Case of the Day: Frontera Capital (Case C-722/21)

Today’s case of the day is Frontera Capital, Case C-722/21 in the Court of Justice of the European Union. Article 267 of the TFEU provides a means to obtain preliminary rulings from the CJEU on matters of European law:

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

In Spain, a Luxembourg company called Frontera Capital Sàrl asked a notary to issue European orders for payment addressed to Spanish residents. The notary agreed, but the Directorate General of Registers and Notariat, which regulates Spanish notaries, decided that the notary had violated Spanish law by issuing the orders. The notary’s view was that Regulation No 1896/2006 gave her the power to issue the orders. She sought a preliminary ruling from the CJEU.

Today’s decision is on admissibility, and it turns on whether the notary was a “court or tribunal” authorized to request a preliminary ruling. Regular readers may be able to guess where this is going. In ZF Automotive v. Luxshare, the reach of Section 1782 turned on whether an arbitral tribunal was a “tribunal” as the term was used in the statute. So I thought it would be interesting to compare the CJEU’s decision, which holds the notary’s request for a ruling was not admissible, with the Supreme Court’s decision.

The court noted that it was necessary to consider the functions the notary was exercising, whether judicial or administrative, in order to decide whether a dispute was pending before the notary and whether the notary would be called upon to make a judicial decision. The court held that on the record before it, it wasn’t clear that the notary was exercising a judicial function, and thus. the request was inadmissible. The CJEU’s decision is reminiscent of the Supreme Court’s Intel decision, which also give a functional treatment to the question of whether a tribunal is a “tribunal” as the term is used in the statute.

There is no question that a notary is a public official, and thus if, say, a private arbitrator asked for a preliminary ruling, the CJEU would have to face the question analogous to the question the Supreme Court faced in ZF: is the private arbitrator a tribunal “of a Member State?” If that issue were to arise in the EU, it seems to me that the outcome would be clear from the face of the treaty in a way that ZF was not clear from the text of Section 1782. In ZF, there was a puzzle about whether a “foreign or international” tribunal is necessarily a governmental tribunal. But there can’t be a similar puzzle under the TFEU, which applies to a “court or tribunal of a Member State.

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