The European Court of Justice on articles 23(C), 23 And 6(2) Of Regulation (Ec) No 805/2004

The Court of Justice of the European Union, by judgment ECLI:EU:C:2023:104, dated 16 February 2023, in Case C-393/21 - in proceedings between the airline Arik Air Limited and Lufthansa Technik AERO Alzey GmbH 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 – ruled that:

1. Article 23(c) of Regulation (EC) No 805/2004, 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difficult if that judgment were to be annulled or the European Enforcement Order certificate were to be rectified or withdrawn.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.

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Marco Sposini

Avvocato - Studio Legale Sardo - Milano