Flux européens

Background to Case C-537/23 Società Italiana Lastre SpA (SIL) v Agora SARL, in which the CJEU held yesterday, is here.

The choice of court clause that is the subject of the proceedings reads

the court of Brescia [(Italy)] will have jurisdiction over any dispute arising from or related to this contract. [SIL] reserves the right to bring proceedings against the purchaser before another competent court in Italy or elsewhere.

When I understood late in 2024 that there had been no hearing and that neither would there be an AG Opinion, I suspected this most likely indicated that nothing earthshattering would be held, rather that the CJEU would give the kind of straightforward replies as I flagged in my post on the referral.

I was wrong! : surprisingly in my view the Court has held asymmetry IS covered by BIa and that it is in principle perfectly kosher.

The case deals with asymmetric aka hybrid aka unilateral choice of court, on which readers will find plenty of posts when entering these search strings on the blog.

Article 25’s lex causae rule (which law determines whether unilateral choice of vcourt is valid) reads in relevant part

‘1.      If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. …. “(emphasis added)

Recital 20 adds

20)      Where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement, including the conflict-of-laws rules of that Member State.’

As I noted in the Handbook and elsewhere, the insertion into the Regulation of the lex fori prorogati rule often does not assist. In particular, where parties expressly make choice of court non-exclusive or where they designate a plurality of specifically identified courts, the lex fori prorogati is not immediately ascertainable. Neither is it in the event of so-called ‘unilateral’ or ‘one-sided’ choice of court. At the very least for these cases which are not solved with the new lex fori prorogati rule, parties are best advised to continue to (or start to) make separate and express choice of law for unilateral and non-exclusive choice of law.

Recital 20, whose status is uncertain anyway on account of it being a mere recital, is in my view extraordinarily unhelpful in conjuring up renvoi to the lex causae mix.

The CJEU first of all and as is standard for BIa, reminds us [30] that the concept of ‘null and void as to its substantive validity’ must be given an autonomous, EU law meaning, “which must be established by reference to the usual meaning of those terms in everyday language, while also taking into account the context in which they are used and the objectives pursued by the legislation of which they form part.”

[31] ‘Substantive’ ordinarily would refer to ‘questions of fact or law which the [national, GAVC] court must decide’ at the merits stage. However [32] here the reference to substantive validity clearly means something else ,namely “that provision indicates which national law applies as regards whether, notwithstanding the fact that all of the conditions of validity laid down in that article are satisfied, such an agreement is null and void on other grounds under that national law.”: in other words ‘that provision is merely a conflict-of-laws rule’.

[33] the Court observes that recital 20 “has wording analogous” to A25. When it cites recital 20 however it quotes incompletely, namely “‘where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement’.”

Leaving out the reference to renvoi is disingenuous imo, and it is not the first time the CJEU completely ignores recital 20’s inclusion of renvoi: see C-519/19 Ryanair v DelayFix where it did exactly the same.

[36] continuing with statements which reveal nothing new to the seasoned conflicts eye, the CJEU recalls that A25 itself only discusses the existence and expression of consent, hence that ‘substantive validity’

“covers the general causes of nullity of a contract, namely, in particular, those which vitiate consent, such as error, deceit, violence or fraud, and incapacity to contract, causes which, unlike the conditions of validity pertaining to the agreement conferring jurisdiction themselves, are not governed by the Brussels Ia Regulation but by the law of the Member State whose courts are designated.

[40] the Court refers to the travaux to point out that A25 was meant to mirror the 2005 Choice of Court Convention on this point: see A5 of that Convention (“The court or courts of a Contracting State designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State.”) and A6(a) (“A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – a) the agreement is null and void under the law of the State of the chosen court;…”

Like professor Cuniberti, I am a bit puzzled by the reference to the 2005 Convention seeing as it only applies to exclusive choice of court.

[39] is then the reminder of BIa’s core DNA: reasonable foreseeability of forum for defendant and ease of identification of forum for the claimant (reference here to C-774/22 FTI Touristik which itself had referred to Inkreal.

Now, [42]

the terms ‘have agreed’, …cannot be interpreted as meaning that it is necessary for such a clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause state the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case being examined by the court…” (reference ia to Hőszig).

Put another way, [44]

the condition that the parties ‘have agreed’ on a court or courts of a contracting State or a Member State includes a requirement of precision in order to be valid.

or [45]

an agreement conferring jurisdiction must, in order to be valid, identify with sufficient precision the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them.

This [46] also assists in the attainment of the objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16 BIa.

[48] the Court recalls asymmetry of choice of court being specifically dealt with viz the weaker party to an insurance contract, a consumer contract or an employment contract.

[50]

“as regards those contracts, Article 25(4) of the Brussels Ia Regulation, read in conjunction with Articles 15, 19 and 23 thereof, expressly governs the situations in which an asymmetric agreement conferring jurisdiction is valid and those in which it is not.”

[51]

“Therefore, it must be held that the validity of an agreement conferring jurisdiction in view of its alleged asymmetry must be examined having regard not to criteria relating to the causes of an agreement being ‘null and void as to its substantive validity’, within the meaning of the first sentence of Article 25(1) of the Brussels Ia Regulation, but to autonomous criteria which are derived from that Article 25 as interpreted by the Court.”

I do not understand the leap (“therefore”): the Court seems to reason that seeing as BIa for protected categories imposes conditions curtailing asymmetry, such asymmetry is a BIa-covered condition of validity, not one which A25 refers to an applicable national law. The CJEU in my view could just as well have reasoned with reference to the protected categories being an exception to the rules otherwise applicable, that the asymmetry discussed there is an outlier in what is otherwise an area covered by the lex fori prorogati.

Having thus held that the validity of asymmetric choice of court is to be determined using BIa and not using an applicable law causae, the CJEU then goes on to hold whether BIa does or does not allow them.

[55] Party autonomy, protected by BIa, means the parties must not necessarily designate the courts of a single and the same Member State (or [58] Lugano Convention States). [57] The existence of forum shopping possibilities in the application of the special jurisdictional rules of A7, too, supports the room which BIa leaves for proceedings being brought in various Member States.

[60] The wording of the clause at issue: ‘another competent court …elsewhere’ however leads to the possibility of a third State court, neither an EU or Lugano State court, having jurisdiction. This [61] leads an “an increased risk of conflicts of jurisdiction arising which would be detrimental to legal certainty, since the application of those national rules would be likely to lead to divergent answers..”

The Court’s conclusion therefore is

In the light of the forgoing considerations, the answer to the second question is that Article 25(1) and (4) of the Brussels Ia Regulation must be interpreted as meaning that an agreement conferring jurisdiction pursuant to which one of the parties thereto may only bring proceedings before the sole court that it designates whereas it permits the other party to bring proceedings before, in addition to that court, any other competent court, is valid, in so far as, first, it designates courts of one or several States which are either Members of the European Union or parties to the Lugano II Convention, secondly, it identifies objective factors which are sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, and, thirdly, it is not contrary to the provisions of Articles 15, 19 or 23 of that regulation and does not derogate from an exclusive jurisdiction pursuant to Article 24 thereof.

A surprising outcome as far as I am concerned, and one which as I noted, oddly was taken without the benefit of an AG Opinion.

Geert.

EU Private International Law, 4th ed. 2024, para 2.349.

 

Engagement solennel devant la Cour de justice de l’Union européenne de la Médiatrice européenne

Commission / Hongrie (Reclassification du cannabis)
Droit institutionnel
Selon l’avocate générale Medina, en votant d’une manière incompatible avec la décision du Conseil établissant la position de l’Union européenne sur le reclassement du cannabis et des substances apparentées, la Hongrie a violé le droit de l’Union

Autriche / Commission (Centrale nucléaire Paks II)
Aide d'État
L’avocate générale Medina propose d’annuler l’arrêt du Tribunal qui a confirmé la décision de la Commission approuvant l’aide de la Hongrie pour deux nouveaux réacteurs nucléaires à Paks

Apothekerkammer Nordrhein
Rapprochement des législations
Les États membres peuvent autoriser des actions publicitaires pour l’achat de médicaments indéterminés soumis à prescription médicale qui revêtent la forme de réductions de prix ou de paiements d’un montant exact

Dun & Bradstreet Austria
Principes du droit communautaire
Évaluation de crédit automatisée : la personne concernée a droit à ce qu’on lui explique comment la décision a été prise à son égard

AEON NEPREMIČNINE e.a.
Services d’intermédiation immobilière : le droit de l’Union ne s’oppose pas au plafonnement de la commission de l’agence immobilière à 4 % du prix de vente ou de location

The CJEU confirmed this morning in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB (no language versions other than French and Swedish at the time of posting) that in principle Brussels Ia’s exclusive jurisdictional rule for registered intellectual property rights (A24(4) has no reflexive effect. [I suggest below that the reasoning extends to all of A24).

In doing so it did not follow the Opinions of its AG, which I reviewed here for the first one, and here for the second one. (There were two seeing as the case was reassigned to Grand Chamber).

The case in essence concerns two issues: the extent of the exclusive jurisdiction of the Article 24(4) court in infringement claims (as opposed to direct invalidity actions); and the question whether A24 works reflexively: ie whether the surrender of jurisdiction should also be applied in cases where the A24(4) court is not in an EU Member State – previously addressed in  IRNova f FLIR. In current case the CJEU frequently cites IRNova, confirming as it were that judgment’s matter of factly rejection of reflexivity.

The Court did, justifiably in my view, follow the AG on the issue of a stay between EU Member States courts, when the claim is one for infringement of an intellectual property right (‘IPR’), and the defendant raises a defence of illegality.

Like the AG the CJEU opts for a “narrow reading” of GAT v LUK: a stay of the infringement proceedings until the A24(4) court holds on validity, and then continued jurisdiction for the ‘infringement’ court. The CJEU

cites [43] the need for a restrictive interpretation of the exceptions to A4’s principled actor sequitur forum rei jurisdiction.

[44] and referring to the AG, a different interpretation would make full jurisdiction for the A24(4) court the rule rather than the exception (seeing as an invalidity defence is run of the mill in IPR infringement cases).

[46] particularly in Member States where civil procedure rules allow for the invalidity defence to be pleaded throughout the proceedings, it would lead to uncertainty of jurisdiction throughout the proceedings.

The question of extra-EU reflexive effect of Article 24(4) then. This is

kicked off [55] by a reference to the core objectives of Brussels Ia: lubrication of the internal market, and (later in the legislative history), part of the creation of a European judicial area. This is an internal EU objective ([55]: [BIa] est un régime de compétence interne à l’Union européenne.

[56] IRNova had already held that A24(4) does not apply where the patent at issue was granted by a third state; [57] A24(4) does not grant any jurisdiction, exclusive or not, to third States;

[59] BIa kicks in the moment there is an ‘international element’, whether the competition between courts is between EU Member States courts or third State courts (reference to IRNova which however at this point had itself referred to Owusu: Owusu rules! ) and [61] in principle a Member State court may well have jurisdiction on the basis of A4 BIa, like precisely in Owusu[ [67] the Court remarks that the 1974 Munich Patent Convention does not dislodge this jurisdictional finding when a third country patent is involved;

[62] ff A73 BIa may lead to alternative fora, either by way of a multilateral agreement such as the Lugano Convention, or through bilateral agreement entered into force before the Regulation; neither applies in the case at issue.

[65] finally A33-34 may lead to a stay issued by the Member State court under the conditions laid down in those Articles: again: these conditions have neither been met nor applied in the case at issue.

[70] now specifically refers to Owusu, to then [71] ponder whether the public international law principle of non-interference in other States’ domestic affairs (one assumes the English translation will use  the notion of ‘comity’) alters things. [72] ff while the EU Member State seized of the infringement claim, will also have jurisdiction to hold on the validity of the third country’s patent (and will have to exercise such jurisdiction other than in the bi-or multilateral Convention scenario, or within the confines of A33-34), such finding of (in)validity will only have effect inter partes: an erga omnes (in)validity finding can only be issued by the third State’s courts.

Conclusion [76]:

 Il ressort de l’ensemble des considérations qui précèdent qu’il y a lieu de répondre à la troisième question que l’article 24, point 4, du règlement Bruxelles I bis doit être interprété en ce sens qu’il ne s’applique pas à une juridiction d’un État tiers et, par conséquent, ne confère aucune compétence, exclusive ou non, à une telle juridiction en ce qui concerne l’appréciation de la validité d’un brevet délivré ou validé par cet État. Si une juridiction d’un État membre est saisie, sur le fondement de l’article 4, paragraphe 1, de ce règlement, d’une action en contrefaçon d’un brevet délivré ou validé dans un État tiers dans le cadre de laquelle est soulevée, par voie d’exception, la question de la validité de ce brevet, cette juridiction est compétente, en application de cet article 4, paragraphe 1, pour statuer sur cette exception, sa décision à cet égard n’étant pas de nature à affecter l’existence ou le contenu dudit brevet dans cet État tiers ou à entraîner la modification du registre national de celui-ci.

An important de lega lata finding, supported as I had discussed in my earlier posts, by many arguments. Whether the Commission may want to propose de lege ferenda other solutions, is a different call.

The case in principle applies to A24(4) only. Its reasoning however in my view extends across the A24 board.

Geert.

EU Private International Law, 4th ed. 2024, 2.217 ff.

 

https://x.com/GAVClaw/status/1894317278503543192

 

 

 

 

 

Sąd Rejonowy w Białymstoku
Droit institutionnel
Indépendance des juges : la Cour de justice précise les exigences du droit de l’Union relatives à la fixation de la rémunération des juges nationaux

Alphabet e.a.
Concurrence
Le refus d’une entreprise en position dominante d’assurer l’interopérabilité de sa plateforme avec une application d’une autre entreprise, qui deviendrait ainsi plus attractive, peut être abusif

A quick note on Hugues Falys, FIAN, Greenpeace and Ligue des droits humains v Total Energies SE (domiciled at France), in which submissions are being exchanged and hearings are scheduled for 19 and 26 November 2025. A summary of the claim is reported here. In essence, the Belgian Farmer is seeking damages for harm done to the farming business due to climate change, and an injunction seeking to prohibit Total form further investing in fossil fuel operations.

The case has been lodged with the commercial court at  Doornik /Tournai, one assumes the territorially relevant court on argued locus damni grounds. Of interest is that an appeal will be heard at the Court of Appeal at Bergen /Mons, which has a specialised environmental chamber.

It is the kind of claim in which one can imagine the corporate defendant trying to outgun the claimant on the private international law issues, here: locus damni /locus delicti commissi jurisdiction under Article 7(2) Brussels Ia, and applicable law under lex ecologia – Article 7 Rome II, cq impact of Article 4 Rome II.

Re the jurisdictional issues see likely Total use of an argument which I flagged here: viz an emerging corporate strategy to deflect A7(2) forum damni jurisdiction, the argument that a causal link between the damage and the alleged shortcoming of the defendant needs to be shown in the claim form itself for it to ground jurisdiction.

Geert.

 

On 12 December 2024 the University of Milan hosted a conference on The Enforcement of the ESG Principles in a Transnational Dimension: Jurisdiction and Applicable Law, under the scientific direction of Stefania Bariatti, Luigi Fumagalli, Zeno Crespi Reghizzi, Michele Grassi, Anna Liebman.

I was asked to address jurisdictional issues for environmental law claims, and promised to upload my speaking notes the next day. Err, that turned out to be a bit later for I entirely forgot – and have now remembered. Here are the notes.

Geert.

 

The CJEU held earlier this morning in C‑393/23 Athenian Brewery SA, Heineken NV v Macedonian Thrace Brewery SA (no language versions available at the time of posting than Dutch and French).

My post on Kokott AG’s Opinion is here. The AG all in all supported a ready acceptance of forum connexitatis in competition law cases – in the case at issue a follow-on damages claim, filed in the mother corporation’s domicile, jointly against the daughter against whom a national competition authority had found a competition law infringement.

The Court is somewhat more cautious.

[26] The finding in CDC that A8(1)’s requirement of ‘same situation of law and fact’ is presumed to be met when various corporations have been held by a Decision of the European Commission to have violated competition law and are now pursued in the A4 court of one of them, also applies [27] when a mother and daughter corporation are pursued on the assumption they are part of one and the same economic unity. Once that unity established, it leads to joint and several liability in EU competition law [29].

[30-31] The risk of irreconcilable judgments  increases in the event of bifurcation of claims against the mother corporation and related undertakings when it is not the EC but rather a national competition authority which has found an infringement seeing [32] as the Damages Directive 2014/104 only instructs national authorities to take a finding of infringement by another Member State as prima facie, not binding evidence of such infringement on their own territory.

[39] ff the economic unit theory in competition law can and ought to be extended to follow-on damages claims so as to preserve the effet utile of EU competition law.

[41] ff focusing then on Brussels Ia, the national court’s jurisdictional assessment in the context of A8(1) is not one of intense engagement with the facts let alone the merits of the claim. [43] The claims by the defendant must be given proper attention however the court seized can presume that the information furnished by the claimant as to the alleged tort, is correct.

[45] all in all, the room for manoeuvre for the court seized in the context of an A8(1) claim aimed at joint and several liability, is limited to assessing whether decisive influence by the mother corporation on the related corporation, is excluded. Hence [46] the defendant corporations must be given the opportunity, at the jurisdictional level, to show only that

either the mother corporation neither directly nor indirectly holds all or almost all of the capital of the related undertaking, or

that it did not hold decisive influence despite holding all or almost all of the capital.

In summary therefore while the court seized in a claim for joint and several liability will not be able to hold a mini trial on the alleged tort, it must engage with the corporations’ arguments on capital control and /or decisive influence.  That is not a large window for extensive delay and argumentation yet neither is it the kind of swift A8(1) check which in my view the AG had in mind in her opinion.

Geert.

EU Private International Law, 4th ed. 2024, 2.516.

 

Slagelse Almennyttige Boligselskab Afdeling Schackenborgvænge
Principes du droit communautaire
Avocate générale Ćapeta : la législation danoise en matière de logement public dans les zones en transformation constitue une discrimination directe fondée sur un critère ethnique

Alchaster II
Mandats d’arrêt émis au titre de l’ACC avec le Royaume-Uni : selon l’avocat général Spielmann, les modifications apportées aux règles relatives à la libération conditionnelle ne relèvent pas, en principe, de la notion de « peine plus forte » au sens de la charte des droits fondamentaux de l’Union européenne

Lexitor
Environnement et consommateurs
Contrats de crédit à la consommation : en cas de non-respect de l’obligation d’information, une banque peut être privée de son droit aux intérêts

Engagement solennel de trois membres de la Commission européenne

Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 is an interesting case highlighting the difference between recognition and enforcement, and the circumstances in which one may not need formal recognition of a foreign court’s finding, in order effectively to enforce that finding. 

Can a bankruptcy petition be presented when payment ordered by foreign Court has not been made yet foreign judgment has not been sought to be enforced? The first instance judge had held [Drelle v Servis-Terminal LLC [2024] EWHC 521 (Ch)] that the fact that the Judgment had not been the subject of recognition proceedings in this jurisdiction did not prevent it from being the basis of a bankruptcy petition. 

Newey LJ [40], reversing, confirms that “(p)lainly, a foreign judgment can be determinative on a point even in the absence of recognition or registration.” Referring to Dicey Rule 45, the Court of Appeal recalls that as a general principle a foreign judgment “has no direct operation in England” and [39] “[a] judgment creditor seeking to enforce a foreign judgment in England at common law cannot do so by direct execution of the judgment” but “must bring an action on the foreign judgment”. Lord Justice Newey then uses a sword and shield analogy: [41]

The principle that a foreign judgment “has no direct operation in England” reflects the common law’s aversion to enforcing a foreign exercise of sovereign power. As Professor Briggs has explained, “if a foreign adjudication and judgment is understood as being an act of state sovereignty, … it is regarded as completely effective within the territory of the sovereign, and as completely unenforceable outside it”: see paragraph 21 above. That logic suggests that any use of an unrecognised and unregistered judgment as a “sword”, including presentation of a bankruptcy petition founded on it, is objectionable.

The ‘revenue rule’ (famously and extensively entertained in SKAT) [42]

has a similar root. Professor Briggs referred to it as “a particular manifestation of a more fundamental rule, that an assertion or exercise of the sovereign right of a foreign state will not be enforced by an English court”: see paragraph 21 above. In Solo Partners, Lord Lloyd-Jones thought that the “revenue rule” was to be explained on the basis that “enforcement of a claim for taxes is but an extension of the sovereign power which imposed the taxes, and … an assertion of sovereign authority by one state within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties”: see paragraph 20 above.

Further authorities re discussed however Newey LJ’s mind is firm on the ‘shield and sword’ issue: [55] an unrecognised foreign judgment, which …involves an exercise of sovereign power [similar to a foreign tax not giving rise to a debt that can be the foundation of a bankruptcy petition] cannot form the basis of such petition. Of note! Geert. https://x.com/GAVClaw/status/1886740770033438751

Russmedia Digital et Inform Media Press
Liberté d'établissement
Commerce électronique et RGPD : l’avocat général Szpunar clarifie les responsabilités de l’exploitant d’une place de marché en ligne

A short note (on the day the UKSC appeal in MSC Flaminia is being heard) on the CJEU judgment in C‑188/23 Land Niedersachsen v Conti  11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’.

The Court essentially followed the Opinion of Capeta AG which I discussed here. The operative part reads

Article 1(3)(b) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste

must be interpreted as meaning that the exclusion from the scope of that regulation that that provision provides for, pertaining to the waste generated on board a ship following damage sustained by that ship on the high seas until that waste is offloaded in order to be recovered or disposed of, no longer applies to the waste which remains on board that ship in order for it to be shipped, together with that ship, for recovery or disposal, after part of that waste has been offloaded in a safe port in order to be recovered or disposed of, that interpretation being in conformity with Article 1(4) of the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed in Basel on 22 March 1989, approved on behalf of the European Economic Community by Council Decision 93/98/EEC of 1 February 1993.

The CJEU applies the VCLT’s interpretative matrix holding it leads to the Basel Convention having to be applied teleologically, and it also reminds us [58] of the ling-standing CJEU authority that “in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the legislation of which it forms part”. It then essentially repeats the AG’s lines of analysis that while exemption from notification etc may be justified in the light of the immediate aftermath of an incident at sea, but is no longer justified once the ship had docked and the captain etc can properly assess the various implications of what has happened.

All in all a sensible judgment.

Geert.

Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.