The ECJ has certainly been busy in March – judgements and opinions involved civil justice, competition law, age discrimination, taxes, etc…
Here is an opinion I found interesting:
In Roda Golf & Beach Resort SL (C-14/08) the Advocate General suggested that Regulation 1348/2000 on the service of judicial and extra-judicial documents (which requires Member States to appoint authorities to transmit and receive documents and sets out some other conditions for service and translation) also covers extra-judicial documents (here – instruments of notification executed before a notary) which were served without court proceedings actually taking place. It is an interesting case, where a Spanish company attempts to use the resources of the justice system without actually having commenced judicial proceedings.
Some background on the Regulation and its approach to extra-judicial documents: the Regulation is aimed at speedy service of documents between judicial authorities of Member States (in the context of improving the functioning of the area of freedoom, security and justice – Articles 61, 65 and 67 of the EC Treaty). Although it requires some level of harmonisation in requirements for service, in many aspects it refers to the national laws for exact rules on what the judicial and extra-judicial documents are and how they should be served. The Regulation also does not define extra-judicial documents (leaving this to the Member States – or so it would seem?…).
One aspect of the opinion in Roda Golf relates to admissibility. The preliminary reference to the ECJ was made by a Spanish court which was considering the dispute between the company (Roda Golf) and a court clerk who refused service (the clerk’s point was that the Regulation did not cover extra-judicial documents where no court proceedings were taking place). WAS THE REFERENCE ADMISSIBLE? Under Article 68 of the Treaty only courts of last instance can make such references. The Commission argued that the court here did not meet this condition, as it was not the top court in Spain. The AG suggests that requirements are met and the reference is admissible. It is not necessary to be the ‘top in the land.’ The approach should rather be: if there is no right of appeal from the decisions of this particular court – the reference is admissible. Another problem was as follows: preliminary references are normally only possible if there are inter partes proceedings and if the court exercises its judicial functions. At first sight it may seem that this is not the case here. Interestingly, the AG suggests that the proceedings were inter partes (there is a dispute between the company and the court clerk), and in any case none of these requirements are set in stone – exceptions are permissible (the Job Centre case for example established that it was not necessary for the matter referred to concern judicial functions). So the reference is admissible after all – at least according to Ruiz-Jarabo Colomer.
What about extra-judicial documents? No doubt the Regulation does not define them, and it does leave a lot to the Member States’ laws (although not as much as was originally thought – see the judgements in 443/03 Leffler and in 14/07 Weiss und Partner – both the judgement stress the need for the Regulation to be applied uniformly). Does this imply that Member States can unilaterally define what an extra-judicial document is for the purposes of the Regulation? Or should the definition be provided by the ECJ? The AG invites the ECJ to provide a definition, although he suggests that this should be done with due consideration given to the diversity of national laws and procedures.
The AG’s opinion sets out three conditions which the definition of extra-judicial documents should include. The documents must: a. require the involvement of an authority or a public act, b. give rise to specific and different legal effects because of this involvement, and c. be used to suport a claim in possible court proceedings.
So the conclusion is that it is not necessary for the document to be part of court proceedings already commenced.
On the other hand, the AG argues: “There must be evidence of a connection, however slight, between the need for service, on the one hand, and the activation of the mechanisms of Regulation No 1348/2000, on the other. Otherwise, national courts would become courier services for litigants who have not even commenced proceedings.” (para. 92).
