Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

16 February 2023 (*)

(Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EC) No 805/2004 – European Enforcement Order for uncontested claims – Article 23(c) – Stay of enforcement of a judgment certified as a European Enforcement Order – Exceptional circumstances – Concept)

In Case C‑393/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania), made by decision of 23 June 2021, received at the Court on 28 June 2021, in the proceedings brought by

Lufthansa Technik AERO Alzey GmbH

intervening parties:

Arik Air Limited,

Asset Management Corporation of Nigeria (AMCON),

antstolis Marekas Petrovskis,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L.S. Rossi, J.-C. Bonichot, S. Rodin and O. Spineanu-Matei (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 8 September 2022,

after considering the observations submitted on behalf of:

–        Lufthansa Technik AERO Alzey GmbH, by F. Heemann, Rechtsanwalt, and A. Juškys, advokatas,

–        Arik Air Limited, by L. Augytė-Kamarauskienė, advokatė,

–        Asset Management Corporation of Nigeria (AMCON), by A. Banys, A. Ivanauskaitė and K. Švirinas, advokatai,

–        the Lithuanian Government, by K. Dieninis, V. Kazlauskaitė-Švenčionienė and E. Kurelaitytė, acting as Agents,

–        the European Commission, by S.L. Kalėda and S. Noë, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 October 2022,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of 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 (OJ 2004 L 143, p. 15) and Article 36(1) and Article 44(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

2        The request has been made in proceedings between the airline Arik Air Limited and Lufthansa Technik AERO Alzey GmbH (‘Lufthansa’) concerning a request for a stay of the enforcement proceedings brought against Arik Air on the basis of a European Enforcement Order issued by a German court in favour of Lufthansa.

 Legal context

 Regulation No 805/2004

3        Recitals 8, 18 and 20 of Regulation No 805/2004 are worded as follows:

‘(8)      In its Tampere conclusions, the European Council considered that access to enforcement in a Member State other than that in which the judgment has been given should be accelerated and simplified by dispensing with any intermediate measures to be taken prior to enforcement in the Member State in which enforcement is sought. A judgment that has been certified as a European Enforcement Order by the court of origin should, for enforcement purposes, be treated as if it had been delivered in the Member State in which enforcement is sought. …

…

(18)      Mutual trust in the administration of justice in the Member States justifies the assessment by the court of one Member State that all conditions for certification as a European Enforcement Order are fulfilled to enable a judgment to be enforced in all other Member States without judicial review of the proper application of the minimum procedural standards in the Member State where the judgment is to be enforced.

…

(20)      Application for certification as a European Enforcement Order for uncontested claims should be optional for the creditor, who may instead choose the system of recognition and enforcement under [Council] Regulation (EC) No 44/2001 [of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1),] or other Community instruments.’

4        According to Article 1 of that regulation, entitled ‘Subject matter’:

‘The purpose of this Regulation is to create a European Enforcement Order for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement.’

5        Under Article 5 of that regulation, entitled ‘Abolition of exequatur’:

‘A judgment which has been certified as a European Enforcement Order in the Member State of origin shall 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.’

6        Article 6 of that regulation, entitled ‘Requirements for certification as a European Enforcement Order’, provides, in paragraph 1(a) and paragraph 2:

‘1.      A judgment on an uncontested claim delivered in a Member State shall, upon application at any time to the court of origin, be certified as a European Enforcement Order if:

(a)      the judgment is enforceable in the Member State of origin; and

…

2.      Where a judgment certified as a European Enforcement Order has ceased to be enforceable or its enforceability has been suspended or limited, a certificate indicating the lack or limitation of enforceability shall, upon application at any time to the court of origin, be issued, using the standard form in Annex IV.’

7        Article 10 of Regulation No 805/2004, entitled ‘Rectification or withdrawal of the European Enforcement Order certificate’, provides in paragraphs 1 and 2:

‘1.      The European Enforcement Order certificate shall, upon application to the court of origin, be

(a)      rectified where, due to a material error, there is a discrepancy between the judgment and the certificate;

(b)      withdrawn where it was clearly wrongly granted, having regard to the requirements laid down in this Regulation.

2.      The law of the Member State of origin shall apply to the rectification or withdrawal of the European Enforcement Order certificate.’

8        Article 11 of that regulation, entitled ‘Effect of the European Enforcement Order certificate’, is worded as follows:

‘The European Enforcement Order certificate shall take effect only within the limits of the enforceability of the judgment.’

9        According to Article 18 of that regulation, entitled ‘Cure of non-compliance with minimum standards’:

‘1.      If the proceedings in the Member State of origin did not meet the procedural requirements as set out in Articles 13 to 17, such non-compliance shall be cured and a judgment may be certified as a European Enforcement Order if:

(a)      the judgment has been served on the debtor in compliance with the requirements pursuant to Article 13 or Article 14; and

(b)      it was possible for the debtor to challenge the judgment by means of a full review and the debtor has been duly informed in or together with the judgment about the procedural requirements for such a challenge, including the name and address of the institution with which it must be lodged and, where applicable, the time limit for so doing; and

(c)      the debtor failed to challenge the judgment in compliance with the relevant procedural requirements.

2.      If the proceedings in the Member State of origin did not comply with the procedural requirements as set out in Article 13 or Article 14, such non-compliance shall be cured if it is proved by the conduct of the debtor in the court proceedings that he has personally received the document to be served in sufficient time to arrange for his defence.’

10      Article 20 of that regulation, entitled ‘Enforcement procedure’, provides, in paragraph 1:

‘Without prejudice to the provisions of this Chapter, the enforcement procedures shall be governed by the law of the Member State of enforcement.

A judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement.’

11      Article 21 of Regulation No 805/2004, entitled ‘Refusal of enforcement’, provides:

‘1.      Enforcement shall, upon application by the debtor, be refused by the competent court in the Member State of enforcement if the judgment certified as a European Enforcement Order is irreconcilable with an earlier judgment given in any Member State or in a third country, provided that:

(a)      the earlier judgment involved the same cause of action and was between the same parties; and

(b)      the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member State of enforcement; and

(c)      the irreconcilability was not and could not have been raised as an objection in the court proceedings in the Member State of origin.

2.      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.’

12      Under Article 23 of that regulation, entitled ‘Stay or limitation of enforcement’:

‘Where the debtor has

–        challenged a judgment certified as a European Enforcement Order, including an application for review within the meaning of Article 19, or

–        applied for the rectification or withdrawal of a European Enforcement Order certificate in accordance with Article 10,

the competent court or authority in the Member State of enforcement may, upon application by the debtor:

(a)      limit the enforcement proceedings to protective measures; or

(b)      make enforcement conditional on the provision of such security as it shall determine; or

(c)      under exceptional circumstances, stay the enforcement proceedings.’

 Regulation No 1215/2012

13      Article 36(1) of Regulation No 1215/2012 provides:

‘A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.’

14      Article 44 of that regulation provides:

‘1.      In the event of an application for refusal of enforcement of a judgment pursuant to Subsection 2 of Section 3, the court in the Member State addressed may, on the application of the person against whom enforcement is sought:

(a)      limit the enforcement proceedings to protective measures;

(b)      make enforcement conditional on the provision of such security as it shall determine; or

(c)      suspend, either wholly or in part, the enforcement proceedings.

2.      The competent authority in the Member State addressed shall, on the application of the person against whom enforcement is sought, suspend the enforcement proceedings where the enforceability of the judgment is suspended in the Member State of origin.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

15      On 14 June 2019, the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany) issued against Arik Air an order for payment with a view to recovering a debt of EUR 2 292 993.32 owed to Lufthansa. On the basis of that order, that court issued on 24 October 2019 a European Enforcement Order and, on 2 December 2019, a European Enforcement Order certificate.

16      A bailiff operating in Lithuania (‘the bailiff’) was instructed by Lufthansa to carry out the enforcement order in accordance with the certificate.

17      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 withdrawal of the European Enforcement Order certificate and the termination of the compulsory recovery of the debt, on the ground that the procedural documents had been improperly served by the Amtsgericht Hünfeld (Local Court, Hünfeld), which had lead to a failure to comply with the time limit available to it for lodging an objection to the order for payment issued by that court.

18      Arik Air also submitted to the bailiff in Lithuania a request for the enforcement proceedings to be stayed until the German court, otherwise seised to that effect, has given a final ruling on the application for withdrawal of the European Enforcement Order certificate and termination of the compulsory recovery. The bailiff refused to grant that request for a stay, taking the view that the relevant national legislation did not make provision for such a stay to be requested on the ground, as in the present case, that an action against the judgment to be enforced has been brought before a court of the Member State of origin.

19      By order of 9 April 2020, the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main) made the stay of enforcement of the European Enforcement Order of 24 October 2019 conditional on the provision by Arik Air of a security in the amount of EUR 2 000 000. That court stated that, in the absence of payment of that security, the request for suspension of the European Enforcement Order could not be granted, since Arik Air had failed to demonstrate that that order had been issued improperly or that the time limits for lodging an objection had been exceeded through no fault of its own.

20      Arik Air brought an action before the Kauno apylinkės teismas (District Court, Kaunas, Lithuania) challenging the bailiff’s decision refusing to stay the enforcement proceedings. By order of 11 June 2020, that court dismissed the action.

21      By order of 25 September 2020, the Kauno apygardos teismas (Regional Court, Kaunas, Lithuania), ruling on the appeal by Arik Air, set aside the order of the Kauno apylinkės teismas (District Court, Kaunas) of 11 June 2020 and decided to stay the enforcement proceedings at issue pending the final ruling of the German court on Arik Air’s claims. The Kauno apygardos teismas (Regional Court, Kaunas) held that, given the risk of disproportionate harm liable to arise from the enforcement proceedings against Arik Air, the bringing of an action against the European Enforcement Order certificate before the court of the Member State of origin constituted a sufficient basis for staying those proceedings. It also found, contrary to the Kauno apylinkės teismas (District Court, Kaunas), that, in the absence of information confirming that the security set by the German court had been paid at that stage of the proceedings, there was no reason to consider that it was for the latter court to decide on the merits of the request for the enforcement measures to be stayed.

22      Lufthansa brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania), which is the referring court, against the order of the Kauno apygardos teismas (Regional Court, Kaunas) of 25 September 2020.

23      That court is uncertain, first of all, as to the scope, conditions for application and extent of the review carried out by the competent courts or authorities of the Member State of enforcement under Article 23(c) of Regulation No 805/2004.

24      In that regard, that court considers that it is clear from the very wording of that article that the competent court or authority in the Member State of enforcement has a margin of discretion as whether or not to order a stay of the enforcement proceedings, and asks what the extent of that discretion is. It observes, first, that the terms ‘challenged’ and ‘including’ used in that article imply that all legal remedies in the Member State of origin are covered, a condition which appears to be satisfied in the present case, and, second, that the scope of the concept of ‘exceptional circumstances’ should be interpreted uniformly in the Member States.

25      The referring court states that, while in the present case legal proceedings are pending before the courts of the Member State of origin, the parties to the main proceedings disagree as to the meaning, scope and prospects of success of those proceedings. Thus, while Arik Air maintains that it is exercising a right of challenge, Lufthansa denies Arik Air having such a right and contends that it is seeking solely to delay the enforcement proceedings. The referring court therefore raises the question of the extent of the review of the proceedings taking place in the Member State of origin which it may be required to undertake.

26      Next, the referring court wonders, having regard to the use of the conjunction ‘or’ between the various measures provided for in Article 23 of Regulation No 805/2004 which the competent court or authority in the Member State of enforcement may adopt with a view to staying or limiting enforcement, if it is possible to apply several of those measures simultaneously.

27      Finally, the referring court observes that, under Regulation No 1215/2012, a decision suspending enforceability adopted in the Member State of origin should produce its effects in the Member State of enforcement in accordance with the general obligation to recognise judgments in civil and commercial matters, as defined in Article 36(1) of that regulation. However, it notes that a separate obligation to suspend the enforcement proceedings is also mentioned in Article 44(2) of that regulation. By contrast, it argues that Regulation No 805/2004 does not state whether the suspension of the enforceability of a court decision in the Member State of origin should lead to the automatic suspension of the enforcement of that decision in another Member State or whether a decision of the competent authorities of the Member State of enforcement is required for that purpose. It concludes that it is therefore necessary to ask whether a regime similar to that provided for by Regulation No 1215/2012 should apply in the context of Regulation No 805/2004.

28      In those circumstances, the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      … 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, [how] 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 th[at] term …?

(2)      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 a European Enforcement Order 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?

(3)      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 respective 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 respective measure specified in Article 23 of th[at] regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

(4)      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?

(5)      Is the legal regime laid down in Article 36(1) of Regulation [No 1215/2012] 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?’

 Consideration of the questions referred

 The first to third questions

29      By its first to third questions, which it is appropriate to examine together, the referring court asks, in essence, the Court to interpret the concept of ‘exceptional circumstances’, within the meaning of Article 23(c) of Regulation No 805/2004, and, in particular, whether and to what extent circumstances relating to the court proceedings brought in the Member State of origin against the judgment certified as a European Enforcement Order or against the European Enforcement Order certificate are relevant for the purposes of determining the scope of that concept.

30      Under Article 23(c) of Regulation No 805/2004, where the debtor has challenged a judgment certified as a European Enforcement Order, including an application for review within the meaning of Article 19 of that regulation, or has applied for the rectification or withdrawal of a European Enforcement Order certificate in accordance with Article 10 of that regulation, the competent court or authority of the Member State of enforcement may, upon application by the debtor, under exceptional circumstances, stay the enforcement proceedings.

31      It must be observed that that provision makes no reference to the law of the Member States as regards the meaning and scope to be attributed to the concept of ‘exceptional circumstances’, with the result that, having regard to the requirements both of the uniform application of EU law and of the principle of equality, that concept must be regarded as an autonomous concept of EU law and must be interpreted uniformly throughout the territory of the European Union (see, to that effect, judgment of 27 January 2022, Zinātnes parks, C‑347/20, EU:C:2022:59, paragraph 42 and the case-law cited).

32      The fact that Article 20(1) of Regulation No 805/2004 refers to the law of the Member State of enforcement as regards enforcement proceedings cannot invalidate that finding. As the Advocate General also observes in point 15 of his Opinion, that reference is without prejudice to the provisions of Chapter IV of that regulation and, in particular, of Article 23, which lays down the conditions of a limitation or stay of the enforcement proceedings in the scenario where a challenge or an application has been brought by the debtor in the Member State of origin.

33      Therefore, as is apparent from the Court’s case-law, for the purposes of interpreting the concept of ‘exceptional circumstances’ within the meaning of Article 23(c) of Regulation No 805/2004, it is necessary to take into account not only the wording of that provision but also the context in which it is set and the objectives pursued by the measure of which it forms part (see, to that effect, judgment of 9 October 2019, BGL BNP Paribas, C‑548/18, EU:C:2019:848, paragraph 25 and the case-law cited).

34      As regards, first, the wording of Article 23(c) of Regulation No 805/2004, it is clear from the very terms contained in that provision, in particular from the use of the verb ‘may’ and the adjective ‘exceptional’, that, while leaving to the courts or authorities of the Member State of enforcement a margin of discretion in assessing the need to suspend the enforcement of a judgment certified as a European Enforcement Order, the EU legislature intended to limit that discretion by establishing the existence of circumstances which it has identified as being ‘exceptional’, with the result that that provision must be interpreted strictly (see, by analogy, judgment of 22 October 2015, Thomas Cook Belgium, C‑245/14, EU:C:2015:715, paragraph 31 and the case-law cited).

35      That being said, it must be inferred from the reference by the EU legislature to the concept of ‘exceptional circumstances’ that it did not intend to limit the scope of Article 23(c) of Regulation No 805/2004 solely to situations of force majeure, which, as a general rule, follow from unforeseeable and unavoidable events arising from a cause external to the debtor.

36      In the light of those textual considerations, it must be held that the power to stay the enforcement proceedings in respect of a judgment certified as a European Enforcement Order must be reserved for cases in which continued enforcement would expose the debtor to a real risk of particularly serious harm, the reparation of which would prove impossible or extremely difficult if the challenge or the application brought by the debtor in the Member State of origin were to be successful.

37      Furthermore, it follows from a reading of Article 23(c) of Regulation No 805/2004 that the existence of court proceedings initiated by the debtor in the Member State of origin, either for the purpose of challenging a judgment certified as a European Enforcement Order, or for the purpose of applying for the rectification or withdrawal of a European Enforcement Order certificate, is a prerequisite for the competent court or authority of the Member State of enforcement to examine whether there are exceptional circumstances with a view possibly to suspending the enforcement of that order.

38      Secondly, as regards the context of Article 23(c) of Regulation No 805/2004, it should be noted that, in the scheme of that regulation, the abolition of exequatur, provided for in Article 5, is based on a clear division of jurisdiction between the courts and authorities of the Member State of origin and those of the Member State of enforcement, together with requirements to be observed in the context of the procedure leading to the adoption of a judgment on an uncontested claim as well as when that judgment is enforced. That division of jurisdiction stems from the fact that the claim and the European Enforcement Order establishing it rely on the law of the Member State of origin, while the enforcement procedure is governed by the law of the Member State of enforcement, in accordance with Article 20 of that regulation.

39      Thus, in the Member State of origin, the certification of a judgment on an uncontested claim as a European Enforcement Order is subject to compliance with the minimum standards laid down in Chapter III of Regulation No 805/2004. In that regard, pursuant to Article 18 of that regulation, non-compliance with those standards may be cured only before the courts or authorities of that State.

40      For their part, the competent courts or authorities of the Member State of enforcement, within the framework of the jurisdiction conferred on them by Article 20 of Regulation No 805/2004, are empowered to examine whether there are factors justifying the refusal of enforcement pursuant to Article 21(1) of that regulation or the limitation or stay of enforcement in accordance with Article 23 of that regulation.

41      Nonetheless, no objection to the judgment given in the Member State of origin or to its certification as a European Enforcement Order may be submitted to those courts or authorities for their assessment. As is apparent from Article 21(2) of Regulation No 805/2004, read in the light of recital 18, mutual trust between Member States in the administration of justice in each of them must mean that any court of a Member State may consider that all conditions for certification as a European Enforcement Order are fulfilled, so that under no circumstances may the judgment on an uncontested claim or the certification thereof be reviewed as to their substance in the Member State of enforcement.

42      It thus follows from the scheme of Regulation No 805/2004 that the competent courts or authorities of the Member State of enforcement have no jurisdiction to examine, either directly or indirectly in the context of a request to have the enforcement proceedings stayed, such a judgment given in the Member State of origin or the certification thereof as a European Enforcement Order.

43      Having regard to that division of jurisdiction between the courts and authorities of the Member State of origin and those of the Member State of enforcement under Regulation No 805/2004, the courts or authorities of the Member State of enforcement have a limited discretion as regards the assessment of the circumstances in the light of which a request for a stay of enforcement may be granted. Thus, when examining such a request and in order to establish whether the circumstances invoked in support thereof by the debtor are exceptional, those courts or authorities must limit themselves, after having ascertained the existence of a challenge or of an application in the Member State of origin within the meaning of Article 23 of Regulation No 805/2004, to weighing up the interests involved, namely the creditor’s interest in ensuring the immediate enforcement of the judgment on his or her claim and the debtor’s interest in avoiding harm that is particularly serious and impossible to remedy or difficult to remedy, in order to strike the right balance sought by that article. In the course of that examination, as the Advocate General observes in point 30 of his Opinion, those courts or authorities may not carry out any assessment, even prima facie, of the merits of the challenge or application brought by the debtor in the Member State of origin.

44      Thirdly, the need for a strict interpretation of the concept of ‘exceptional circumstances’ is supported by a teleological interpretation of Article 23(c) of Regulation No 805/2004.

45      As is apparent from Article 1 of that regulation, read in conjunction with recital 8, that regulation seeks to ensure the free circulation, inter alia, of judgments on uncontested claims, to accelerate and simplify their enforcement in a Member State other than that in which the judgment was handed down. In the light of that objective, the conditions that would prevent the immediate enforcement of those judgments, laid down in Articles 21 and 23 of that regulation, must also be interpreted strictly.

46      In the light of the foregoing, the answer to the first to third questions is that Article 23(c) of Regulation No 805/2004 must be interpreted as meaning that the concept of ‘exceptional circumstances’ contained in that provision covers a situation in which continued enforcement proceedings in respect of a judgment certified as a European Enforcement Order, where the debtor has challenged that judgment or has brought an application for the rectification or withdrawal of the European Enforcement Order certificate in the Member State of origin, would expose the debtor to a real risk of particularly serious harm, the reparation of which would prove impossible or extremely difficult if that judgment were to be annulled or the European Enforcement Order certificate were to be rectified or withdrawn. That concept does not refer to circumstances connected with the judicial proceedings brought in the Member State of origin against the judgment certified as a European Enforcement Order or against the European Enforcement Order certificate.

 The fourth question

47      By its fourth question, the referring court asks, in essence, whether Article 23 of Regulation No 805/2004 must be interpreted as permitting the simultaneous application of the measures limiting the enforcement proceedings, requiring the provision of security or staying the enforcement proceedings which are laid down in subparagraphs (a), (b) and (c).

48      In that regard, it should be noted that, under the heading ‘Stay or limitation of enforcement’, Article 23 of Regulation No 805/2004 lists the measures that may be ordered by the competent court or authority of the Member State of enforcement, upon application by the debtor, namely: limiting the enforcement proceedings to protective measures, making enforcement conditional on the provision of security or, under exceptional circumstances, staying enforcement.

49      It is apparent from the wording of that article that the measures laid down therein are linked by the conjunction ‘or’ which may, in certain language versions, have an alternative or cumulative meaning (see, to that effect, judgment of 30 January 2020, Autoservizi Giordano, C‑513/18, EU:C:2020:59, paragraph 24 and the case-law cited). The use of that conjunction is therefore not indicative of the intention of the EU legislature as to the simultaneous application of the measures referred to in Article 23 of Regulation No 805/2004.

50      However, the scheme of that article and the scope of the measures laid down therein support the view that it is not possible to have the simultaneous application of the measure staying the enforcement proceedings which is provided for in Article 23(c) of Regulation No 805/2004, on the one hand, and the measure limiting such proceedings under Article 23(a) or the measure requiring the debtor to provide security under Article 23(b) of that regulation, on the other hand.

51      A stay of the enforcement proceedings, ordered upon application by the debtor in accordance with Article 23(c) of Regulation No 805/2004, precludes, given its immediate effects on the continuation of those proceedings, the possibility of limiting those proceedings to protective measures within the meaning of Article 23(a) of that regulation. The obligation imposed on the creditor to provide security, pursuant to Article 23(b) of that regulation, is provided for in order to be able to enforce the claim at issue immediately, which logically precludes the simultaneous application of the measure staying enforcement.

52      However, as the Advocate General noted, in essence, in point 52 of his Opinion, it is conceivable that the competent court or authority of the Member State of enforcement could require a creditor to provide security as a condition of the implementation of enforcement measures of an exclusively protective nature.

53      In the light of the foregoing considerations, the answer to the fourth question is that Article 23 of Regulation No 805/2004 must be interpreted as permitting the simultaneous application of the measures limiting the enforcement proceedings and requiring the provision of security laid down in subparagraphs (a) and (b), but not the simultaneous application of either one of those two measures and that staying the enforcement proceedings under subparagraph (c).

 The fifth question

54      The fifth question, which concerns the interpretation of Article 36(1) and Article 44(2) of Regulation No 1215/2012, relates to the effects of a judgment given in the Member State of origin, ordering the suspension of the enforceability of a judgment on an uncontested claim certified as a European Enforcement Order, on the procedure for the enforcement of the latter judgment, which was initiated in the Member State of enforcement.

55      As a preliminary point, it should be noted that, while it is not apparent from the request for a preliminary ruling that, on the date on which the matter was referred to the Court of Justice, the competent German court had given a final ruling on the stay of enforcement of the European Enforcement Order of 24 October 2019, proceedings in that respect were pending before that court at that time, with the result that it is not inconceivable that a judgment suspending the enforcement of that order may be given. Therefore, it is not obvious that an answer to the fifth question would not be of use to the referring court in deciding the dispute before it. It follows that that question is admissible.

56      It is also important to note that, even if the referring court formally seeks the interpretation of Article 36(1) and Article 44(2) of Regulation No 1215/2012, Regulation No 805/2004, on the basis of which the enforcement proceedings were initiated in the main proceedings, itself governs, in Article 6(2), the situation in which the enforceability of a judgment certified as a European Enforcement Order has been suspended.

57      Since the Court has jurisdiction to extract from the body of material provided by the referring court, and in particular from the statement of reasons for the order for reference, the elements of EU law which require interpretation in the light of the subject matter of the dispute (see, to that effect, judgment of 22 April 2021, Profi Credit Slovakia, C‑485/19, EU:C:2021:313, paragraph 50 and the case-law cited), the fifth question must be understood as seeking the interpretation of Article 6(2) of Regulation No 805/2004.

58      Consequently, by its fifth question, the referring court asks, in essence, whether Article 6(2) 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, the court of the Member State of enforcement is required, on the basis of that judgment, to stay the enforcement proceedings initiated in the latter State.

59      In that regard, it should be noted that it follows from Article 6(1) of Regulation No 805/2004 that the certification of a judgment on an uncontested claim as a European Enforcement Order is subject to a number of conditions, including that laid down in Article 6(1)(a) of that regulation concerning the enforceability of that judgment in the Member State of origin.

60      In accordance with Article 11 of that regulation, the European Enforcement Order certificate is to take effect only within the limits of the enforceability of that judgment.

61      It follows from those provisions that a European Enforcement Order cannot produce legal effects if the enforceability of the judgment thus certified has been suspended in the Member State of origin.

62      It is in that context that Article 6(2) of Regulation No 805/2004 provides that, where a judgment certified as a European Enforcement Order has ceased to be enforceable or its enforceability has been suspended or limited, a certificate indicating the lack or limitation of enforceability is to be issued, upon application at any time to the court of origin, using the form in Annex IV to that regulation.

63      Consequently, where the enforceability of a judgment certified as a European Enforcement Order has been suspended in the Member State of origin, the competent court or authority of the Member State of enforcement is required to stay the enforcement proceedings initiated in that State where the certificate referred to in Article 6(2) of Regulation No 805/2004 is produced.

64      In the light of the foregoing considerations, the answer to the fifth question is that Article 6(2) of Regulation No 805/2004, read in conjunction with Article 11, 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 referred to in Article 6(2) has been produced before the court of the Member State of enforcement, that court is required to stay, on the basis of that judgment, the enforcement proceedings initiated in the latter State.

 Costs

65      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1.      Article 23(c) 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 concept of ‘exceptional circumstances’ contained in that provision covers a situation in which continued enforcement proceedings in respect of a judgment certified as a European Enforcement Order, where the debtor has challenged that judgment or has brought an application for the rectification or withdrawal of the European Enforcement Order certificate in the Member State of origin, would expose the debtor to a real risk of particularly serious harm, the reparation of which would prove impossible or extremely difficult if that judgment were to be annulled or the European Enforcement Order certificate were to be rectified or withdrawn. That concept does not refer to circumstances connected with the judicial proceedings brought in the Member State of origin against the judgment certified as a European Enforcement Order or against the European Enforcement Order certificate.

2.      Article 23 of Regulation No 805/2004

must be interpreted as permitting the simultaneous application of the measures limiting the enforcement proceedings and requiring the provision of security laid down in subparagraphs (a) and (b), but not the simultaneous application of either one of those two measures and that staying the enforcement proceedings under subparagraph (c).

3.      Article 6(2) of Regulation No 805/2004, read in conjunction with Article 11,

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 referred to in Article 6(2) has been produced before the court of the Member State of enforcement, that court is required to stay, on the basis of that judgment, the enforcement proceedings initiated in the latter State.

[Signatures]

*      Language of the case: Lithuanian.

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