ATHANASIOS RANTOS

ATHANASIOS RANTOS

delivered on 9 September 2021 (1)

delivered on 9 September 2021 (1)

Case C‑581/20

Case C‑581/20

TOTO SpA – Costruzioni Generali,

TOTO SpA – Costruzioni Generali,

(Request for a preliminary ruling from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria))

(Request for a preliminary ruling from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and recognition of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Concept of civil and commercial matters – Provisional, including protective, measures – Contract for the performance of public road building works)

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and recognition of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Concept of civil and commercial matters – Provisional, including protective, measures – Contract for the performance of public road building works)

In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.

In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.

Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.

Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.

The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). That appeal requires a determination, inter alia other matters, of whether, in the light of Article 35 of Regulation (EU) No 1215/2012, (2) the Bulgarian courts have international jurisdiction to adopt the provisional, including protective, measures sought. (3)

The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). That appeal requires a determination, inter alia other matters, of whether, in the light of Article 35 of Regulation (EU) No 1215/2012, (2) the Bulgarian courts have international jurisdiction to adopt the provisional, including protective, measures sought. (3)

Unless I am mistaken, the Court of Justice has so far given one ruling on that article. (4) However, judgments given in the light of previous instruments (5) shed light on the referring court’s questions, without resolving them.

Unless I am mistaken, the Court of Justice has so far given one ruling on that article. (4) However, judgments given in the light of previous instruments (5) shed light on the referring court’s questions, without resolving them.

In accordance with the instructions given by the Court, this Opinion will address only the second question referred for a preliminary ruling. The answer will require a detailed examination of the relationship between two courts of different Member States – the court seised of the proceedings as regards the substance and the court seised solely in relation to provisional, including protective, relief – in cross-border situations, in respect of which Article 35 seeks ‘to avoid causing loss to the parties as a result of the long delays inherent in any international proceedings.’ (6)

In accordance with the instructions given by the Court, this Opinion will address only the second question referred for a preliminary ruling. The answer will require a detailed examination of the relationship between two courts of different Member States – the court seised of the proceedings as regards the substance and the court seised solely in relation to provisional, including protective, relief – in cross-border situations, in respect of which Article 35 seeks ‘to avoid causing loss to the parties as a result of the long delays inherent in any international proceedings.’ (6)

Recital 33 states:

Recital 33 states:

‘Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, their free circulation should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State.’

‘Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, their free circulation should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State.’

In accordance with Article 2:

In accordance with Article 2:

‘For the purposes of this Regulation:

‘For the purposes of this Regulation:

(a) “judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.

(a) “judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.

For the purposes of Chapter III, “judgment” includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement;

For the purposes of Chapter III, “judgment” includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement;

…’

…’

Article 29, in the section headed ‘Lis pendens – related actions’, reads:

Article 29, in the section headed ‘Lis pendens – related actions’, reads:

‘1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

‘1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

In accordance with Article 35 (‘Provisional, including protective, measures’):

In accordance with Article 35 (‘Provisional, including protective, measures’):

‘Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.’

‘Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.’

Pursuant to Article 36, in the section headed ‘Recognition’:

Pursuant to Article 36, in the section headed ‘Recognition’:

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

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

…’

…’

Article 42(2) stipulates:

Article 42(2) stipulates:

‘For the purposes of enforcement in a Member State of a judgment given in another Member State ordering a provisional, including a protective, measure, the applicant shall provide the competent enforcement authority with:

‘For the purposes of enforcement in a Member State of a judgment given in another Member State ordering a provisional, including a protective, measure, the applicant shall provide the competent enforcement authority with:

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;

(b) the certificate issued pursuant to Article 53, containing a description of the measure and certifying that:

(b) the certificate issued pursuant to Article 53, containing a description of the measure and certifying that:

(i) the court has jurisdiction as to the substance of the matter;

(i) the court has jurisdiction as to the substance of the matter;

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

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

(c) where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.’

(c) where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.’

Article 45(1)(c) provides:

Article 45(1)(c) provides:

‘1. On the application of any interested party, the recognition of a judgment shall be refused:

‘1. On the application of any interested party, the recognition of a judgment shall be refused:

(c) if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed.’

(c) if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed.’

Of relevance to this case are Article 18 (immunity of States); Articles 389 to 396 (adoption of provisional measures); Articles 397 to 403 (protective measures); and Articles 274 to 280 (appeals against orders).

Of relevance to this case are Article 18 (immunity of States); Articles 389 to 396 (adoption of provisional measures); Articles 397 to 403 (protective measures); and Articles 274 to 280 (appeals against orders).

Given that my Opinion will focus solely on the interpretation of Article 35 of Regulation No 1215/12, it is not necessary to transcribe those articles.

Given that my Opinion will focus solely on the interpretation of Article 35 of Regulation No 1215/12, it is not necessary to transcribe those articles.

II. Facts, disputes and questions referred for a preliminary ruling

II. Facts, disputes and questions referred for a preliminary ruling

By a contract dated 30 July 2015, the Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad (‘Polish Public Treasury’) commissioned the undertakings TOTO SpA – Costruzioni Generali and Vianini Lavori SpA, acting as a consortium registered in Italy, to construct the S-5 Poznan-Wrocław expressway, section Poznan A2, Gluchovo-Wronczyn.

By a contract dated 30 July 2015, the Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad (‘Polish Public Treasury’) commissioned the undertakings TOTO SpA – Costruzioni Generali and Vianini Lavori SpA, acting as a consortium registered in Italy, to construct the S-5 Poznan-Wrocław expressway, section Poznan A2, Gluchovo-Wronczyn.

The parties included in the contract a clause – clause 20.6 – allocating jurisdiction to settle disputes between them to the courts for the place where the contracting authority is domiciled (the Polish courts). (8)

The parties included in the contract a clause – clause 20.6 – allocating jurisdiction to settle disputes between them to the courts for the place where the contracting authority is domiciled (the Polish courts). (8)

In that contract, guarantee Nos 02900100000348 and 02900100000818 were provided to secure, respectively, performance of the contract (9) and the possible payment of a ‘contractual penalty’ following completion of the works. (10) Both guarantees were provided by the Bulgarian insurance company Euroins AD and are governed by Polish substantive law.

In that contract, guarantee Nos 02900100000348 and 02900100000818 were provided to secure, respectively, performance of the contract (9) and the possible payment of a ‘contractual penalty’ following completion of the works. (10) Both guarantees were provided by the Bulgarian insurance company Euroins AD and are governed by Polish substantive law.

Both contractor companies brought actions for a negative declaration against the Polish State Treasury before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland). They sought ‘a declaration that the State Treasury … was not entitled to demand payment of the contractual penalty agreed, since the conditions for such payment are not met, and nor was the defendant entitled to a contractual penalty for the late performance of the contract as alleged by it.’ (11)

Both contractor companies brought actions for a negative declaration against the Polish State Treasury before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland). They sought ‘a declaration that the State Treasury … was not entitled to demand payment of the contractual penalty agreed, since the conditions for such payment are not met, and nor was the defendant entitled to a contractual penalty for the late performance of the contract as alleged by it.’ (11)

In addition, the contractors requested the court ‘to adopt interim measures ordering the defendant to refrain, in particular, from making use of guarantee Nos 02900100000348 and 02900100000818 provided by the insurance company Euroins AD’. (12)

In addition, the contractors requested the court ‘to adopt interim measures ordering the defendant to refrain, in particular, from making use of guarantee Nos 02900100000348 and 02900100000818 provided by the insurance company Euroins AD’. (12)

By order of 7 June 2019, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) refused to adopt the provisional, including protective, measures sought. (13)

By order of 7 June 2019, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) refused to adopt the provisional, including protective, measures sought. (13)

On 31 July 2019, the contractors again applied for the adoption of those measures, this time before the Sofiyski gradski sad (Sofía City Court, Bulgaria), in support of the actions before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw).

On 31 July 2019, the contractors again applied for the adoption of those measures, this time before the Sofiyski gradski sad (Sofía City Court, Bulgaria), in support of the actions before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw).

The application was rejected at first instance but granted on appeal by the Sofiyski apelativen sad (Court of Appeal, Sofía, Bulgaria). That court imposed, subject to the provision of a security, an attachment order against the receivable of the Polish State Treasury, consisting of guarantee Nos 02900100000348 and 02900100000818, provided in its favour by the insurance company Euroins AD.

The application was rejected at first instance but granted on appeal by the Sofiyski apelativen sad (Court of Appeal, Sofía, Bulgaria). That court imposed, subject to the provision of a security, an attachment order against the receivable of the Polish State Treasury, consisting of guarantee Nos 02900100000348 and 02900100000818, provided in its favour by the insurance company Euroins AD.

The Polish State Treasury appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). In that appeal, it also submitted a European order for payment in accordance with Regulation (EC) No 1896/2006, (14) form E. (15)

The Polish State Treasury appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). In that appeal, it also submitted a European order for payment in accordance with Regulation (EC) No 1896/2006, (14) form E. (15)

The contractors, which had opposed the order using form F of Regulation No 1896/2006, submitted that form in the response to the appeal.

The contractors, which had opposed the order using form F of Regulation No 1896/2006, submitted that form in the response to the appeal.