1.

The request for a preliminary ruling concerns the interpretation of Article 1 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. ( 2 )

2.

That request was made in the context of proceedings brought by the Bauarbeiter-Urlaubs- u. Abfertigungskasse (Construction Workers’ Paid Annual Leave and Severance Pay Fund, Austria) ( 3 ) for the issue of a certificate, pursuant to Article 53 of Regulation No 1215/2012, for the purposes of enforcing a final judgment given in default against the company Gradbeništvo Korana d.o.o., established in Slovenia.

3.

Under Articles 37 and 42 of Regulation No 1215/2012, the production of such a certificate is required for the purposes of recognising and enforcing in one Member State judgments given in another Member State. The document confirms, without any special procedure beforehand, that those judgments are enforceable and was conceived as a means of reproducing them in the form of extracts with a view to promoting their free circulation and direct enforcement.

4.

In those circumstances, as the European Commission has observed, the admissibility of the question referred for a preliminary ruling turns on whether the functions performed by the court of origin when that certificate is issued are of an administrative or a judicial nature.

5.

This question of law concerning the application of Article 53 of Regulation No 1215/2012 is new, unlike that submitted by the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna, Austria), the referring court, which relates to the classification of the proceedings in order to determine whether or not they constitute ‘civil and commercial matters’. Since the latter question does not present any particular difficulties in the light of the case-law of the Court, my Opinion will focus exclusively on the admissibility of the request for a preliminary ruling, which the Court must assess before examining the substance of the request.

6.

At the end of my analysis, I will propose that the Court find that, in cases where it is uncertain whether Regulation No 1215/2012 is applicable, the issue of the certificate pursuant to Article 53 of that regulation requires a judicial examination, as part of which the national court may refer a question to the Court for a preliminary ruling, and therefore declare the request for a preliminary ruling admissible.

7.

Recitals 1, 4, 6, 26, 29 and 32 of Regulation No 1215/2012 state:

…

…

…

…

…

8.

Chapter I of that regulation, entitled ‘Scope and definitions’, includes Article 1, which provides:

‘1.   This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

2.   This Regulation shall not apply to:

…

…’

9.

Article 28(1) and (2) of the Regulation reads:

‘1.   Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.

2.   The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.’

10.

Under Article 37(1) of the same regulation, which is contained in Section 1, entitled ‘Recognition’, of Chapter III on the ‘recognition and enforcement [of judgments given in a Member State]’:

‘A party who wishes to invoke in a Member State a judgment given in another Member State shall produce:

11.

In Section 2, entitled ‘Enforcement’, of Chapter III, Article 39 provides:

‘A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.’

12.

Article 42(1) of Regulation No 1215/2012 provides:

‘For the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with:

13.

Article 43(1) of that regulation provides:

‘Where enforcement is sought of a judgment given in another Member State, the certificate issued pursuant to Article 53 shall be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the judgment, if not already served on that person.’

14.

Under Article 53 of Regulation No 1215/2012, which is contained in Section 4, entitled ‘Common provisions’:

‘The court of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex 1.’ ( 5 )

15.

This summary is limited to procedural provisions in view of the subject matter of this Opinion.

16.

Pursuant to an order of 17 September 2015 of the Oberster Gerichtshof (Supreme Court, Austria), ( 6 ) made on the basis of Regulation No 44/2001, ( 7 ) Paragraph 7a(1) ( 8 ) of the Gesetz über das Exekutions- und Sicherungsverfahren (Exekutionsordnung (Code of Enforcement)), ( 9 ) as amended, is to apply to the certificates provided for in Article 54 of Regulation No 44/2001. Under that provision, the court before which the matter is brought at first instance is to be competent to issue such a certificate.

17.

In accordance with Paragraph 16(7) of the Bundesgesetz betreffend die Besorgung gerichtlicher Geschäfte durch Rechtspfleger (Rechtspflegergesetz (Law on officers of the court)) ( 10 ) of 12 December 1985, the Rechtspfleger (officer of the court) is responsible for that task.

18.

According to paragraph 7 of the order of the Oberster Gerichtshof (Supreme Court), the procedure for the issue of the certificate within the meaning of Article 54 of Regulation No 44/2001 is, in principle, governed by the rules of the main procedure. In addition, the Oberster Gerichtshof (Supreme Court) found, in the same paragraph, that the provision contained in Paragraph 84(1) of the EO (now Paragraph 411(1)), which provides for an adversarial procedure, did not apply.

19.

In accordance with Paragraph 7(3) of the EO, an action may be brought with a view to withdrawing certificates issued illegally or in error.

20.

BUAK is a collective body governed by Austrian public law, located in Vienna (Austria), which is responsible for collecting the funds required to satisfy claims to paid annual leave and severance pay of workers in the construction sector under the Bauarbeiter-Urlaubs- und Abfertigungsgesetz 1972 (Law governing construction workers’ paid annual leave and severance pay) ( 11 ) of 23 November 1972, as amended. ( 12 )

21.

Gradbeništvo Korana, which is established in Slovenia, is an undertaking which posted workers to Austria in order to carry out construction work there.

22.

On 18 October 2016, BUAK brought an action before the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) against Gradbeništvo Korana seeking, primarily, payment of a sum of EUR 38 447.50, which corresponds to a supplement payable under Section VIb of the BUAG, by that company for the days of employment undertaken by a large number of construction workers posted to Austria over a period from February 2016 to June 2016.

23.

By a judgment of 28 April 2017, given in default because Gradbeništvo Korana failed to appear at the preliminary hearing of the same day, the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) allowed BUAK’s application in its entirety and fixed a 15-day period for voluntary compliance with the judgment by the defendant company. That judgment, which was served on Gradbeništvo Korana with effect from 21 June 2017, has become res judicata since an appeal was not lodged to challenge it. ( 13 )

24.

With a view to enforcing that judgment, BUAK made an application to the same court, on 31 July 2017, for the issue of a certificate on the basis of Article 53 of Regulation No 1215/2012.

25.

Accordingly, the referring court is raising the question of the applicability of that regulation, which is dependent on whether the procedure which culminated in the judgment given on 28 April 2017 is covered by the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of the Regulation.

26.

In its view, certain factors may make that procedure a procedure governed by public law, even though BUAK does not have the power, within the context of the posting of workers, to issue enforcement orders, as it does in purely domestic situations, and it must bring proceedings for the payment of supplements before the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna), which has exclusive jurisdiction.

27.

The referring court also submits that, by a judgment of 19 November 2014, ( 14 ) the Tribunal fédéral (Federal Court, Switzerland) considered a similar procedure based on Section VIb of the BUAG and held that, in view of the relationship of subordination existing between the employer and BUAK, the latter exercised powers as a public authority, and that such a procedure does not fall within the scope of Article 1 of the Lugano Convention. ( 15 )

28.

In those circumstances, the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 1 of Regulation … No 1215/2012 … to be interpreted as meaning that proceedings involving the assertion of claims by [BUAK] for wage supplements against employers as a result of the posting to Austria of workers without a habitual place of work in Austria for the purposes of performing work or in connection with the hiring-out of workers, or against employers established outside Austria as a result of the employment of workers with a habitual place of work in Austria, constitute “civil and commercial matters” to which the aforementioned regulation applies, even where such claims by BUAK for wage supplements concern employment relationships governed by private law and serve to cover workers’ claims to annual leave and payment in respect of annual leave (“annual leave pay”), governed by private law and arising from employment relationships with employers, but nevertheless

29.

On 5 July 2018, the Court was informed that insolvency proceedings had been opened against Gradbeništvo Korana and that the referring court maintained its request for a preliminary ruling. ( 16 )

30.

By its written observations, the Commission asks the Court to rule, for the first time, in connection with the procedure for issuing the certificate pursuant to Article 53 of Regulation No 1215/2012, on the admissibility of the question referred for a preliminary ruling, in the light of Article 267 TFEU, which turns on the classification of the functions exercised by the referring body.

31.

It submits that the court of origin, designated as competent to issue the certificate referred to in Article 53 of Regulation No 1215/2012, acts as a judicial body following on from the procedure which culminated in the judgment to be enforced, and that that court has jurisdiction to rule on the question of the applicability of that Regulation, at that stage, since it could not be resolved at the trial stage. The Commission refers to the logic and purpose of that Regulation as well as to the specific circumstances of the case, namely the defendant’s failure to contest the judgment, inferring from those factors that the Court has jurisdiction to answer the question submitted.

32.

In order to assess whether the conditions governing the admissibility of the question referred for a preliminary ruling are met in the main proceedings, it seems appropriate to refer, firstly, to the related principles set out by the Court and, more specifically, to the possibility of examining the admissibility of a request for a preliminary ruling from a body competent to certify a court decision as a European Enforcement Order. ( 17 )

33.

The Court has observed, first, that, ‘according to the Court’s settled case-law, although Article 267 TFEU does not make 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, 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’. ( 18 )

34.

In addition, it also made clear, once again, that, ‘although the terms “give judgment”, within the meaning of the second paragraph of Article 267 TFEU, encompass the whole procedure leading to the referring court’s judgment, they must be interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all procedural provisions of EU law that the referring court is required to apply’. ( 19 )

35.

Secondly, a parallel must be drawn with two earlier decisions of the Court regarding the certificates issued under Regulations Nos 44/2001 and 805/2004.

36.

In the judgment of 16 June 2016, Pebros Servizi, ( 20 ) given on the basis of the principles set out above, the Court ruled that ‘the certification of a court decision as a European Enforcement Order is a judicial act’, ( 21 ) thus confirming the analysis accepted in the judgment of 17 December 2015, Imtech Marine Belgium. ( 22 )

37.

Conversely, it may be inferred from the judgment of 6 September 2012, Trade Agency, ( 23 ) given by the Court in the context of an action brought before it challenging the declaration of enforceability of a judgment given in default in the Member State of origin and accompanied by the certificate referred to in Article 54 of Regulation No 44/2001, ( 24 ) that the issue of such a certificate does not require a judicial examination. The Court held that, ‘since the court … competent to issue [the] certificate is not necessarily the same as that which gave the judgment whose enforcement is sought, [the factual information contained in the certificate] can only have prima facie value’. ( 25 )

38.

It follows from those decisions that considerations relevant to the classification of the functions exercised by the court of origin when issuing the certificate referred to in Article 53 of Regulation No 1215/2012 must be drawn not only from the wording of the applicable provisions, but also from the scheme established by that regulation and from the objectives pursued by it.

39.

Analysis of those considerations leads me to the view that, despite a certain degree of convergence between Regulation No 1215/2012 and Regulations Nos 44/2001 and 805/2004, none of the previous solutions adopted by the Court is directly transposable.

40.

It should be observed, first of all, that the wording of Article 53 of Regulation No 1215/2012 differs from that of Article 54 of Regulation No 44/2001, its counterpart provision. Whereas the latter provision stated that ‘the court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to [that regulation]’, ( 26 ) Article 53 provides that the certificate is to be issued by ‘the court of origin’.

41.

Next, the procedure by which that court issues the certificate certifying that the judgment is enforceable ( 27 ) must be distinguished from the procedure by which a judgment is certified as a European Enforcement Order. ( 28 ) That wording, contained in Regulations Nos 805/2004 and 1215/2012, points to an important difference between those two procedures. Under Article 6(1) and Article 9 of Regulation No 805/2004, certification of a judgment on a claim uncontested before the court of origin as an enforcement order precedes the formal act of issuing the certificate, as the Court has observed. ( 29 )

42.

Finally, it must be held that, although — like Regulation No 805/2004 — Regulation No 1215/2012 does lay down the principle of the abolition of the exequatur, the latter makes the principle more general, without imposing any preconditions. This major innovation, which helped bring about the recast of Regulation No 44/2001, which had simplified the declaration of enforceability, follows from the principle of immediate enforceability ( 30 ) set out in Article 39 of Regulation No 1215/2012. That provision must be read in the light of recital 26 of that Regulation, which states that ‘a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed’.

43.

It is for this reason that, in order to enforce in one Member State a judgment given in another Member State, it is sufficient, pursuant to Article 42 of Regulation No 1215/2012, to produce a copy of that judgment and the certificate provided for in Article 53 of that regulation.

44.

That certificate is therefore the fundamental basis for implementation of the principle of direct enforcement of the judgment given in the Member States. In other words, without that document, the judgment is not ‘capable of circulating freely within the European judicial area’, ( 31 ) which was not the case under the scheme established by Regulation No 44/2001. ( 32 )

45.

Accordingly, in order to facilitate understanding of the judgment to be enforced, the certificate was designed as a substitute for that judgment, ( 33 ) without a translation of the certificate, ( 34 ) or even of the judgment to be enforced, being required in all cases. ( 35 )

46.

The effectiveness of that scheme, which justified the addition of numerous headings to the certificate, is based on the quality of the checks to be conducted by the court of origin at the trial stage, which will then serve as the basis for producing the certificate. No further review is carried out by the court having jurisdiction in the Member State addressed. Where an application for enforcement is made, only the person against whom that application is made may bring the matter before that court so that it may rule on the alleged grounds for refusal of recognition ( 36 ) or enforcement. ( 37 ) It is specifically because of that right that the certificate provided for in Article 53 of Regulation No 1215/2012 is served on the person concerned before any enforcement, in accordance with Article 43 of that regulation.

47.

In those circumstances, it is primarily a matter for the court of origin, to which an application for the issue of the certificate is submitted, to reproduce information contained in the judgment to be enforced. ( 38 ) It does not check compliance with certain requirements justifying the abolition of the exequatur as was the case under earlier instruments, ( 39 ) where the lack of any exequatur was linked either to the checking of particular guarantees, ( 40 ) or to the conduct of the procedure in accordance with specific rules laid down by certain regulations. ( 41 )

48.

Accordingly, where an application for the issue of the certificate pursuant to Article 53 of Regulation No 1215/2012 is made, it seems to me that two situations must be envisaged.

49.

If the court of origin considers that it is competent to produce the certificate since the judgment to be enforced contains all the information required, the act of issuing the certificate is not judicial in nature. Even though that certificate is a key feature of the process of enforcing a judgment, as provided for in Regulation No 1215/2012, the nature of that certificate is no different, in such circumstances, from that accepted by the Court as regards the certificate provided for in Article 54 of Regulation No 44/2001. ( 42 )

50.

In addition, since Article 53 of Regulation No 1215/2012 does not specify who, within the court of origin, is competent to issue such a certificate, ( 43 ) that certificate may even be issued by a non-judicial entity. Thus, in that case, the question of referral to the Court does not arise.

51.

However, if, as in the present case, the court of origin has not ruled, at the trial stage, ( 44 ) on the applicability of Regulation No 1215/2012 ( 45 ) and if it is not obvious that the dispute falls within the scope of that regulation, that court must necessarily carry out a judicial examination, in accordance with national procedural rules, either in the context of the referral of the matter to it with a view to the certificate being issued or on appeal ( 46 ) after the refusal to issue that certificate.

52.

In such circumstances, the court of origin is neither supplementing nor interpreting the judgment given, as it should do in order to be able to provide information under certain headings of the certificate where the judgment is incomplete or imprecise. ( 47 ) Its assessment whether it is competent to issue the certificate is a continuation of the trial proceedings, as part of a stage intended to guarantee the immediate enforceability of the judgment given. The court of origin must, therefore, adopt a decision which justifies, in accordance with the broad interpretation of the concept of ‘proceedings intended to lead to a decision of a judicial nature’, ( 48 ) its ability to put questions to the Court. Legal certainty and the rapid enforcement of the judgment given in the Member State of origin are greatly dependent on such action.

53.

In my view, the present situation must be approximated with that in which the court of origin is required to interpret the meaning of some of the headings of the certificate in the light of the specific features of its national law ( 49 ) or to rule on the jurisdiction of the court adjudicating on the merits in the case of a judgment ordering a provisional or protective measure. ( 50 ) The court of origin is thus exercising judicial functions which likewise justify it being permitted to make a request for a preliminary ruling to the Court.

54.

It is, however, my view that such classification as a court or tribunal, within the meaning of Article 267 TFEU, must remain the exception. There must be no question, when enforcing the judgment, of ‘initiating new proceedings’, ( 51 ) otherwise the purpose of Regulation No 1215/2012 would be called into question and the rights of the debtor adversely affected. ( 52 ) It should be recalled that the procedure by which the certificate is issued is non-adversarial in nature. In addition, the debtor, on whom the certificate will have been served, ( 53 ) may bring an action to challenge the effects of the certificate only within the limits of the grounds laid down by Article 45 ( 54 ) of Regulation No 1215/2012. In addition, those grounds are interpreted strictly, in accordance with the settled case-law of the Court, to ensure that, at the trial stage, pleas such as that relating to the applicability of that regulation, which could have been raised before the court adjudicating on the merits or by making use of legal remedies, cannot be opposed by a defendant who had been duly notified of the proceedings. ( 55 )

55.

Having regard to all those considerations, I take the view that the court of origin, to which an application for the issue of the certificate pursuant to Article 53 of Regulation No 1215/2012 is made, which has doubts as to the applicability of that regulation in the absence of a decision on that point, may refer a question to the Court for a preliminary ruling.

56.

I therefore propose that the Court find that, in cases where it is uncertain whether Regulation No 1215/2012 is applicable, the issue of the certificate pursuant to Article 53 of that regulation requires a judicial examination, as part of which the national court may refer a question to the Court for a preliminary ruling, and therefore declare the request for a preliminary ruling admissible.

57.

In the light of the foregoing considerations, I propose that the Court find that, in cases where it is uncertain whether Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is applicable, the issue of the certificate pursuant to Article 53 of that regulation requires a judicial examination, as part of which the national court may refer a question to the Court for a preliminary ruling, and therefore declare the request for a preliminary ruling made by the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna, Austria) admissible.