ of execution based on an authentic document.

53.

In support of its contention, the Croatian Government submits that although Article 4 of Regulation No 805/2004 does not expressly state that the term ‘court’ covers, in Croatia, other authorities such as notaries, the regulation was adopted and subsequently amended on two occasions before the Republic of Croatia joined the European Union, with the result that the particularities of Croatian law could not be taken into account.

54.

It also observes that, in Croatia, a decision was taken to apportion enforcement responsibilities between the courts and the notarial profession, with the latter being given exclusive competence in the enforcement of claims based on authentic documents.

55.

According to the Croatian Government, the term ‘court’, within the meaning of Regulation No 805/2004, does not necessarily entail that the persons and authorities responsible for conducting the procedure must belong formally to a State’s judiciary. It is sufficient for the authority in question to be independent and impartial and for its organisation and activities to be governed by pre-established rules. Indeed, notaries satisfy the criteria set out by the Court in its judgment of 17 September 1997, Dorsch Consult, ( 20 ) for defining a court or tribunal within the meaning of Article 267 TFEU.

56.

The Croatian Government goes on to argue that notaries enjoy the trust of the general public and that their functions are regulated in a very detailed manner by statute, in particular by the Zakon o javnom bilježništvu (Law on Notaries), ( 21 ) which ensures that they are professional, serious and responsible in the exercise of the powers conferred on them.

57.

It also contends that Croatian legislation is justified having regard to the objective pursued by Regulation No 805/2004, which seeks to simplify the procedure for the mutual recognition of judgments by avoiding the drawbacks of the exequatur process.

58.

Lastly, the Croatian Government states that the procedure for the issue of a writ of execution by a notary ensures that the debtor’s fundamental rights are protected because: the notary is not able to adopt such a writ unless he is satisfied that the application is admissible and well founded; the writ is served on the debtor in accordance with the general rules governing the service of procedural documents, such as statements of claim; the debtor has the opportunity to lodge objections, having been duly informed of his right to do so and of the detailed rules and deadlines for taking such action; and it is only if there are no objections and upon the expiry of a period of eight days that the notary can append the order for enforcement to the writ.

59.

The European Commission supports the opposite view.

60.

It submits that the concept of ‘court’, within the meaning of Regulation No 805/2004, should accord with the interpretation of that concept as provided for in Regulation No 44/2001, as both regulations fall within the scope of judicial cooperation in civil matters and lay down rules which are complementary.

61.

While admitting that notaries may initiate ‘quasi-judicial’ proceedings and take decisions that are similar to court decisions, the Commission argues that such decisions cannot be treated as ‘court’ decisions, for the purposes of Regulation No 805/2004, because in order for them to be considered as such they would have to comply with the minimum procedural standards set out in that regulation, which seek to ensure that the right to a fair hearing is fully respected.

62.

The Commission adds that, where the intention of the EU legislature is to place the decisions of other competent authorities on the same footing as decisions handed down by the courts of the Member States, the legal instrument in question makes express provision to that effect, as demonstrated by Article 4(7) of Regulation No 805/2004, which states that the term ‘court’ includes the Swedish enforcement service in summary proceedings concerning orders to pay. Treating writs of execution issued by notaries in the same way as judgments would therefore require an amendment to Regulation No 805/2004.

63.

In order to adjudicate between these two propositions which oppose the Croatian Government and the Commission, it is necessary, first, to conduct a closer examination of the content of the definitions of ‘judgment’ and ‘court’ in secondary legislation relating to judicial cooperation in civil matters and, secondly, consider the clarifications provided by the case-law. Only after this two-fold analysis has been carried out will I propose a solution to the Court.

64.

Following the approach taken in Regulation No 44/2001 and thereafter in Regulation (EU) No 1215/2012 ( 22 ) which replaced it, in Regulation No 805/2004 the EU legislature reproduced the definition of judgment appearing in the Brussels Convention.

65.

An analysis of EU legal instruments relating to judicial cooperation in civil matters therefore reveals a unitary approach to the concept of ‘judgment’, ( 23 ) which is given an organic definition based on the judicial nature of the body that took the decision. A judgment is thus any decision taken by a body possessing the status of court.

66.

However, the truth is that this unitary definition hides a wide diversity because there is substantial disparity in the way the EU legislature has defined the indissociable concept of ‘court’, which seems to be the subject of many differing interpretations. I think it is possible to identify three main trends which correspond to three different views of this concept.

67.

The first trend involves a process whereby certain authorities are treated like courts on an ad hoc basis. This is the trend followed by Article 4 of Regulation No 805/2004 which, without defining the concept of ‘court’ states, in paragraph 7, that in Sweden the term ‘court’ includes the Swedish enforcement service in summary proceedings concerning orders to pay. It was also followed by Article 3 of Regulation No 1215/2012, which provides:

‘For the purposes of this Regulation, “court” includes the following authorities to the extent that they have jurisdiction in matters falling within the scope of this Regulation:

68.

It is interesting to note that, under that provision, Hungarian notaries are therefore expressly treated in the same way as the courts as regards their activity of issuing orders to pay. The implications of such treatment confined to Hungarian notaries will be addressed at a later stage.

69.

The second trend that can be discerned in EU legislation involves the dilution of the concept of ‘court’, resulting in the concept of ‘authority with jurisdiction’ or ‘competent authority’. This trend is illustrated in particular by Article 2(1) of Regulation (EC) No 2201/2003, ( 24 ) which defines ‘court’ as ‘all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation’, and by Article 2(2) of that regulation, which defines ‘judge’ as ‘the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of … Regulation [No 2201/2003]’. It was also followed by Article 5(3) of Regulation No 1896/2006, which defines ‘court’ as ‘any authority in a Member State with competence regarding European orders for payment or any other related matters’.

70.

That trend appears again in the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007, ( 25 ) the conclusion of which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008, ( 26 ) as Article 62 of that convention provides that ‘the expression “court” shall include any authorities designated by a State bound by this Convention as having jurisdiction in the matters falling within the scope of this Convention’.

71.

The third trend which can be identified in recent EU legislation involves a process whereby the concept of ‘court’ is defined by enshrining the case-law. This interesting development is evidenced in particular in Article 2(2)(1) of Regulation No 4/2009, ( 27 ) which provides that the concept of ‘court’ includes administrative authorities of the Member States with competence in matters relating to maintenance obligations, provided that such authorities offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State where they are established:

72.

The first subparagraph of Article 3(2) of Regulation (EU) No 650/2012 ( 28 ) follows suit by defining ‘court’ as ‘any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority’, provided that such other authorities and legal professionals and their decisions satisfy the same conditions as those applicable to administrative authorities and their decisions under Article 2(2)(1) of Regulation No 4/2009.

73.

As a result of this analysis, it seems that the concept of ‘court’ is characterised by an uncontrolled proliferation of definitions which has spread over time with virtually no semblance of consistency. While some instruments, which opt for an exhaustive list of the administrative authorities to be treated as courts, might support a strict interpretation of the concept of ‘court’, other instruments, conversely, take a broad, even extremely flexible, view of that concept, whereby it encompasses all competent authorities under national law, while others still retain a definition which is conceptually similar, as we will see, to that developed by the case-law of the Court.

74.

The questions submitted by the national court sit on the intersection of two lines of authority.

75.

The first is concerned with the concept of ‘judgment’ in the field of judicial cooperation in civil and commercial matters.

76.

This line of authority has its origins in the interpretation of Article 25 of the Brussels Convention which, like Article 4 of Regulation No 805/2004, defines ‘judgment’ as any judgment given by a court or tribunal of a Member State, whatever the judgment may be called.

77.

The Court has already held that the concept of ‘judgment’ defined in Article 25 of the Brussels Convention, its interpretation of which also applies, in principle, to the corresponding provision of Regulation No 44/2001, refers ‘solely to judicial decisions actually given by a court or tribunal of a Contracting State’, ( 29 ) while recalling — by reference to the Report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, drawn up by P. Jenard ( 30 ) — that the determination of costs by the registrar is treated as a ‘judgment’ because the registrar ‘acts as an officer of the court’ which decided on the substance of the matter and, ‘in the event of a challenge to the registrar’s decision, the court decides the issue’. ( 31 )

78.

The Court has inferred from that definition that, in order to be a ‘judgment’ for the purposes of the Brussels Convention, ‘the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties’. ( 32 )

79.

In addition to the organic criterion expressly set out in Article 25 of the Brussels Convention, the Court has gradually developed two other criteria, one of a procedural nature and the other of a substantive nature.

80.

The procedural criterion requires that the rights of the defence were observed in the procedure which led up to the adoption of the judgment. ( 33 ) However, the Court has held that for a judgment to qualify for the system of recognition and enforcement provided for in the Brussels Convention, it is sufficient that, before recognition and enforcement is sought in a State other than the State of origin, the judgment is or is capable of being the subject, in that State of origin and under various procedures, of an inquiry in adversarial proceedings. ( 34 ) The Court has therefore classified as a ‘judgment’ an order allocating funds adopted at the conclusion of an initial phase of the proceedings in which the parties were not heard but where the order could have been the subject of submissions by the parties before its recognition or enforcement; ( 35 ) an order for payment which the debtor could have opposed by converting the matter into ordinary contentious proceedings; ( 36 ) and a judgment by default in civil proceedings which, as a rule, adhere to the adversarial principle. ( 37 )

81.

The substantive criterion requires that the body which took the decision participated to some degree in its preparation. Thus, as recalled above, the decision must emanate from a body ‘deciding on its own authority on the issues between the parties’ ( 38 ) which, according to the Court, excludes court settlements which are essentially contractual in that their terms depend first and foremost on the parties’ intention. ( 39 )

82.

The concept of ‘judgment’ within the meaning of the Brussels Convention requires, in short, the involvement of a judicial body vested with discretion and ruling in compliance with the rights of the defence.

83.

However, the case-law on the Brussels Convention and Regulation No 44/2001 provides hardly any clarification on the content of the concept of judicial body. In order to define that term, reference must therefore be made to the case-law addressing the question from the perspective of Article 267 TFEU.

84.

The second line of authority deals with the definition of the concept of ‘court or tribunal’, within the meaning of Article 267 TFEU.

85.

Without it being necessary to review in detail all the subtleties of casuistic case-law, which is not immune from a certain degree of trial and error, ( 40 ) I will simply recall that, in assessing whether a judicial body possesses the status of ‘court or tribunal’, the Court — which has eschewed developing a general and abstract definition of that concept — applies an identification method based on consideration of a set of convergent indicia relating to 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.

86.

The Court has thus accepted that an administrative authority before which an action has been brought and which is therefore exercising a judicial function can be regarded as a court or tribunal entitled to refer a question for a preliminary ruling. ( 41 ) In terms of its settled case-law, according to which the assessment of whether a body is a ‘court or tribunal’ is a question governed by EU law alone, the Court has pointed out that the fact that the body making a reference is regarded under domestic law as an administrative body is not, in itself, conclusive for the purposes of that assessment. ( 42 )

87.

Three possible solutions emerge quite naturally from the legal context outlined above in order to define the concept of ‘court’ within the meaning of Regulation No 805/2004.

88.

The first involves opting for a strict interpretation of the concept of ‘court’, limiting it to judicial bodies in the proper sense and consequently excluding all authorities which are not organically linked to the judicial organisation of a Member State, unless the EU legislature expressly provides otherwise.

89.

The second solution involves, conversely, opting for a broad interpretation whereby the concept of ‘court’ covers all competent authorities under domestic law.

90.

The third ‘compromise’ solution involves returning to the characteristic features of courts as set out in the Court’s settled case-law interpreting Article 267 TFEU and accepting, in consequence, that Croatian notaries may, under certain conditions, be regarded as a ‘court’, within the meaning of Regulation No 805/2004.

91.

The first solution seems to me to be the least practicable.

92.

Although not completely unambiguous, the Commission’s position set out in its written and oral observations appears to favour the first solution, since it submits, without even considering the conditions under which Croatian notaries intervene, that the decisions they take could be regarded as ‘judicial decisions’ for the purposes of Regulation No 805/2004 only if that regulation was amended to make provision for such treatment.

93.

The main reason put forward in support of the first solution relates to the fact that, when the EU legislature intends to treat an authority in the same way as a court, it makes express reference to that effect in the legal instrument in question. However, Regulation No 805/2004 does not mention Croatian notaries, although Article 4(7) thereof mentions the Swedish enforcement service in summary proceedings concerning orders to pay, while Article 3 of Regulation No 1215/2012 expressly treats as a court, in addition to the Swedish enforcement service, Hungarian notaries in summary proceedings concerning orders to pay.

94.

Moreover, the Commission claims that this narrow interpretation is also supported by the comparison with Article 62 of the Lugano Convention, since the absence in Regulations Nos 805/2004 and 1215/2012 of a similar provision including all competent authorities within the concept of ‘court’ shows that the EU legislature did not intend to cover, in the context of those two regulations, the concept of court in a purely functional sense.

95.

Although such a strict interpretation seems, at first sight, to be based on a solid textual argument, stemming from the wording of Article 4 of Regulation No 805/2004, there are a number of more conclusive factors which militate in favour of a wider interpretation.

96.

In the first place, the provisions of Article 4(7) of Regulation No 805/2004 and Article 3 of Regulation No 1215/2012 can be given a different reading. The fact that the EU legislature requires some administrative authorities to be regarded as a ‘court’ does not preclude other authorities from being treated as such pursuant to the application of settled case-law criteria. It is true that a body other than the Swedish enforcement service may not be automatically regarded, by ‘determination of law’, as a ‘court’, within the meaning of Regulation No 805/2004. However, there is nothing in that regulation to prevent such a body being classified as a ‘court’ if it is shown that the body has the characteristic features of a court in accordance with the settled case-law of the Court.

97.

In the second place, such a level of requirement as regards the conception of the court would be most unprecedented on account of its stringency, since it would be wholly inconsistent with the case-law of the Court which, by endowing the concept of ‘court’ with an autonomous content in the context of the judicial cooperation instrument forming the subject matter of the reference for a preliminary ruling, has accepted that administrative bodies vested with judicial functions may be treated as a ‘court or tribunal’ within the meaning of Article 267 TFEU.

98.

In the third place, this new level of requirement is tantamount to denying that the concept of court is of an autonomous nature under EU law, since it would be sufficient for the Member State of origin to classify a body as a ‘judicial authority’ and to bring it within its internal judicial organisation, if only for appearance’s sake, in order for it to be treated as a ‘court’.

99.

In the fourth place, I do not think that this strict interpretation is compatible with the principle of mutual recognition, which underpins the scheme of Regulation No 805/2004. This principle provides justification for the fact that, for the purposes of enforcement, a judgment handed down in the Member State of origin and certified as a European Enforcement Order by a court in that Member State is treated as if it had been handed down in the Member State where enforcement is sought. In the spirit of a system based on mutual recognition, all authorities whose intervention confers on an instrument the status of judgment enforceable in the Member State of origin must be regarded as a ‘court’ whose decisions should be able to circulate freely in other Member States.

100.

The restrictive solution should be ruled out for these four reasons.

101.

Taken to the extreme, the logic of mutual recognition could justify the adoption of the opposite, most expansive, solution, whereby the concept of court is deemed to be the same as the concept of competent authority. This solution would make it possible to treat Croatian notaries as a ‘court’, within the meaning of Regulation No 805/2004, solely because the Law on Enforcement empowers them to issue writs of execution and to certify such writs as European Enforcement Orders.

102.

However, I do not think that that solution is well founded.

103.

It is not in accordance with the wording of Article 4 of Regulation No 805/2004 which, unlike Article 2(1) of Regulation No 2201/2003, Article 5(3) of Regulation No 1896/2006 and Article 62 of the Lugano Convention, did not make provision for the generalisation, or even widespread use, of the concept of ‘court’.

104.

Moreover, if the expression ‘court’ had encompassed all competent authorities, I cannot see why the EU legislature would have made the effort to put the Swedish enforcement service on the same footing in express terms.

105.

I therefore propose a compromise solution which, in actual fact, involves reproducing the identification method used by the Court to define the concept of ‘court or tribunal’, within the meaning of Article 267 TFEU, having regard to the scheme and purpose of Regulation No 805/2004, several provisions of which seem to emphasise the importance of respecting procedural safeguards.

106.

Thus, in order for a claim to be ‘regarded as uncontested’ in the case of judgments, as set out in Article 3 of Regulation No 805/2004, account must be taken of the debtor’s conduct ‘in the course of the court proceedings’. ( 43 ) I am of the view that this provision itself requires there to be proceedings which respect the debtor’s right to be heard and to object to the creditor’s application.

107.

Furthermore, Regulation No 805/2004 makes certification of a judgment on an uncontested claim delivered in a Member State subject to compliance with minimum procedural standards aimed at ensuring that the debtor is informed, in sufficient time and in such a way as to enable him to arrange for his defence, first, of the legal action raised against him as well as the conditions for his active participation in the proceedings with a view to opposing the claim in question and, second, of the consequences of failing to participate in those proceedings. Given the risks inherent in establishing a presumption of non-opposition of the claim based on the debtor’s silence during the court proceedings, respect for minimum procedural safeguards is a fundamental requirement that the ‘court’ is required to satisfy.

108.

In short, the concept of ‘court’ should be interpreted, for the purposes of Regulation No 805/2004, as covering all bodies offering guarantees of independence and impartiality, deciding on their own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority.

109.

This functional definition of the concept of ‘court’ seems to me to correspond to the traditional view of that concept, while allowing account to be taken of the current trend towards removing the treatment of some disputes, especially large-volume disputes, from the judicial sphere in order to ease the burden on judicial authorities.

110.

I consider, first of all, that Croatian notaries indeed engage in an activity of a judicial nature where they issue writs of execution, even though the procedure followed is a summary procedure and resembles an order for payment procedure.

111.

In its written observations, the Croatian Government provided interesting clarifications in that regard on the guarantees offered to the debtor in the context of enforcement proceedings before a notary. The government stated that notaries issue writs of execution only after deciding that the application is admissible and well founded. In addition, they must serve the writ on the defendant in accordance with rules ensuring that the defendant has the opportunity to contest the claim, by indicating that he is entitled to lodge objections before the court and stating the deadline for doing so. The Croatian Government submits that only after eight days have elapsed after expiry of the deadline for lodging objections can the notary append the order for enforcement to the writ.

112.

At the hearing, the Croatian Government supplied additional information, stating that the Law on Notaries and the code of conduct for notaries ensure the independence and impartiality of notaries with respect to applicants in the exercise of their specific functions of issuing writs of execution based on authentic documents. It argued that far from simply rubber-stamping applications, notaries examine them and determine whether they are admissible and well founded.

113.

According to the information provided by the Croatian Government, it therefore seems that when notaries engage in their specific activity of issuing writs of execution, they are in the position of a third party having no connection to the interests in question and are free from conflicts of interest which may stem from carrying out their other activities.

114.

Subject to inquiries which are for the national court to make, it thus appears that where notaries act not as public officials, but as bodies entrusted with issuing writs of execution, they act as independent and impartial bodies.

115.

In those circumstances, I consider that writs of execution issued by notaries may be classified as ‘judgments’ within the meaning of Article 4(1) of Regulation No 805/2004. It remains to be determined whether notaries can also certify those judgments as European Enforcement Orders.

116.

By its second question, the national court essentially asks whether a notary who has issued, based on an authentic document, a writ of execution which has become enforceable in the absence of opposition from the debtor has the power to certify that writ as a European Enforcement Order.

117.

It follows from Article 6(1) of Regulation No 805/2004 that an application for certification as a European Enforcement Order must be filed with the court of origin, which is defined in Article 4(6) of that regulation as ‘the court or tribunal seised of the proceedings at the time of fulfilment of the conditions set out in Article 3(1)(a), (b) or (c)’, that is to say the court seised of the proceedings at the time the conditions allowing the claim to be regarded as uncontested were met.

118.

In the system established by the Law on Enforcement, it is therefore the notary who must be treated as the ‘court of origin’ where the debtor has not objected to the writ of execution and where that writ has become enforceable.

119.

The Court’s finding, in its judgment of 16 June 2016, Pebros Servizi (C‑511/14, EU:C:2016:448), that certification of a judgment as a European Enforcement Order is a judicial act does not prevent notaries from carrying out such certifications, provided that all the conditions for being classified as a ‘court’ within the meaning of Regulation No 805/2004 are met.

120.

In the light of the above considerations, I propose that the Court give the following answer to the request for a preliminary ruling from the Općinski sud u Novom Zagrebu (Municipal Court of New Zagreb, Croatia):