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Opinion of Advocate General Pikamäe delivered on 20 October 2022

Opinion of Advocate General Pikamäe delivered on 20 October 2022

Data

Court
Court of Justice
Case date
20 oktober 2022

Opinion of Advocate General pikamäe

delivered on 20 October 2022(1)

Case C‑393/21

Lufthansa Technik AERO Alzey GmbH

Other parties to the proceedings:

Arik Air Limited,

Asset Management Corporation of Nigeria (AMCON),

antstolis Marekas Petrovskis

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania))

"(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 805/2004 - European Enforcement Order for uncontested claims - Stay of enforcement of a judgment certified as a European Enforcement Order - Conditions - Exceptional circumstances - Concept - Measures limiting the enforcement proceedings - Effect of the European Enforcement Order certificate - Suspension in the Member State of origin of the enforceability of the judgment certified as a European Enforcement Order)"

1. The process of drawing up laws, whether national or (in particular) European, is often complex and laborious. Also, it is not uncommon to find, in the texts ultimately adopted, provisions whose vague formulation is intended to resolve problems in the negotiation of laws and which leave it to the courts to reach a decision where the legislature has failed to do so.

2. In the present case, the Court of Justice will thus have to interpret the ‘catch-all’ concept of ‘exceptional circumstances’ contained in Article 23 of Regulation (EC) No 805/2004(2), which places conditions on the opportunity for the competent court or authority in the Member State of enforcement to stay the enforcement of a judgment certified as a European Enforcement Order (‘EEO’) in the Member State of origin.

I. Legal framework

3. Articles 6, 10, 11, 21 and 23 of Regulation No 805/2004 are relevant in the present case.

II. Facts of the dispute, procedure in the main proceedings and questions referred for a preliminary ruling

4. On 14 June 2019, the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany) served on Arik Air Ltd an order for payment of an amount of EUR 2 292 993.32, together with interest, to Lufthansa Technik AERO Alzey GmbH. Then, on 24 October 2019, it issued a writ of partial execution on the basis of which that court adopted and provided, on 2 December 2019, an EEO certificate.

5. A bailiff operating in Lithuania was requested to carry out enforcement in accordance with that certificate and a civil aircraft belonging to Arik Air was seized on 24 January 2020.

6. Arik Air made an application to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany), on the basis of Article 10 of Regulation No 805/2004, seeking the annulment of the EEO certificate and the cessation of the enforced recovery of the debt(3), arguing that the procedural documents had been incorrectly served by the Amtsgericht Hünfeld (Local Court, Hünfeld), which had led to a failure to comply with the time limit for lodging objections to the order for payment made by that court.

7. The debtor company also requested the bailiff acting to stay the enforcement proceedings until the final judgment of the German court ruling on the withdrawal of the EEO certificate and the cessation of the enforced recovery of the debt. By document of 25 March 2020, the bailiff refused that request, taking the view that the relevant national legislation did not provide for the possibility of such a stay on the ground that an action for annulment of the original judgment had been brought before the court of the Member State of origin.

8. By order of 9 April 2020, the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main) made the stay of the enforcement of the judgment certified as an EEO, adopted by the Amtsgericht Hünfeld (Local Court, Hünfeld), conditional on the lodging of a security of EUR 2 000 000(4) and found that Arik Air had failed to demonstrate that the enforcement order was vitiated by irregularities or that the time limits for lodging objections had been exceeded without there being any fault on its part.

9. Arik Air brought an action challenging the bailiff’s refusal to stay the proceedings before the Kauno apylinkės teismas (District Court, Kaunas, Lithuania) and requested that protective measures be applied. By order of 11 June 2020, that court dismissed the action.

10. Ruling on the appeal lodged by Arik Air against that order, the Kauno apygardos teismas (Regional Court, Kaunas, Lithuania), by order of 25 September 2020, set aside the judgment of the court of first instance and ordered that the enforcement proceedings be stayed pending the final judgment of the German court on Arik Air’s claims. The appeal court found that, given the risk of disproportionate harm liable to arise from the enforcement proceedings, the bringing of an action against the EEO certificate before the court of the Member State of origin constituted a sufficient basis for staying those proceedings. It also took the view, contrary to the court of first instance, that since the security set by the German court had not been paid at that stage of the proceedings, there was no ground on which that court had authority to decide on the merits of the application to stay the enforcement measures.

11. Lufthansa Technik AERO Alzey brought an appeal on a point of law against that order before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania), which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

  • How, taking into account the objectives of Regulation No 805/2004, inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret [that] term …?

  • Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which [an EEO] was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?

  • What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the [relevant] circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the [relevant] measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

  • Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?

  • Is the legal regime laid down in Article 36(1) of Regulation [(EU) No 1215/2012(5)] to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?’

III. Procedure before the Court

12. The applicant in the main proceedings, the Lithuanian Government and the European Commission lodged written observations. The parties to the main proceedings, the Lithuanian Government and the Commission submitted oral observations at the hearing on 8 September 2022.

IV. Analysis

A. First, second, third and fourth questions referred for a preliminary ruling

13. By those four questions, which it is appropriate to examine together, the referring court asks the Court of Justice about the meaning and scope of Article 23 of Regulation No 805/2004 as regards both the understanding of the concept of ‘exceptional circumstances’ justifying the stay of the enforcement proceedings and of the extent of the competence, in that respect, of the court of enforcement (first, second and third questions) and the possibility of combining the application of that measure with a limitation of those proceedings (fourth question).

14. It is the Court’s established case-law that it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question.(6)

15. It should be noted that Article 23 of Regulation No 805/2004 contains no reference to the law of Member States. While Article 20(1) of that regulation states that the enforcement procedures are to be governed by the law of the Member State of enforcement, that is without prejudice to the provisions of Chapter IV of that regulation and, in particular, of Article 23, which expressly defines the conditions of a possible stay or limitation of the enforcement proceedings in the specific scenario of a court action brought first by the debtor in the Member State of origin.(7)

16. The reference to the law of the Member State of enforcement contained in Article 20(1) of Regulation No 805/2004 does not, in my view, relate to the constituent elements of the concept of ‘exceptional circumstances’, which is an autonomous concept of EU law. That reference also does not concern the question of the relationship between limitation and stay of enforcement proceedings.

17. It should be recalled that the uniform application of EU law is a fundamental requirement of the European legal order,(8) on which, in the present case, the attainment of the objective of free circulation of judgments certified as EEOs, in accordance with Article 1 of Regulation No 805/2004, depends. That uniform application therefore means that the stay of the enforcement proceedings in respect of such a judgment, whilst it is governed by national procedural law, in particular as regards the form of the document instituting proceedings, the bodies involved in the proceedings or the time limits applicable, must in all the Member States be subject to conditions which are uniform so far as the granting of such relief is concerned.

1. Literal interpretation

18. A simple, literal reading of Article 23 of Regulation No 805/2004 allows the meaning and scope of that provision to be clarified in several respects.

19. First, the stay or limitation of the enforcement proceedings, which occurs exclusively on the initiative of the debtor, are laid down in respect of a particular case in the sense that they are inextricably linked to the existence of judicial proceedings, instigated by that debtor in the Member State of origin, regarding the judgment certified as an EEO, or the certificate itself with a view to having it rectified or withdrawn in accordance with Article 10 of Regulation No 805/2004. That is a necessary, but not sufficient, precondition.

20. Second, Article 23 of Regulation No 805/2004 states that the competent court or authority in the Member State of enforcement ‘may’ limit or stay the enforcement proceedings. The use of that verb shows that it is an option, the exercise of which falls within the wide discretion left to the entity concerned, as merely challenging a judgment certified by an EEO or applying for rectification or withdrawal of the EEO certificate in the Member State of origin cannot, in itself and necessarily, lead to the limitation or stay of the enforcement proceedings. Nonetheless, that discretionary power is limited with regard to a measure staying the proceedings, the imposition of which depends on a finding that exceptional circumstances exist.

21. While the wording of Article 23 of Regulation No 805/2004 does not provide anything of assistance for the purposes of defining the concept of ‘exceptional circumstances’, it should be pointed out that, in everyday language, the adjective ‘exceptional’ is a synonym of ‘rare’. The prerequisite of a situation of an exceptional nature implies that a stay was conceived as a derogation, being itself exceptional. Since the EU legislature intended to limit the stay of enforcement proceedings to exceptional situations, Article 23 of Regulation No 805/2004 must necessarily be interpreted strictly.(9)

22. Third, the references to the three decisions(10) which may be adopted by the competent court or authority in the Member State of enforcement are separated by the coordinating conjunction ‘or’, which may, linguistically, have an alternative or cumulative meaning.(11) I would observe, in addition, that Article 23 of Regulation No 805/2004 is headed ‘Stay or limitation of enforcement’(12).

2. Teleological interpretation

23. It is apparent from the wording of Article 1 of Regulation No 805/2004 that that regulation seeks to ensure, for uncontested claims, the free circulation of judgments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement. The principle of mutual trust between the Member States, which is based, in particular, on reciprocal trust in the administration of justice in those States to which recital 18 of that regulation refers, results, under Article 5 of that regulation, in the recognition and enforcement of judgments which have been certified as EEOs in the Member State of origin, in the other Member States.(13)

24. Thus, in accordance with Article 5 of Regulation No 805/2004, a judgment which has been certified as an EEO in the Member State of origin is to be recognised and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition.

25. In that context, Article 23 of Regulation No 805/2004, inasmuch as it constitutes an obstacle to the attainment of the fundamental objective of that regulation, according to the language of recital 8 of that regulation, of accelerating and simplifying the enforcement of a judgment in a Member State other than that in which it has been given, must be strictly interpreted, which supports the literal interpretation.

3. Contextual interpretation

26. A contextual interpretation of Article 23 of Regulation No 805/2004, encompassing the origins of that and the other provisions of that regulation, but also other legal instruments in the field of judicial cooperation in civil matters, is, in my view, essential in order to determine the meaning and scope of that article.

(a) Division of competences between the bodies of the Member State of origin and those of the Member State of enforcement

27. As regards the general scheme of Regulation No 805/2004, its distinctive feature is undoubtedly the abolition of any intermediate proceedings in a Member State prior to the recognition and enforcement in that State of a judgment relating to an uncontested claim or, in other words, the complete abolition of exequatur. In accordance with Article 20(1) of Regulation No 805/2004, a judgment certified as an EEO is to be enforced under the same conditions as a judgment handed down in the Member State of enforcement.(14) While that new system of direct enforcement of judgments is evidently favourable to the creditor bringing proceedings, it nonetheless seeks a fair balance between the interest of the creditor and that of the debtor, at least presumed to be such.

28. First, the judicial proceedings in which the judgment was handed down in the Member State of origin must have complied with the minimum procedural standards referred to in Chapter III of Regulation No 805/2004, the purpose of which is to ensure respect for the debtor’s rights of defence.(15) Second, Regulation No 805/2004 provides the debtor the possibility of having a subsequent review conducted of the original judgment and the accompanying EEO certificate, dividing competence, in that regard, between the bodies of the Member State of origin and those of the Member State of enforcement.

29. While the latter are thus entitled to deal with an application for refusal of enforcement or an application for stay or limitation of the enforcement proceedings,(16) Article 21(2) of Regulation No 805/2004 clearly provides that ‘under no circumstances may the judgment or its certification as a European Enforcement Order be reviewed as to their substance in the Member State of enforcement’.(17) No challenge on the part of a debtor regarding the existence and merits of a claim or regarding compliance with the requirements for certification may be made and assessed in that State.

30. That detail is essential in determining the meaning of the concept of ‘exceptional circumstances’, namely that it appears to me that it must exclude any reference to an assessment by the competent court or authority in the Member State of enforcement, even prima facie, of the merits of the actions brought by the debtor in the Member State of origin, as referred to in Article 23 of Regulation No 805/2004.(18)

31. That clear division of competences results from the fact that the claim and the instrument permitting enforcement are established on the basis of the law in force in the Member State of origin.(19) In addition, as part of the procedure leading to the certification of a judgment as an EEO, the body carrying out that certification will have to determine whether the judicial proceedings in the Member State of origin which led to the adoption of the original judgment met the requirements set out in Chapter III of Regulation No 805/2004. Over and above a review of the propriety of those proceedings and of compliance with the rules on jurisdiction, Article 6 of that regulation requires, inter alia, a review of the enforceability of the judgment handed down and of the nature of the claim.(20)

32. Review of the judgment which brought the proceedings to an end by deciding on the dispute, and of the EEO certificate, is entrusted to a court of the Member State of origin, which is best placed to acquaint itself with the legal framework of the dispute and to confirm, regarding its substance, the validity of the abovementioned judgment and the accompanying certificate. Moreover, in the scenario of an application for review of the judgment within the meaning of Article 19 of Regulation No 805/2004 or an application for rectification or withdrawal of an EEO certificate as provided for in Article 10 of that regulation, the competent court of the Member State of origin is the same one which adopted the two instruments concerned.

33. In those circumstances, it cannot be accepted, in my opinion, that the concept of ‘exceptional circumstances’ may involve the need for a finding by the competent court or authority in the Member State of enforcement of a prima facie case in the actions brought by the debtor, set out in Article 23 of Regulation No 805/2004. Such a conclusion addresses the need to ensure the rapid enforcement of judgments, to the extent that the assessment of that case would involve making the process objectively more complex, while preserving the legal certainty on which the reciprocal trust in the administration of justice in the European Union, to which recital 18 of that regulation refers, is based. To put it another way, it does not appear to me reasonable, legally and practically, to ask the competent body in the Member State of enforcement to understand the law of the Member State of origin for the purposes of determining the strength of the pleas in law raised by the debtor in support of the actions initiated by it in the Member State of origin.(21)

34. In addition, that interpretation appears to me to be supported by the origins of Article 23 of Regulation No 805/2004. It should be pointed out that that provision, as worded in the proposal for a Regulation,(22) mentioned, as the first measure under consideration, the stay of the enforcement proceedings, with no further details. The explanatory memorandum indicated that ‘the assessment of the prospects for success of the action taken by the debtor … as well as the likelihood of irreparable damage caused by unconditional enforcement’ should be among the guiding considerations in applying that provision.

35. It must be stated that neither Article 23 of Regulation No 805/2004, nor the preamble to that act, includes any reference to those two circumstances and that, in addition to a reversal of the order of the possible measures, the imposition of a stay is made conditional on a finding of ‘exceptional circumstances’. Those changes in the text reflect, in my opinion, the consistency sought by the legislature with, first, the strict ring-fencing(23) of the role of the bodies of the Member State of enforcement contained in Article 21(2) of that regulation and, second, the objective of ensuring the free circulation of judgments in all the Member States, in this case by placing limits on the discretionary power of those bodies with regard to the measure having the greatest impact.(24)

(b) The combined application of Article 6(2) and Article 11 of Regulation No 805/2004

36. It is important to emphasise that the term ‘certificate’ must be used with care, since Regulation No 805/2004 provides for no fewer than three certificates, with different purposes. The first is that referred to in Article 6(1) of that regulation, corresponding to Annexes I to III, titled ‘European Enforcement Order certificate’.(25) In order for a judgment to be capable of being certified as an EEO under Article 6, the judgment must relate to an uncontested claim and must satisfy certain conditions laid down in that article. One of the conditions for such certification is that laid down in Article 6(1)(a), namely that the judgment must be enforceable under the law of the Member State of origin.(26) A judgment which is not enforceable cannot, therefore, serve as the basis for the issue of an EEO and, by way of supplement to that provision, Article 11 of Regulation No 805/2004 provides that an EEO certificate is to have legal effect only within the limits of the enforceability of the judgment.

37. The second certificate is that mentioned in Article 6(2) of Regulation No 805/2004, corresponding to Annex IV, headed ‘Certificate of lack or limitation of enforceability’. If the original judgment certified as an EEO has ceased to be enforceable or its enforceability has been suspended or limited by a court of the Member State of origin, the debtor can obtain that certificate upon application made at any time to the court which initially issued the enforcement order.

38. The third certificate is that provided for in Article 6(3) of Regulation No 805/2004, corresponding to Annex V, headed ‘European Enforcement Order replacement certificate following a challenge’. The purpose of that provision is to allow creditors to update their position by having the judgment handed down following a challenge in the Member State of origin, upholding the original judgment, also certified as an EEO.

39. I note that, in that context, the applicant in the main proceedings argues that the grounds for stay or limitation of the enforcement of a judgment provided for in Article 23 of Regulation No 805/2004 must be analysed against the backdrop of Article 6(2) and Article 11 of that regulation. According to that party, only the production before the court of enforcement of the certificate provided for in Article 6(2) of that regulation would provide a basis for a decision by that court to stay or limit enforcement.

40. That interpretation, in my opinion, essentially confuses two scenarios which are contemplated separately by Regulation No 805/2004. Article 23 of that regulation concerns a temporary and uncertain situation, specifically the bringing of proceedings by the debtor before the court of origin against the certified initial judgment or against the certificate itself, which continue to have full effect in the absence of any provisions attaching a suspensive effect to the abovementioned actions. Pending the outcome of those proceedings, which is by definition uncertain, the competent court or authority of the Member State of enforcement may, in the exercise of its discretion, adopt measures staying or limiting the enforcement proceedings.

41. That is not the situation concerned by Article 6(2) of Regulation No 805/2004, read in conjunction with Article 11 of that act, which concerns an established change in the enforceability of the order resulting in the issue of a new certificate corresponding to Annex IV to that regulation. In view of the link, expressed in mandatory terms by the latter provision, between the enforceability of the judgment and the EEO, any subsequent change in that enforceability (permanent or temporary cessation following a stay, as well as limitation of its scope) will necessarily affect the enforcement proceedings. As the Commission emphasises, it will be for the court of the Member State of enforcement, the recipient of the abovementioned certificate, to guarantee the effective application of Article 11 of Regulation No 805/2004 in the implementation of its national law.

42. I consider, in those circumstances, that to restrict the imposition of the measures staying or limiting the enforcement proceedings provided for in Article 23 of Regulation No 805/2004 solely to cases where a certificate has been produced indicating that the judgment is no longer enforceable or that its enforceability has been limited, would effectively deprive that provision of all practical effect, which cannot be accepted.

(c) Breach of public policy in the Member State of enforcement

43. The EU legislature cannot be accused of having failed to seek to facilitate the cross-border recovery of claims in civil and commercial matters: EEO, European order for payment(27) and European Small Claims Procedure,(28) all legal instruments whose aim is the free circulation of judgments in their respective fields, to which must be added the rule of general law constituted by Regulation No 1215/2012. That significant, or even inflationary, for some,(29) level of legislative activity does raise questions regarding the overall coherence of the system.

44. The same applies to the possibility for the debtor to have the original judgment reviewed at the stage of its enforcement by the bodies of the Member State of enforcement. While all the foregoing instruments lay down procedures both for staying or limiting the enforcement proceedings and for the refusal of enforcement, it must be stated that the conditions for the application of those measures are not consistent.(30)

45. Article 21 of Regulation No 805/2004 provides that enforcement is to be refused by the competent court in the Member State of enforcement if the judgment certified as an EEO is irreconcilable with an earlier judgment given in any Member State or in a third country. That is the only ground for refusal laid down by that regulation, whereas Regulation No 1215/2012 contains no fewer than five such grounds, including breach of public policy in the Member State addressed. I note, however, that the Lithuanian Government argues that the concept of ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 ought to be interpreted as encompassing situations where the enforcement of a judgment certified by an EEO could affect public policy in procedural matters in the Member State of enforcement.

46. That interpretation cannot, in my opinion, be accepted, inasmuch as it disregards the clear division of competences between the bodies of the Member State of origin and those of the Member State of enforcement, analysed earlier. The latter bodies are not required to determine, in any way, the lawfulness of the original judgment. The risk of judicial conflict on that point cannot be accepted, in the light of the principle of legal certainty.

47. In addition, an examination of the travaux préparatoires reveals that, at the 2515th Council meeting – Justice and Home Affairs – on 5 and 6 June 2003, the discussions covered the possibility of a refusal of enforcement in the Member State of enforcement, including on the basis of the criterion of ‘public policy’, specifically already mentioned in Regulation (EC) No 44/2001,(31) which predated Regulation No 805/2004. The final text of Regulation No 805/2004 shows that that criterion was not adopted. It seems to me, therefore, difficult to accept that the question of breach of public policy in the Member State of enforcement may be reintroduced by means of an interpretation of the concept of ‘exceptional circumstances’ justifying the stay of the enforcement proceedings under Article 23 of Regulation No 805/2004.

48. Finally, a ground for stay based on breach of public policy in the Member State of enforcement, whether substantive or procedural, appears to me to be incompatible with the temporary nature of the measures set out in the abovementioned article, which are necessarily limited legally and in time by the decision taken in the Member State of origin concerning the actions initiated by the debtor. A decision confirming the validity of the original judgment would mark the end of the effects of the stay of the enforcement proceedings but would fail to address the problem of the breach of public policy in the Member State of enforcement which gave rise to the adoption of that measure. However, that problem could not be resolved under Regulation No 805/2004, in the absence of appropriate provisions, a situation which is also unacceptable in the light of the principle of legal certainty, which is one of the general principles of EU law.

(d) The combined application of the measures referred to in Article 23 of Regulation No 805/2004

49. As regards the abovementioned question, it is appropriate to take into account the development of the drafting of the provisions of Regulations No 1896/2006, No 861/2007 and No 1215/2012 relating to the possibility of stay or limitation of enforcement proceedings.

50. Thus, while Article 23 of Regulation No 1896/2006 is formulated in an identical manner to Article 23 of Regulation No 805/2004, with the conjunction ‘or’ used twice, between the reference to each of the possible measures, which shows that it is alternative in nature, that is not the case in the other later provisions of secondary legislation mentioned above. Article 23 of Regulation No 861/2007 and Article 44 of Regulation No 1215/2012 include the conjunction in question only between the second and third possible measures, implying that the first and second measures may be combined.

51. That development in the legislation seems to me to reflect and confirm the singular nature of a stay, which is the strictest measure given that it means that there is to be no implementation whatsoever of any enforcement measures by the creditor. I note, in that regard, that, unlike Article 44 of Regulation No 1215/2012, Article 23 of Regulation No 805/2004 does not provide that the enforcement proceedings may be suspended ‘either wholly or in part’. The reference simply to the fact that the competent court or authority in the Member State of enforcement may ‘stay’ those proceedings can refer, in my opinion, only to the scenario of bringing those proceedings to a complete halt.

52. The combination of the limitation measures with a stay, in the sense indicated, seems to me out of the question from a logical and practical perspective, a conclusion which even the heading of Article 23 of Regulation No 805/2004 allowed, with the use of the conjunction ‘or’ indicating separation.(32) On the other hand, it is conceivable in theory, even if unlikely in practice, that the competent court or authority of the Member State of enforcement could require a creditor bringing proceedings to provide security as a condition of the implementation of enforcement measures of an exclusively protective nature. That combination of measures would fall within the wide discretion which those bodies have and must be carried out taking into consideration the particular circumstances of the relevant case.

4. Interim conclusion

53. The various meanings of the concept of ‘exceptional circumstances’ proposed by the interested parties and analysed above appear to me, in reality, to be inconsistent with a logical and reasonable interpretation of Article 23 of Regulation No 805/2004.

54. To the extent that the stay of enforcement measures is involved, it is clear that it is the effect of that enforcement which is targeted, the ‘exceptional circumstances’ being those related to the damage which could be caused to the debtor by the immediate enforcement of a judgment. In the light of the requirement that they be exceptional, those circumstances must be characterised by the seriousness and the irreparable nature of the damage resulting from that enforcement, in the context of a temporary and uncertain situation arising from the proceedings initiated by the debtor in the Member State of origin. Those elements must thus reflect an urgent situation which justifies the need for an interim ruling in order to avoid such damage being caused to the party seeking the stay.(33)

55. As regards the interpretation of the abovementioned damage, it is possible to draw on the case-law of the Court relating to the grant of a stay of enforcement of an act, provided for in Article 278 TFEU.

56. In accordance with that case-law, it remains for the party seeking an interim measure, and therefore, in this case, the debtor, to set forth and establish the likelihood of serious and irreparable damage occurring.(34) While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the applicant is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely.(35)

57. As to the nature of the damage, the Court has repeatedly held that purely pecuniary damage cannot, in principle or save in exceptional circumstances, be regarded as irreparable, since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage, where applicable, by means of an action for compensation.(36) The competent body of the Member State of enforcement will have to assess the evidence as to whether the immediate enforcement of the judgment which is the subject of the application for stay of enforcement would be capable of leading to irreversible damage for the debtor, which could not be remedied should that judgment be declared invalid in the Member State of origin or should the EEO certificate, on which the possibility of direct enforcement in another State depends, be withdrawn.

58. It should be pointed out that, in view of the scope of Regulation No 805/2004, it concerns both civil and commercial claims and the debtors can therefore be natural or legal persons. As far as economic operators are concerned, it is common ground that the prospect of a situation that would imperil their financial viability before the conclusion of the main proceedings against the original judgment or the certificate would be capable of constituting the necessary damage.(37) If the debtor is a natural person, it is necessary to determine whether the enforcement of the judgment would lead to a seizure, in whole or in part, of his or her assets capable of having a serious detrimental effect on the living conditions of the interested party and his or her family, such as a forced sale of the family home.(38)

59. If the evidence submitted by the debtor allowed a finding of economic or social difficulties, but not that they were of a serious and irreversible nature, the competent body of the Member State of enforcement would then have the option of implementing the limitation measures provided for in Article 23(a) and (b) of Regulation No 805/2004, on the condition that the debtor had applied for them, where applicable by way of an argument in the alternative. It is important to emphasise, in that regard, that that article is to be applied in accordance with the principle that the parties delimit the subject matter of the action.

60. It should be recalled that, according to the case-law of the Court, the court hearing the interim application must also balance the interests at stake where the other two conditions(39) for the stay of enforcement are met.(40) It appears to me that that solution must be transposed to the present case, in view of the wide discretion of the competent body in the Member State of enforcement provided for in Article 23 of Regulation No 805/2004, which seeks to strike a balance between the interest of the creditor, which is to ensure rapid enforcement of the judgment, and the interest of the debtor, which is to avoid potentially serious and irreparable damage if the loss caused by immediate enforcement cannot be recovered. In the context of that balancing of interests, the defendant, and creditor, will be able to argue that the fact of being deprived of the possibility of having the judgment enforced immediately, and therefore of receiving the sums in question straightaway, may permanently deprive the creditor of the benefit of the creditor’s rights if the debtor’s actions are later dismissed.

61. It is therefore for the referring court, in examining the application for stay of the enforcement proceedings submitted by the debtor company, to assess, in the light of all the relevant circumstances in the case in the main proceedings, whether serious and irreparable damage, in the sense indicated, may be suffered by that company in the event of the original judgment being enforced immediately and, if so, to balance the interests at stake.(41)

B. Fifth question referred for a preliminary ruling

62. By its fifth question, the referring court seeks to establish whether, in the event of the suspension in the Member State of origin of the enforceability of the judgment certified as an EEO, the enforcement proceedings brought in the Member State of enforcement are automatically stayed, in line with the legal regime defined in Article 36(1) of Regulation No 1215/2012, or whether a specific decision, corresponding to a decision under Article 44(2) of that regulation, must be adopted by the competent body of that State.

1. Admissibility

63. According to the settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it.(42)

64. In the present case, it is common ground that, as at the date on which the referring court submitted the present request for a preliminary ruling to the Court, there was in fact a case pending in which it was called upon to give a judgment which was capable of taking account of the preliminary ruling to come,(43) it being observed that while no decision terminating or temporarily suspending the enforceability of the original judgment had been taken in the Member State of origin as at that date,(44) it was and continues to be possible that that may happen as part of the appeal proceedings, which continue to be pending, instigated by the debtor in that State and may give rise to a new request on its part.

65. It should also be noted 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.(45)

2. Substance

66. Contrary to what might be deduced from the, admittedly, ambiguous drafting of the fifth question referred for a preliminary ruling, the referring court does not envisage the possibility of implementing the provisions of Regulation No 1215/2012 in enforcement proceedings falling, as in the present case, within the scope of Regulation No 805/2004.(46) It questions the legal consequences for those proceedings of a decision in the Member State of origin suspending the enforceability of the original judgment, based on the observation that Regulation No 805/2004 does not explicitly govern with that issue, unlike Regulation No 1215/2012, whether in Article 36(1) or Article 44(2) of the latter regulation.(47)

67. That premiss is, in my opinion, incorrect, as Article 6, and more specifically Article 6(1) and (2), as well as Article 11 of Regulation No 805/2004 constitute the relevant legal framework, which is already set out in this Opinion.(48) It is apparent from that framework that, once the certificate provided for in Article 6(2) of that regulation has been issued by the court of origin, then communicated to the competent authorities in the Member State of enforcement by the party against whom or which enforcement is sought, logically, those authorities must, given that the terms of Article 11 of Regulation No 805/2004 exclude any discretion, establish all the related implications regarding the conduct of the enforcement proceedings.

68. Thus, the indication in the abovementioned certificate that the enforceability of the judgment initially certified as an EEO has been suspended can only lead to an identical measure in the Member State of enforcement. A declaration of invalidity and a subsequent setting aside of that judgment in the Member State of origin, synonymous with the loss of enforceability, would necessarily result in the cessation of the enforcement proceedings. As the Commission correctly states, since the procedural aspects of the implementation of Article 11 are not laid down in Regulation No 805/2004, they are governed by the law of the Member State of enforcement, which must be applied in a manner which guarantees the full effectiveness of that provision.

V. Conclusion

69. In the light of the foregoing considerations, I propose that the Court answer the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) as follows:

  1. Article 23 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

    must be interpreted as meaning that the words ‘exceptional circumstances’, used in that provision, cover the serious and irreparable damage which may be caused to the debtor by the immediate enforcement of a judgment certified as a European Enforcement Order, constituting an urgent situation which it is up to the debtor to establish. If the debtor does so, it is for the competent court or authority of the Member State of enforcement to balance the interests at stake in the light of all of the relevant circumstances of the case.

    Only the measures limiting the enforcement proceedings, referred to in Article 23(a) and (b) of that regulation, may be the subject of a combined application.

  2. Articles 6 and 11 of Regulation No 805/2004

    must be interpreted as meaning that where the enforceability of a judgment certified as a European Enforcement Order has been suspended in the Member State of origin and the certificate provided for in Article 6(2) of that regulation has been sent to the competent body in the Member State of enforcement, that body is required, when implementing the applicable national rules, to ensure the full effect of Article 11 of that regulation by staying the enforcement proceedings.