Pula Parking (area of freedom, security and justice : Judicial cooperation in civil matters area of freedom, security and justice : Judicial cooperation in civil matters - Judgment) [2017] EUECJ C-551/15 (09 March 2017)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Pula Parking (area of freedom, security and justice : Judicial cooperation in civil matters area of freedom, security and justice : Judicial cooperation in civil matters - Judgment) [2017] EUECJ C-551/15 (09 March 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/C55115.html Cite as: EU:C:2017:193, ECLI:EU:C:2017:193, [2017] EUECJ C-551/15

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Temporal and material scope– Civil and commercial matters — Enforcement proceedings relating to the recovery of an unpaid public parking debt — Included — Concept of ‘court’ — Notary who has issued a writ of execution based on an ‘authentic document’)

REQUEST for a preliminary ruling under Article 267 TFEU from the Općinski sud u Puli-Pola (Municipal Court of Pula, Croatia), made by decision of 20 October 2015, received at the Court on 23 October 2015, in the proceedings

composed of M. Ilešič, President of the Chamber, A. Prechal, A. Rosas, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

having regard to the written procedure and further to the hearing on 14 July 2016,

– Pula Parking d.o.o., by M. Kuzmanović and S.L. Pacheco-Vinković, odvjetnici,

– the European Commission, by C. Cattabriga, S. Ječmenica and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 27 October 2016,

1 This request for a preliminary ruling concerns the interpretation 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 enforcement proceedings between Pula Parking d.o.o. and Mr Sven Klaus Tederahn, regarding an application for recovery of an unpaid public parking debt.

3 The legal basis of Regulation No 1215/2012 is Article 67(4) and Article 81(2)(a)(c) and (e) TFEU.

4 Recitals 3, 4, 10, 26 and 34 of Regulation No 1215/2012 are worded as follows:

‘(3) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters. …

(4) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.

(10) The scope of this Regulation should cover all the main civil and commercial matters apart from certain well-defined matters ...

(26) Mutual trust in the administration of justice in the Union justifies the principle that judgments given in a Member State should be recognised in all Member States without the need for any special procedure. In addition, the aim of making cross-border litigation less time-consuming and costly justifies the abolition of the declaration of enforceability prior to enforcement in the Member State addressed. As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed.

(34) Continuity between the Convention [of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 77.)], [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)] and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the Convention [of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters] and of the Regulations replacing it.’

5 Chapter I of Regulation No 1215/2012 is headed ‘Scope and definitions’. It includes Article 1(1), which provides:

‘This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’

(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 this Regulation, “court” includes the following authorities to the extent that they have jurisdiction in matters falling within the scope of this Regulation:

(a) in Hungary, in summary proceedings concerning orders to pay (fizetési meghagyásos eljárás), the notary (közjegyző);

(b) in Sweden, in summary proceedings concerning orders to pay (betalningsföreläggande) and assistance (handräckning), the Enforcement Authority (Kronofogdemyndigheten).’

‘1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015.

2. Notwithstanding Article 80, Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation.’

9 Article 31 of the Ovršni zakon (Law on Enforcement, Narodne novine, br. 112/12, 25/13 and 93/14) provides:

‘(1) Under this law, an authentic document means an invoice … an extract from accounting records, a legalised private document or any document considered to be an official document under specific rules. The calculation of interest is also regarded as an invoice.

(2) An authentic document shall be enforceable if it includes reference to the identity of the creditor and of the debtor, as well as the subject matter, nature, scope and due date of the pecuniary obligation.

(3) In addition to the information referred to in paragraph 2 of this article, an invoice sent to a natural person who does not carry on a registered activity must inform the debtor that, in the event of non-performance of the pecuniary obligation that has fallen due, the creditor may apply for enforcement based on an authentic document.

10 According to Article 278 of the Law on Enforcement, notaries decide on applications for enforcement that are based on authentic instruments.

11 In accordance with Article 279(1) and (3) of that law, so far as enforceable instruments are concerned, the notary with an office in the territorial area of the residence or registered office of the defendant in the enforcement proceedings is to have territorial jurisdiction. According to Article 38 of that law, that territorial jurisdiction is exclusive. An application for enforcement made before a notary who does not have territorial jurisdiction will be dismissed by the court.

12 Pursuant to Article 282(3) of that law, a notary before whom an admissible, well-founded opposition to a writ issued by that notary is raised in timely fashion is to transfer the file to the court with jurisdiction and the court must take a decision on the opposition in accordance with Articles 57 and 58 of that law.

13 Article 283(1) of that law provides that the notary is to append, at the applicant’s request, the order for enforcement to an authenticated copy of the writ of execution that the notary has issued if, within eight days of expiry of the deadline for lodging an opposition, no opposition has been lodged.

14 According to Article 58(3) of the Law on Enforcement, the court to which the file of the writ that was the subject of opposition was transferred has jurisdiction to set aside that writ of execution in so far as that writ orders enforcement and to annul the measures taken, the procedure continuing according to the rules applicable to cases of opposition to an order to pay.

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

15 Pula Parking, a company owned by the town of Pula (Croatia), carries out, pursuant to a decision of the mayor of that town, of 16 December 2009, as amended on 11 February 2015, the administration, supervision, maintenance and cleaning of the public parking spaces of that town, the collection of parking fees and other related tasks.

16 On 8 September 2010, Mr Tederahn, who is domiciled in Germany, parked his vehicle in a public parking space of the town of Pula. Pula Parking issued Mr Tederahn with a parking ticket.

17 As provided in the parking contract, which was entered into as a result of the issuing of that ticket, Mr Tederahn was required to pay that ticket within eight days of its date of issue, after which late payment interest accrued.

18 Since Mr Tederahn did not settle the sums due within the period prescribed, Pula Parking lodged, on 27 February 2015, with a notary whose office is in Pula, an application for enforcement on the basis of an ‘authentic document’ pursuant to Article 278 of the Law on Enforcement.

19 The ‘authentic document’ submitted by Pula Parking was a certified extract from its accounting records according to which, in view of the invoice of 8 September 2010, an amount of HRK 100 (Croatian kunas) (approximately EUR 13) became due on 16 September 2010.

20 The notary issued a writ of execution on 25 March 2015, on the basis of that document.

21 Since Mr Tederahn lodged an opposition to that writ on 21 April 2015, the case was referred to the Općinski sud u Puli-Pola (Municipal Court of Pula, Croatia) pursuant to Article 282(3) of the Law on Enforcement.

22 In his opposition, Mr Tederahn put forward a plea alleging that the notary who issued the writ of execution of 25 March 2015 did not have substantive and territorial jurisdiction on the ground that that notary did not have jurisdiction to issue such a writ on the basis of an ‘authentic document’ from 2010, against a German national or a citizen of any other EU Member State.

23 In those circumstances, the Općinski sud u Puli-Pola (Municipal Court of Pula, Croatia) 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 legal nature of the relationship between the parties to the proceedings, is Regulation No 1215/2012 applicable in the present case?

(2) Does Regulation No 1215/2012 relate also to the jurisdiction of notaries in the Republic of Croatia?’

24 Since Mr Tederahn has pleaded that Regulation No 1215/2012 is inapplicable ratione temporis because the contract relating to the use of the parking space was concluded before the Republic of Croatia acceded to the European Union, on 1 July 2013, it must be observed at the outset that the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions (judgment of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraph 33).

25 As regards, specifically, Regulation No 1215/2012, it should be noted that, in accordance with Article 66(1), that regulation is to apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015.

26 In this case, although the main proceedings relate to the recovery of an unpaid parking debt, payable under a contract entered into before the Republic of Croatia acceded to the European Union, the enforcement proceedings were brought on 27 February 2015, after Regulation No 1215/2012 entered into force and the dispute in the main proceedings was brought before the referring court, on 21 April 2015, so that an action such as that in the main proceedings falls within the temporal scope of that regulation.

27 As the Advocate General observed in point 33 of his Opinion, it is moreover common that the enforcement of due claims is subject to the procedural rules valid at the moment the action is initiated, not to the procedural rules in force when the original contract was concluded.

28 The finding in paragraph 26 of this judgment is also supported by the case-law of the Court of Justice under the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, whose continuity, as is apparent from recital 34 of Regulation No 1215/2012, should be ensured as regards the interpretation of Article 66(1) of that regulation, according to which the only necessary and sufficient condition for the scheme of that regulation to be applicable to litigation relating to legal relationships created before its entry into force is that the judicial proceedings should have been instituted subsequently to that date (see, to that effect, judgment of 13 November 1979, Sanicentral, 25/79, EU:C:1979:255, paragraph 6).

29 By its first question, the referring court asks, in essence, whether Article 1(1) of Regulation No 1215/2012 must be interpreted as meaning that enforcement proceedings brought by a local authority against a natural person domiciled in another Member State, for the purposes of recovering an unpaid debt for parking in a public car park, the operation of which has been delegated to that company by that authority, fall within the scope of that regulation.

30 Pula Parking, the Croatian and Swiss Governments and the European Commission agree, in essence, that the legal relationship in the main proceedings is of a civil nature, for the purposes of Article 1(1) of Regulation No 1215/2012.

31 As a preliminary point, in so far as Regulation No 1215/2012 has now replaced Regulation No 44/2001, it should be observed that the Court’s interpretation of the provisions of the latter regulation also applies to Regulation No 1215/2012, whenever the provisions of the two instruments of EU law may be regarded as equivalent (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 26 and the case-law cited).

32 In that regard, as is apparent from Article 1(1) of Regulation No 1215/2012, which repeats the wording of Article 1(1) of Regulation No 44/2001, the scope of Regulation No 1215/2012 concerns ‘civil and commercial matters’.

33 In accordance with the Court’s settled case-law, in order to ensure, as far as possible, that the rights and obligations which derive from that regulation for the Member States and the persons to whom it applies are equal and uniform, the concept of ‘civil and commercial matters’ should not be interpreted as a mere reference to the internal law of one or other of the States concerned. That concept must be regarded as an autonomous concept to be interpreted by reference, first, to the objectives and scheme of that regulation and, second, to the general principles which stem from the corpus of the national legal systems (see, to that effect, judgment of 22 October 2015, Aannemingsbedrijf Aertssen and Aertssen Terrassements, C‑523/14, EU:C:2015:722, paragraph 29 and the case-law cited).

34 In order to determine whether a matter falls within the scope of Regulation No 1215/2012, it is necessary to identify the legal relationship between the parties to the dispute and to examine the basis and the detailed rules governing the bringing of the action (see, to that effect, judgments of 11 April 2013, Sapir and Others, C‑645/11, EU:C:2013:228, paragraph 34, and of 12 September 2013, Sunico and Others, C‑49/12, EU:C:2013:545, paragraph 35).

35 In this case, as the Advocate General also observed in points 49 to 51 of his Opinion, the administration of public parking and the collection of parking fees constitute a task carried out in the local interest, effected by Pula Parking, an undertaking owned by the town of Pula. However, although the powers of Pula Parking have been entrusted to it by an act of public authority, neither the determination of the unpaid parking debt, of a contractual nature, nor the action for recovery of that debt, the purpose of which is to safeguard private interests and which is governed by general provisions of law applicable to relations between private individuals, appears to require the town of Pula or Pula Parking to exercise public authority powers.

36 In that regard, it appears from the documents before the Court — which it is, however, for the referring court to verify — that the parking debt claimed by Pula Parking is not coupled with any penalties that may be considered to result from a public authority act of Pula Parking and is not of a punitive nature but constitutes, therefore, mere consideration for a service provided.

37 Moreover, nor does it appear that, by issuing a parking ticket to the persons concerned, Pula Parking grants itself the power to issue an enforcement order, in derogation from the general rules of law, since after it has issued such a ticket, Pula Parking is merely able, in the same way as the issuer of an invoice, to rely on an authentic document capable of enabling it to initiate proceedings in accordance with the provisions of the Law on Enforcement (see, to that effect, judgment of 12 September 2013, Sunico and Others, C‑49/12, EU:C:2013:545, paragraph 39).

38 It follows that the legal relationship between Pula Parking and Mr Tederahn must, in principle, be classified as a private law relationship and falls, therefore, within the concept of ‘civil and commercial matters’ for the purposes of Regulation No 1215/2012.

39 In the light of all the foregoing considerations, the answer to the first question is that Article 1(1) of Regulation No 1215/2012 must be interpreted as meaning that enforcement proceedings brought by a company owned by a local authority against a natural person domiciled in another Member State, for the purposes of recovering an unpaid debt for parking in a public car park the operation of which has been delegated to that company by that authority, which are not in any way punitive but merely constitute consideration for a service provided, fall within the scope of that regulation.

40 By its second question, the referring court asks, in essence, whether Regulation No 1215/2012 must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, fall within the concept of ‘court’ within the meaning of that regulation.

41 Pula Parking and the Croatian Government submit that, for the purposes of Regulation No 1215/2012, it is necessary to give the term ‘court’ a wide definition, covering not only courts, in the strict sense, which exercise judicial functions, but also notaries. The European Commission and the other interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union which have lodged submissions, with the exception of the Swiss Government which does not express a view on this matter, consider that, without prejudice to an amendment to that regulation, notaries in Croatia cannot be placed on the same footing as a court, for the purposes of that regulation, in respect of enforcement proceedings based on an ‘authentic document’.

42 As is clear from the settled case-law of the Court, in the absence of reference to the law of the Member States, the provisions of Regulation No 1215/2012 must be interpreted autonomously, taking into account the overall scheme, the objectives and the origin of that instrument of EU law (see, to that effect, judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 29 and the case-law cited).

43 As regards the general scheme of Regulation No 1215/2012, it should be observed that, on several occasions, that regulation refers to the concepts of ‘court’, ‘jurisdiction’ or ‘legal proceedings’ without, however, defining them.

44 Thus, the title of Regulation No 1215/2012 refers to ‘jurisdiction’ and Article 66 thereof, which deals with the temporal application of that regulation, specifies, in paragraph 1 of that article, that that regulation is to apply only to ‘legal proceedings’ instituted on or after 10 January 2015.

45 In its chapter I, entitled ‘Scope and definitions’, Article 1(1) of that regulation provides that that regulation is to apply in civil and commercial matters whatever the nature of the court or tribunal. Article 2 of that regulation defines the concept of ‘judgment’ as any judgment given by a court or tribunal of a Member State, whatever the judgment may be called.

46 Article 3 of that regulation states authorities which, to the extent that they have jurisdiction in matters falling within the scope of that regulation, are considered to be courts, namely, in Hungary, in summary proceedings concerning orders to pay, notaries and, in Sweden, in summary proceedings concerning those orders and assistance, the Enforcement Authorities. Since that article relates specifically to the authorities that it lists, notaries in Croatia do not fall within that article. It is, in that regard, not relevant that Regulation No 1215/2012 was adopted on 12 December 2012, before the Republic of Croatia acceded to the European Union, and that the technical adaptations to the EU acquis referred solely to the legal acts of the EU adopted and published in the Official Journal of the European Union before 1 July 2012.

47 Moreover, in its settled case-law concerning notaries’ functions, the Court has consistently held that there are fundamental differences between judicial and notarial functions (see, to that effect, judgments of 24 May 2011, Commission v Austria, C‑53/08, EU:C:2011:338, paragraph 103; of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 47, and of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraph 111).

48 It should also be noted that, unlike, for example, Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107), whose Article 3(2) specifies that the term ‘court’, for the purposes of that regulation, encompasses not only the judicial authorities, but also any authority competent in that area which exercises judicial functions and which satisfies certain conditions listed in that provision, Regulation No 1215/2012 does not include any general provision having such an effect.

49 It is therefore necessary, as was observed in paragraph 42 of this judgment, to assess, in the context of this case, the concept of ‘court’ in the light of the objectives pursued by Regulation No 1215/2012, the interpretation of which is sought by the referring court.

50 In that regard, it should be recalled that, according to recital 4 of that regulation, it is essential to unify the rules of conflict of jurisdiction in civil and commercial matters, in order to ensure rapid and simple recognition and enforcement of judgments given in a Member State. As is noted in recital 26 of that regulation, that principle of mutual recognition is, above all, justified by mutual trust in the administration of justice in the Union.

51 According to the case-law of the Court of Justice, both the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 78 and the case-law cited).

52 In the scheme of Regulation No 1215/2012, those principles result in the handling and enforcement of judicial decisions of the courts of a Member State as if they had been delivered in the Member State in which enforcement is sought.

53 Regulation No 1215/2012, the legal basis of which is Article 67(4) TFEU aimed at facilitating access to justice, in particular through the principle of mutual recognition of judicial decisions, thus seeks, in the field of cooperation in civil or commercial matters, to strengthen the simplified and efficient system for rules of conflict, recognition and enforcement of judicial decisions, a system established by the legal instruments of which that regulation forms a continuation, in order to facilitate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union to become an area of freedom, security and justice, founded on the high level of confidence which should exist between the Member States (see, by analogy, in the field of cooperation in civil or commercial matters, the judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 32).

54 Consequently, given the objectives pursued by Regulation No 1215/2012, the concept of ‘court’ for the purposes of that regulation must be interpreted as taking account of the need to enable the national courts of the Member States to identify judgments delivered by other Member States’ courts and to proceed, with the expeditiousness required by that regulation, in enforcing those judgments. Compliance with the principle of mutual trust in the administration of justice in the Member States of the European Union which underlies that regulation requires, in particular, that judgments the enforcement of which is sought in another Member State have been delivered in court proceedings offering guarantees of independence and impartiality and in compliance with the principle of audi alteram partem.

55 That conclusion is supported by the origin of Regulation No 1215/2012. In that regard, the proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM(2010) 748 final), concerning the recast of Regulation No 44/2001, provided for the insertion, in Chapter I of Regulation No 1215/2012, entitled ‘Scope and definitions’, for a definition of the concept of ‘court’ in such a way as to include ‘any authorities designated by a Member State as having jurisdiction in the matters falling within the scope of [the] Regulation’. However, the EU legislature did not follow that approach.

56 In this case, as the Croatian Government submitted at the hearing, in Croatia, notaries form part of the public notarial system, which is separate from the judicial system. Pursuant to the provisions of the Law on Enforcement, in Croatia, notaries have the power to give decisions by writ on applications for enforcement based on authentic documents. Once the writ has been served on the defendant, the latter may lodge an opposition. A notary before whom an admissible, well-founded opposition to a writ issued by that notary is raised in timely fashion is to transfer the file to the court with jurisdiction and the court must take a decision on the opposition.

57 It follows from those provisions that the writ of execution based on an ‘authentic document’, issued by the notary, is served on the debtor only after the writ has been adopted, without the application by which the matter is raised with the notary having been communicated to the debtor.

58 Although it is true that debtors have the opportunity to lodge oppositions against writs of execution issued by notaries and it appears that notaries exercise the responsibilities conferred on them in the context of enforcement proceedings based on an ‘authentic document’ subject to review by the courts, to which notaries must refer possible challenges, the fact remains that the examination, by notaries, in Croatia, of an application for a writ of execution on such a basis is not conducted on an inter partes basis.

59 In the light of all the foregoing considerations, the answer to the second question is that Regulation No 1215/2012 must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, do not fall within the concept of ‘court’ within the meaning of that regulation.

60 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

1. Article 1(1) 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 must be interpreted as meaning that enforcement proceedings brought by a company owned by a local authority against a natural person domiciled in another Member State, for the purposes of recovering an unpaid debt for parking in a public car park, the operation of which has been delegated to that company by that authority, which are not in any way punitive but merely constitute consideration for a service provided, fall within the scope of that regulation.

2. Regulation No 1215/2012 must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, do not fall within the concept of ‘court’ within the meaning of that regulation.

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