Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 11 January 2024 (1)

Case C‑632/22

AB Volvo

v

Transsaqui SL,

interested party:

Ministerio Fiscal

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling – Truck cartel – Action for damages – Service of the document instituting proceedings on the parent company’s subsidiary – Regulation (EC) No 1393/2007)

1.        The present reference for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain) gives the Court the opportunity to clarify the scope of Regulation (EC) No 1393/2007 (2) in a situation where an applicant intends to serve a document instituting proceedings on a subsidiary of the company against which it intends to bring an action for damages.

2.        The key question is whether, against the background of the Court’s judgment in Sumal, (3) where the Court found that, in the context of a truck cartel, in respect of which the European Commission imposed sanctions, private enforcement could be directed both at the parent company and at its subsidiaries, documents instituting proceedings against the parent company can be served on its subsidiary.

 Legal framework

 European Union law

3.        Article 1(1) of Regulation No 1393/2007, entitled ‘Scope’, is worded as follows:

‘This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii).’

 Spanish law

4.        Article 24 of the Spanish Constitution is worded as follows:

‘1.      Everyone has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may due process be denied.

2.      Likewise, all persons have the right of access to the ordinary judge predetermined by law; to a defence and to the assistance of a lawyer; to be informed of the charges against them; to a public trial without undue delay and with full guarantees; to the use of evidence appropriate to their defence; not to incriminate themselves; not to plead guilty; and to the presumption of innocence.’

5.        Article 155 of Ley 1/2000, de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000, (4) in the version applicable to the dispute in the main proceedings, entitled ‘Service of notices on parties who have not yet entered an appearance or are not represented by a court agent. Address.’, provides:

‘1.      Where the parties are not represented by a court agent or on the occasion of the initial service of process or an order to attend on the defendant, notices shall be served by reference to the parties’ addresses.

…

3.      For the purposes of the service of notices, the following may be designated as an address for service: the address which appears in local authority records or is officially recorded for other purposes, or the address which appears in the official register or in publications of professional associations in the case, respectively, of undertakings and other entities or of persons who practise a profession in which membership of a professional association is compulsory. The place where a non-temporary professional or employment activity is carried out may also be designated as an address for those purposes.

…

If the action is brought against a legal person, the address of anyone who is listed as a director, manager or agent of the company, or as a chairperson, member or representative of the board of any association listed in an official register may also be indicated as an address for service.’

 Facts in the main proceedings, procedure and questions referred

6.        During the course of 2008, Transsaqui SL purchased two Volvo trucks.

7.        On 19 July 2016, the Commission adopted a decision relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (5) (Case AT.39824 – Trucks) (notified under document C(2016) 4673) (‘Commission Decision of 19 July 2016’). (6) AB Volvo was one of the addressees of that decision. In that decision, the Commission found that a number of truck manufacturers, including Volvo, had participated in a cartel taking the form of a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement. The addressees of the decision were found to have participated in a collusion and/or bear liability for it. The collusive arrangements included agreements and/or concerted practices on pricing and gross price increases in order to align gross prices in the European Economic Area (EEA) and the timing and the passing on of costs for the introduction of emission technologies required by EURO 3 to 6 standards. Regarding Volvo, the duration of the infringement was established from 17 January 1997 until 18 January 2011.

8.        On 12 July 2018, Transsaqui brought an action against Volvo before the Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia, Spain), claiming damages for the harm suffered as a result of the surcharge imposed on it, as regards the truck cartel identified in the Commission Decision of 19 July 2016. The amount claimed came to EUR 24 420.69, being the amount of that surcharge. As the legal basis for its action, Transsaqui relied on Articles 72 and 76 of Ley 15/2007 de Defensa de la Competencia (Law 15/2007 on the protection of competition) of 3 July 2007, (7) the Commission Decision of 19 July 2016 and Directive 2014/104/EU. (8)

9.        Despite the fact that the registered office of Volvo is situated in Gothenburg (Sweden), Transsaqui indicated as Volvo’s address for the service of summons for the purposes of lodging a defence the address of that company’s subsidiary in Spain, Volvo Group España, SAU, situated in Madrid (Spain).

10.      The Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) gave leave for the action to proceed, following which copies of the application and the documents lodged with it were sent, by registered post, to the business address of Volvo Group España in Madrid. However, acceptance of the postal item was refused by means of a handwritten note indicating the address of Volvo in Sweden. In the light of this, the Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) granted Transsaqui a hearing so that it could make submissions on the subject. Transsaqui argued that the conduct of Volvo Group España, consisting in refusal of the service of summons for the purpose of lodging a defence in the action brought against Volvo, was simply a stratagem in bad faith to delay the proceedings, in view of the fact that the latter held 100% of the former’s share capital, meaning that the two constituted a single undertaking in accordance with competition law.

11.      The Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) ordered, by decision of 22 May 2019, that service be effected on the defendant, Volvo, at the business address of its subsidiary, Volvo Group España, in accordance with the ‘principle of the unity of undertakings’. To this end, it sent a request for judicial cooperation to the Madrid courts. An attempt was thus made, through the Madrid courts, to effect service at that address on 5 September 2019, but a lawyer who identified himself as the ‘legal representative of Volvo Group España’ refused to accept service, stating that service had to be effected at Volvo’s offices in Sweden. A second attempt by the Madrid courts to effect service at the subsidiary’s place of business in Madrid was successful. It was accepted by a person who stated that he was from the legal department.

12.      Since the Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) took the view that service had been properly effected and since Volvo, which had been served with the documents, failed to enter an appearance in the proceedings within the period indicated, the defendant was ruled to be in default and the case proceeded. An attempt was made to serve the relevant decision on Volvo at the business address of its subsidiary, Volvo Group España, but that company again refused service on the ground that it was not the correct address. On 26 February 2020, the Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) gave judgment upholding the action brought by Transsaqui and ordered Volvo to pay Transsaqui damages in the amount of EUR 24 420.69 plus statutory interest and to pay the costs.

13.      The Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) notified that judgment to Volvo by letter sent by registered post to the subsidiary’s place of business in Madrid which was received by a person present at the address who signed the acknowledgement of receipt on 10 March 2020. Since the judgment was final, the costs were taxed in accordance with the application for taxation submitted by Transsaqui. The court served notice on Volvo at the address in Madrid, for the purpose of submissions, and the acknowledgement of service was signed. Since the defendant did not contest the costs within the time limit indicated, the court approved those costs in the amount of EUR 8 310.64 and notified its order to Volvo by letter sent by registered post to the subsidiary’s place of business in Madrid, where the acknowledgement of receipt was signed. On application by Transsaqui, the judgment was enforced and an order for payment was issued against Volvo’s assets by court orders which were served at the business address of the subsidiary, Volvo Group España, in Madrid on 17 March 2021.

14.      In a series of letters sent to the Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) in response to each attempt at service of a judicial notice, Volvo Group España explained the reasons for its refusal to accept service of the documents and notices addressed to Volvo, since the latter’s registered office is in Sweden. It argued, inter alia, that, first, although Volvo Group España and Volvo are part of the same group of undertakings, each has a separate legal personality and the former does not have the status of director of the latter and nor is it authorised to accept service on the latter’s behalf; secondly, in accordance with Spanish procedural legislation, the defendant must be served with summons at its registered office and various Spanish courts, in proceedings relating to the truck cartel, have ruled that service at the registered office of the defendant parent company situated in another Member State, rather than at the business address of a subsidiary in Spain, is correct notwithstanding the links between the companies; thirdly, where the defendant company is established in another Member State of the European Union, service must be effected in accordance with Regulation No 1393/2007; and fourthly, the applicant may not circumvent the rules which govern the service of summons by using alternative addresses which do not belong to the defendant since, otherwise, there are grounds for revision of the judgment. 

15.      On 15 June 2021, Volvo filed with the Tribunal Supremo (Supreme Court, Spain), the referring court, an application for revision of the final judgment handed down by the Juzgado de lo Mercantil nº 1 de Valencia (Commercial Court No 1, Valencia) in default of appearance and ordering the defendant to pay damages to Transsaqui for breach of competition law. Volvo argued that it was filing that application within the statutory period of three months from the date on which it became aware of the ground for revision, in so far as it became ‘indirectly aware’ of the judgment finding against it at the time when the orders enforcing the judgment were served at the business address of its subsidiary in Spain on 17 March 2021.

16.      The referring court asks, in essence, whether Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 101 TFEU, must be interpreted as precluding service of summons on a parent company, the registered office of which is in another Member State, at the place of business of a subsidiary of that company.

17.      It is against this background that, by order of 7 October 2022, received at the Court on 10 October 2022, the Tribunal Supremo (Supreme Court) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      In the circumstances surrounding the litigation relating to the trucks cartel, described in this order, is it possible to interpret Article 47 of the [Charter], in conjunction with Article 101 [TFEU], in such a way that service of process on a parent company against which an action for damages for the harm caused by a restrictive trade practice has been brought is considered to have been properly effected when such service was effected (or attempted) at the place of business of the subsidiary company established in the State in which the legal proceedings were brought, while the parent company, which is established in another Member State, has not entered an appearance in the proceedings and has remained in default?

(2)      If the previous question is answered in the affirmative, is that interpretation of Article 47 of the Charter compatible with Article 53 of the Charter, in the light of the case-law of the Tribunal Constitucional (Constitutional Court, Spain) on the service of process on parent companies established in another Member State in disputes relating to the trucks cartel?’

18.      Written observations have been submitted by Volvo, Transsaqui, the Czech and Spanish Governments and by the Commission. Volvo, Transsaqui, the Spanish Government and the Commission took part in the hearing, which was held on 18 October 2023.

 Assessment

 First question

19.      By its first question, the referring court, in essence, seeks to ascertain whether Article 101 TFEU and Article 47 of the Charter allow for legal documents addressed to a parent company established in one Member State to be validly served on a subsidiary of that company in another Member State.

 Preliminary remarks

20.      Based on the information contained in the order for reference, the case at issue before the national court falls within the scope of Regulation No 1215/2012. (9) Under the provisions of that regulation, persons domiciled in a Member State  are, in principle, to be sued in the courts of that Member State. (10) However, they may be sued in the courts of another Member State, inter alia, in matters of tort, delict or quasi-delict. In such situations, persons domiciled in a Member State may be sued in another Member State in the courts for the place where the harmful event occurred. (11)

21.      Transsaqui hails from Spain. The trucks were procured in Spain, where the damage occurred. In line with the Court’s settled case-law, it follows that Spanish courts have jurisdiction, pursuant to Article 7(2) of Regulation No 1215/2012, to hear an action for non-contractual liability against a company established in Sweden, in so far as the harmful event occurred in a place where they have jurisdiction.

 Regulation No 1393/2007

22.      While the jurisdiction of the Spanish courts appears uncontested between the parties to the main proceedings, the parties disagree as to whether the document instituting proceedings had to be served from Spain to Sweden under the provisions of Regulation No 1393/2007.

23.      Volvo submits that service of the document instituting proceedings had to be effected in accordance with that regulation and that Transsaqui cannot evade the provisions governing service of the document instituting proceedings by using alternative addresses unrelated to Volvo. Transsaqui argues that Volvo is acting in procedural bad faith and that Volvo and its Spanish subsidiary constitute a single undertaking for the purposes of competition law, even though they have separate legal personalities, and, ultimately, that it could not bring its action if it were required to pay the costs of translation into Swedish.

24.      In the light of this dispute, before turning to the two provisions referred to explicitly by the national court in its first question, (12) it should be established whether the provisions of Regulation No 1393/2007 have a bearing on the case at issue.

–       Scope

25.      The proper functioning of an internal market requires a certain degree of regulation and harmonisation in the domain of international civil procedure, which is why the EU legislature (13) has gradually adopted a framework providing for the coordination of civil procedures between the Member States, (14) as well as for judicial cooperation. The transmission of documents for service between Member States falls into this latter category. To this end, (15) Regulation No 1393/2007 provides for a related mechanism for service of judicial and extrajudicial documents in civil and commercial matters between Member States.

26.      There are two main ways to serve judicial documents under Regulation No 1393/2007: (i) direct service, meaning that the requesting party may serve the document directly on the addressee, through authorised persons in the Member State where the service takes place; and (ii) transmission through the competent authorities, where the requesting party may transmit the document to the competent authorities in the Member State where the service is to take place. The competent authorities will then serve the document on the addressee, in accordance with the national law of that Member State.

27.      Regulation No 1393/2007 is understood primarily as dealing with the way in which documents are transmitted for service.

28.      The question whether and when documents are transmitted for service is, arguably, more tricky. Article 1(1) of Regulation No 1393/2007 states that it applies ‘in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there’. (16) This begs the question, which law decides whether documents should be served abroad: the regulation itself or national law?

29.      This wording of Article 1(1) of Regulation No 1393/2007 could be taken to imply that the scope of Regulation No 1393/2007 is determined exclusively by national law, (17) which would mean that Member States have the upper hand in order to determine whether and when documents are transmitted for service.

30.      The Court has thus far ruled otherwise.

31.      In the judgment in Alder, (18) it was called upon to assess the compatibility with EU law of national procedural law providing that judicial documents addressed (from Member State A) to a party whose place of residence or habitual abode is in another Member State (Member State B) are placed in the case file (which is located in Member State A) and deemed to have been effectively served, if that party has failed to appoint a representative who is authorised to accept service and is resident in the Member State (Member State A) in which the court proceedings are taking place.

32.      In its judgment in Alder, (19) the Court rejected the argument that it was up to national procedural law to determine the scope of Regulation No 1393/2007. It found the civil procedural law in question to be precluded by Article 1(1) of Regulation No 1393/2007. The Court essentially inferred this from a systematic reading of the recitals and provisions of Regulation No 1393/2007, coupled with an a contrario reasoning: since only Article 1(2) of the regulation (20) as well as recital 8 (21) make express reference to a situation in which that regulation is not to apply, it does apply in all other circumstances. In particular, the Court expressly endorsed Advocate General Bot’s Opinion (22) and held that bar the two abovementioned situations (23) ‘where the person to be served with the judicial document resides abroad, the service of that document necessarily comes within the scope of Regulation No 1393/2007 and must, therefore, be carried out by the means put in place by the regulation to that end, as provided for by Article 1(1) thereof’. (24)

33.      Crucially, the Court found that ‘to leave the national legislature with the task of determining in which cases such a requirement is present would prevent any uniform application of Regulation No 1393/2007, since it is possible for the Member States to provide for different solutions in this respect’. (25)

34.      It is my contention that the Court’s interpretation of Article 1(1) of Regulation No 1393/2007 fully corresponds both to smooth cooperation in civil and commercial matters and to the rationale of the provisions on the internal market. (26)

35.      It can therefore be safely assumed that there is a general principle underpinning Regulation No 1393/2007, according to which documents addressed to a defendant who is domiciled in a Member State different from that where the procedure is initiated, must imperatively be served in the Member State of the defendant. This principle is, moreover, in line with the rationale of the entire system of EU civil procedural law, where the concept of domicile is central.

36.      I should like to note in passing that that principle does not imply that all aspects of the service of judicial and extrajudicial documents in a cross-border context are covered by that regulation. There are certainly instances in which it is for national law to determine some specific aspects of the service. (27) This does not change the fact, however, that national law cannot alter the situations in which the service of the document on a person domiciled in another Member State falls within the scope of the regulation.

–       Implications for case at issue

37.      Turning to the case at issue, the reasoning set out above implies that the provisions of Regulation No 1393/2007 are applicable.

38.      It is common ground that Volvo is domiciled (28) in a Member State (Sweden) other than that in which the action against it was brought (Spain). It is moreover established that Volvo and its subsidiaries constitute different legal persons. Moreover, Volvo has not designated its subsidiary as its authorised representative in Spain for the purposes of service of legal documents.

39.      As a result, service of the judicial documents in question must be effected in accordance with the provisions of Regulation No 1393/2007. In this regard, so as to provide for efficient and expedient judicial proceedings and to ensure the proper administration of justice, Regulation No 1393/2007 establishes the principle of the direct transmission of judicial and extrajudicial documents between the entities designated by the Member States.

40.      In this connection, as emphasised by the Commission, the principle that a person sued in civil proceedings is entitled to be served personally with the document instituting proceedings in sufficient time to arrange for his or her defence is a fundamental element of the right to a fair trial. Here, both Article 28 of Regulation No 1215/2012 and Article 19 of Regulation No 1393/2007 guarantee the rights of defendants who have not entered an appearance. In such a situation, the referring court must stay the proceedings until it is established that the document was served on the defendant in accordance with Regulation No 1393/2007.

41.      It follows that a parent company established in another Member State (Sweden) is entitled not to enter an appearance where the document instituting proceedings was served at the domicile of its subsidiary established in another Member State (Spain). In a similar vein, a subsidiary (located in Spain) cannot be required to accept service of a document instituting proceedings addressed to its parent company established in another Member State (Sweden).

 Article 101 TFEU and Article 47 of the Charter

42.      Next, I shall examine whether Article 101 TFEU and Article 47 of the Charter call into question that provisional finding.

43.      Volvo submits that actions for compensation for damage caused by an infringement of competition law fall fully within the objective scope of Regulation No 1393/2007 and that the application of the latter to judicial remedies in competition matters in general, or to those based on the Commission Decision of 19 July 2016, cannot be ruled out on the basis of Article 47 of the Charter and Article 101 TFEU.

44.      The Czech Government and the Commission, in essence, share that assessment.

45.      By contrast, Transsaqui infers from the judgment in Sumal that the concept of ‘economic unit or undertaking’ developed therein is also applicable in the procedural field, given that the Court held in this judgment that a subsidiary could be sued in the context of a cartel.

46.      In the light of that judgment, Transsaqui considers that, since a subsidiary may have an action brought against it and be jointly and severally liable with its parent company for damage caused in the context of a cartel because they form a single undertaking, that subsidiary must be able to be the addressee of the summons served on the undertaking.

47.      Transsaqui adds that, in the present case, for reasons of procedural economy, it would make no sense to serve the summons in Sweden when the legal act which is the basis for the proceedings, namely the sale of trucks, was carried out in Spain.

48.      Transsaqui considers that Article 47 of the Charter, read in conjunction with Article 101 TFEU, may be interpreted as meaning that a parent company, which is the subject of an action for compensation for damage caused by a cartel, is validly served with a summons where service of the document instituting proceedings was effected at the address of its subsidiary, which is domiciled in the State in which the legal proceedings are brought, and the parent company, which is domiciled in another Member State, did not enter an appearance in the proceedings and remained in default.

49.      In the judgment in Sumal, the Court held that in the context of an action for damages based on an infringement of Article 101 TFEU found by the Commission in a decision, a legal entity which is not designated in that decision as having committed the infringement of competition law may nevertheless be held liable on that basis due to conduct amounting to an infringement committed by another legal entity, where those two entities form part of the same economic unit and thus constitute an undertaking which is the perpetrator of the infringement within the meaning of that Article 101 TFEU. (29) In this connection, the Court pointed to the fact that the determination of the entity which is required to provide compensation for damage caused by an infringement of Article 101 TFEU is directly governed by EU law (30) and that the concept of ‘undertaking’ under Article 101 TFEU constituted an autonomous concept of EU law. (31)

50.      It is my contention that Article 101 TFEU and Article 47 of the Charter do not call into question the underpinning principle stemming from Regulation No 1393/2007 that documents addressed to a defendant domiciled in another Member State must be served in that Member State. In other words, in the case at issue, the provisions of Regulation No 1393/2007 cannot and should not be set aside. Quite simply, the judgment in Sumal contains no indication in this respect.

51.      First, the Court’s reasoning in Sumal is focused exclusively on considerations of substantive law. Here, it is customary to provide for a certain flexibility so that victims of anticompetitive behaviour can seek appropriate redress. It is crucial for an individual to know to which entity he or she can turn in seeking damages. In this context, the concept of ‘economic unity’ precludes a defendant from, say transferring capital from a parent company to its subsidiary and vice versa. By focusing on the ‘same economic unit’, the Court aligned legal reality with economic reality. By contrast, when it comes to the rules governing the methods of service of the document instituting proceedings, any ambiguity should be avoided. This is, after all, a fundamental aspect of the right of defence in civil proceedings.

52.      Secondly, compliance with all the requirements governing the service of a judicial document in the correct manner is a sensitive issue, in particular when one considers the procedural effects resulting from service. For example, civil proceedings are typically legally and formally pending as soon as the document instituting proceedings has been served. Conversely, a lack of service or a defective service can constitute a ground for refusal of recognition (32) or enforcement of a judgment. (33) More generally, serving a judicial document correctly is a question of fairness of proceedings.

53.      Thirdly, attenuating the provisions of Regulation No 1393/2007 by allowing for the service of a document on another (legal) person (in casu a subsidiary) could ultimately amount to a lack of mutual trust in judicial cooperation. Mutual trust implies and is based on the assumption that procedural requirements – especially those stemming directly from EU law (in casu Regulation No 1393/2007) – have been complied with and fulfilled when proceedings have been initiated. Adding to the provisions of that regulation a combined reading of Article 101 TFEU and Article 47 of the Charter would, in my view, not serve judicial cooperation, but constitute a small but significant step to de facto  eradicating it.

54.      Finally, I should like to address the issue of translation of documents, which emerged at the hearing. It was claimed by Transsaqui that serving a document on Volvo in Sweden – in accordance with Regulation No 1393/2007 – would present considerable difficulties for a small undertaking such as Transsaqui. More specifically, it claimed that Volvo would not accept the reception of documents drafted in Spanish. In my opinion, that issue is purely hypothetical for the following reasons. First, in the case at issue in the main proceedings, there was not even an attempt to serve the document instituting proceedings in Sweden in accordance with that regulation. Secondly, the national court does not ask – even implicitly – any question about the interpretation of Regulation No 1393/2007. In those circumstances, any considerations of whether the application of that regulation might have impeded Transsaqui’s access to justice in these specific proceedings are of a purely hypothetical nature. Finally, I consider those considerations to be independent from the main legal problem constituting the subject matter of the questions referred to the Court.

55.      To sum up, I do not see any room for an application of Article 101 TFEU and Article 47 of the Charter to the present case.

 Directive 2014/104

56.      If Article 101 TFEU has no bearing on the case at issue, the same applies, by extension to the provisions of the lower-ranking Directive 2014/104.

57.      For the sake of completeness, it should nevertheless be stressed out that Directive 2014/104 at no point deals with the question of summons or service of judicial documents. Accordingly, recital 11 of the directive, in no uncertain terms amounting to a legal tautology, states that in the absence of Union law, actions for damages are governed by the national rules and procedures of the Member States and that such rules and procedures must comply with the principles of effectiveness and equivalence.

58.      Nevertheless, given that there is procedural EU law applicable to the situation in the case at issue, in the form of Regulation No 1393/2007, there is, in this respect no room for national procedural autonomy and the principles of effectiveness and equivalence. The reference to national law in Directive 2014/104 may not alter the principles established by EU law, such as the general principle contained in Regulation No 1393/2007 that documents addressed to a defendant who is domiciled in a Member State different from that where the procedure is initiated, must imperatively be served in the Member State of the defendant.

 Final considerations

59.      Finally, I should like to point out that I understand the Court to have already been aware of the problem at issue in the judgment in Sumal. Indeed, in his Opinion in that case, Advocate General Pitruzzella, whose Opinion was essentially followed by the Court, expressly concedes that ‘allowing the victim to bring an action against the subsidiary domiciled in its Member State circumvents the practical difficulties associated with the service abroad of the document instituting the proceedings and the enforcement of any judgment’. (34) I can only concur with this statement. Put simply, applicants face the choice of pursuing the parent company, its subsidiary or both. Regarding the procedural law applicable to each of those situations there is, however, no choice. An applicant may not cherry-pick in the sense that he or she brings an action against the subsidiary and serves the document instituting proceedings on the parent company or vice versa. The substance of each situation has no bearing on the procedure.

 Proposed answer

60.      My proposed answer to the first question is, therefore, that Article 1(1) of Regulation No 1393/2007 must be interpreted as meaning that it precludes legal documents addressed to a parent company established in one Member State from being validly served on a subsidiary of that company in another Member State. Article 101 TFEU and Article 47 of the Charter do not alter that finding.

 Second question

61.      By its second question, the national court is, in essence, asking whether, if the answer to the first question is in the affirmative, Article 53 of the Charter must be interpreted as permitting a Member State to require service of a document instituting proceedings to be effected at the registered office of the company to which that document is addressed and not at the address of a subsidiary of that company.

62.      In view of the reply proposed to the first question, there is no need to answer the second one. That question is based on the premiss that if Article 47 of the Charter and Article 101 TFEU were to modify the rules on service of documents set out in Regulation No 1393/2007, the case-law of the Tribunal Constitucional (Constitutional Court) might be considered contrary to EU law. On the one hand, the answer seems obvious in view of the principle of primacy of EU law. On the other hand, however, it would be difficult to make a clear-cut determination on this issue without knowing precisely either the context of the judgment itself or the reasons that led to its adoption, in particular in the context of the protection of fundamental rights under national law.

63.      Since I take no issue with the national case-law relied on by the referring court with respect to Article 101 TFEU and Article 47 of the Charter, there is no need to appraise that case-law in the light of Article 53 of the Charter and to proceed to a possible balancing of potentially conflicting fundamental rights. Put differently, the provisions of Regulation No 1393/2007, in my view, for the purposes of the present case, comprehensively deal with and weigh the potential competing rights and interests of the various parties.

 Conclusion

64.      In the light of the foregoing, I propose that the Court answer the questions referred by the Tribunal Supremo (Supreme Court, Spain) as follows:

Article 1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000,

must be interpreted as meaning that it precludes legal documents addressed to a parent company established in one Member State from being validly served on a subsidiary of that company in another Member State.

Article 101 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union do not alter that finding.

1      Original language: English.

2      Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

3      See judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800) (‘the judgment in Sumal’).

4      BOE No 7 of 8 January 2000, p. 575.

5      OJ 1994 L 1, p. 3.

6      A summary of that decision was published in the Official Journal of the European Union of 6 April 2017 (OJ 2017 C 108, p. 6).

7      BOE No 159 of 4 July 2007, p. 12946.

8      Directive of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

9      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 (OJ 2012 L 351, p. 1).

10      See Article 4(1) of Regulation No 1215/2012.

11      See Article 7(2) of Regulation No 1215/2012.

12      That is to say, Article 47 of the Charter and Article 101 TFEU.

13      Since the entry into force of the Treaty of Amsterdam on 1 May 1999.

14      See Regulation No 1215/2012 and Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).

15      See, to that effect, in essence, recital 2 of Regulation No 1393/2007.

16      See Article 1(1) of Regulation No 1393/2007. My emphasis.

17      See, to that effect, by way of example, Sujecki, B., in Gebauer, M., Wiedmann, T., Europäisches Zivilrecht, 3rd ed., C.H. Beck, Munich, 2021, Chapter 38 (Europäische Zustellungsverordnung), Erwgr., point 6.

18      Judgment of 19 December 2012 (C‑325/11, EU:C:2012:824) (the ‘judgment in Alder’).

19      See judgment of 19 December 2012 (C‑325/11, EU:C:2012:824, paragraph 26).

20      According to that provision, Regulation No 1393/2007 does not apply where the address of the person to be served with the document is not known.

21      That recital states that the regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party.

22      See Opinion of Advocate General Bot in Alder (C‑325/11, EU:C:2012:583, point 49).

23      That is to say, the situation where the address of the person to be served the document is not known and the situation where the service of a document is on the party’s authorised representative in the Member State where the proceedings are taking place.

24      See judgment of 19 December 2012, Alder (C‑325/11, EU:C:2012:824, paragraph 25).

25      See judgment of 19 December 2012, Alder (C‑325/11, EU:C:2012:824, paragraph 27).

26      There have been parts of doctrine which are, however, critical of the Court’s findings in the judgment in Alder. See, for instance, Cornette, F., ‘Cour de justice de l’Union européenne – 19 décembre 2012, Aff. C-325/11. Note de doctrine’, Revue critique de droit international privé, 102(3) 2013, pp. 700 to 709, at p. 707, who infers from the regulation’s ‘silence’ on the question in which cases the documents to be served must be transmitted to another Member State, that this question is up to the Member States.

27      I am obviously not in a position to give all examples imaginable at this stage. It is for this reason that I will limit myself to a few randomly chosen but nevertheless illustrative issues: who exactly must sign a document, how to deal with a service on children or how documents are served within the Member State of the domicile.

28      In the absence of any reference to the concept of ‘domicile’ in Regulation No 1393/2007, it is safe to rely in this respect on the principle contained in Article 63(1) of Regulation No 1215/2012, pursuant to which a legal person is domiciled at the place where it has its statutory seat, central administration or principal place of business.

29      See judgment of 6 October 2021 (C‑882/19, EU:C:2021:800, paragraph 48 and the case-law cited).

30      See judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 34 and the case-law cited).

31      See judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 38 and the case-law cited).

32      See Article 45(1)(b) of Regulation No 1215/2012.

33      See Article 46 of Regulation No 1215/2012.

34      See Opinion of Advocate General Pitruzzella in Sumal (C‑882/19, EU:C:2021:293, point 68).