Bot AG in Zulfikarpašić: Are notaries ‘courts’ and do they issue ‘judgments’?

In Zulfikarpašić Case C-484/15, Bot AG opined on 8 September. At issue is the intepretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined.

The question 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, of a writ of execution issued by a notary based on an authentic document.  The referring court essentially inquires 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.

Article 4(1) of Regulation 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’. Article 2(a) of the Brussels I Recast Regulation now includes exactly the same definition. Yves Bot himself summarised the CJEU’s case-law on the notion of ‘judgment’ in the Brussels I Regulation in Gothaer. He reiterates that Opinion here and I should like to refer readers to my earlier summary of the Opinion in Gothaer.

After a tour de table of the various opinions expressed ia by the EC and by a number of Member States, the Advocate General submits that 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 (at 108). A functional approach, therefore (at 109).

Advocate General Bot submits therefore 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. 

Whether these conditions are fulfilled is for the national courts to assess.

This Opinion and the eventual judgment by the Court will also be relevant for the application of the Succession Regulation, 650/2012. In matters covered by that Regulation, notaries throughout the EU have an important say and may quite easily qualifies as a ‘court’. Bot AG refers to the Regulation’s definition of ‘court’ at 71 ff of his current Opinion.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

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