Request for a Preliminary Ruling on the Service Regulation (Recast)

The Official Journal of the European Union of 9 June 2023 reports the following request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court – case C-222/23):

Is Article 62(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as precluding the concept of a natural person’s ‘domicile’ from being derived from national legislation which provides that the permanent address of nationals of the forum State is always situated in that State and cannot be transferred to another place in the European Union?

Is Article 5(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as permitting national legislation and national case-law under which a court of a State may not refuse to issue an order for payment against a debtor who is a national of that State and in respect of whom there is a reasonable presumption that the court lacks international jurisdiction because the debtor is likely to be domiciled in another EU State, which is apparent from the debtor’s declaration to the competent authority that he has a registered address in that State? In such a case, is the date on which that declaration was made relevant?

Where the international jurisdiction of the court seised is derived from a provision other than Article 5(1) of [the Brussels I bis Regulation], must Article 18(1) TFEU, read in conjunction with Article 47(2) of the Charter of Fundamental Rights, be interpreted as precluding national legislation and national case-law under which an order for payment may be issued only against a natural person who is habitually resident in the forum State, but a finding that the debtor, if a national of that State, has established that he is resident in another State cannot be based solely on the fact that he has given the first State a registered address (‘current’ address) that is in another State of the European Union, if the debtor is unable to demonstrate that he has entirely moved to that other State and has no address in the territory of the forum State? In this case, is the date on which the declaration concerning the current address was made relevant?

If the answer to the first part of the third question is that the issue of an order for payment is permissible, is it permissible under Article 4(1) of [the Brussels I bis Regulation], read in conjunction with Article 22(1) and (2) of Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, as interpreted in the judgment in Case C-325/11, Alder, and in conjunction with the principle of effective application of EU law in the exercise of national procedural autonomy, for a national court of a State in which nationals cannot give up their registered addresses in the territory of that State and cannot transfer them to another State, when it receives an application for an order for payment in proceedings in which the debtor is not involved, to obtain information in accordance with Article 7 of Regulation (EU) 2020/1784 from the authorities of the State in which the debtor has a registered address about the debtor’s address in that State and the date of registration there, in order to determine the debtor’s actual habitual residence before the final decision is given in the case?

In the case at hand, ‘Toplofikatsia Sofia’ EAD, a company registered under Bulgarian law, applied to the Sofia District Court for an order for payment against V.Z.A., the debtor, for a pecuniary claim. V.Z.A. is not yet a party to the proceedings, because the order has not yet been issued. The claim arose from the fact that V.Z.A., who owns an apartment heated by the district heating network, had not paid for energy supplied between 15 September 2020 and 22 February 2023. In order to determine its international jurisdiction, the Sofia court requested of its own motion information on the address of the debtor from the population register in March 2023. According to this information, V.Z.A. has a permanent address registered in 2000 in Sofia (Bulgaria) and, since 6 March 2010, has had a current address registered with the Bulgarian authorities that is in another Member State of the European Union. Bulgarian law does not provide for the possibility of registering a particular current address abroad but merely for indicating the other State in which it is located.

In a nutshell, the legal issues at stake are two: first, the compatibility with Union Law of the assimilation, as per national law, of the permanent address to the notion of domicile, independently of the existence of a current address in another Member State; second, the possibility of resorting to the provisions of Regulation No. 2020/1784 in order to identify the current address of a debtor.

The request is remarkable in that, to the best of my knowledge, it will be the first one on the new Service Regulation, which applies as of 1 July 2022.

If the fourth question is taken up by the Court of Justice in its exact terms, the ruling will involve Article 7 on assistance on address enquiries, i.e., a provision non-existing under the previous Service Regulation, and the only one applicable where the address of the person to be served with a document is not known (see Article 1, paragraph 2 of the Regulation). As noted by B. Hess in his commentary to Article 7 in A. Anthimos, M. Requejo (eds), The European Service Regulation. A Commentary, Edward Elgar Publishing, 2023, the rule introduces a new mechanism aiming at facilitating address research in other EU Member States, without, nevertheless, establishing a self-standing European procedure, unlike Articles 51 (2), 61 – 63 of the Maintenance Regulation, or (for the purposes of obtaining information on accounts of the debtor) under Article 14 of the European Bank Account Preservation Order Regulation. The assistance given in the framework of Article 7 remains a matter of the national law of the requested EU Member State – some information thereto related can be found at the e-justice portal.

Updates will follow.