Flux européens

Commission / Pologne (Contrôle ultra vires de la jurisprudence de la Cour de justice par une cour constitutionnelle)
État de droit : l’avocat général Spielmann considère que le recours de la Commission européenne concernant la Cour constitutionnelle polonaise est fondé

I could not quite think of a catchier title conveying both the plus (claim will continue to be heard in England) and the minus (the discussion having already caused considerable delay), without resorting too obviously to football metaphors.

The claim is brought in England by a number of Liverpool fans physically and psychologically damaged by the poor security at the May 2022 Champions League Final at Paris’ Stade de France. Claimants allege that UEFA had organisational responsibilities for the match and that they owed, and were in breach of, contractual and/or tortious duties concerning the safety of the
claimants.

The case illustrates a problem highlighted by Oliver Holland (partner with Leigh Day, the law firm representing claimants however not, as far as I am aware, involved in the claim), last week at a hearing at the UK Parliament’s human rights committee. (Mr Holland did not give current claim as an example and seeing as the hearing focused on forced labour in the supply chain, he likely did not have the claim in mind at his testimony).

Defendants in personal injury claims (whether or not linked to business and human rights) have quite the series of avenues available to them to try and derail the claims in the English courts. These include (Mr Holland discusses some of these)

objections to jurisdiction, including the infamous doctrine of forum non conveniens;

the prospect of (handy for its freezing effect) very considerable adverse costs orders whether or not coupled with security for costs; and (with impact on the costs issue)

a tendency to entertain issues of both jurisdiction and applicable law at considerable length.

Other jurisdictions of course suffer from similar challenges and I for one am not going to complain about a good conflict of laws yarn. Moreover, Lord Briggs denouncing mini-trials at the jurisdictional stage in Vedanta (Turner J in current case refers to this [15]), and the Court of Appeal’s instructions on forum non in Dyson, ought to bring more discipline to at least some of this maneuvering.

Sean Abram and others v UEFA and UEFA Events SA [2025] EWHC 483 (KB) engages with another means to try and bounce the case away from England and Wales: namely the doctrine of foreign act of state.  For an excellent primer and discussion of the future of the principle see Mary Newbury here.

[5] The principal basis for UEFA’s jurisdiction challenge is that the claims would require the English Court to adjudicate on the lawfulness or validity of acts of a foreign state (France) performed within its own territory, which, UEFA argue, would be impermissible under said “Foreign Act of State Doctrine”.

I have posted quite a few times on the doctrine: see among others

Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886 which [13] defined the doctrine as courts “will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state” and which entertained a number of exceptions to the doctrine, as well as in my opinion leaving a potential incompatibility of (some of the implications of) the doctrine with Article 6 ECHR underdiscussed;

SKAT [Skatteforvaltningen v Solo Capital Partners Llp [2022] EWCA Civ 234] in which both the Court of Appeal and later the Supreme Court focused on the substance rather than the context of the claim (in my post I flag the echos of the Brussels /Lugano ‘civil and commercial’ discussions);

Reliance v India  [2018] EWHC 822 (Comm) where Popplewell J (as he then was) held on whether the doctrine applies to arbitration tribunals;

Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 which flags the need to seek formal recognition of a foreign judgment before its enforcement with Newey LJ suggesting the similar roots of this requirement as the foreign act of state doctrine.

There is certainly merit in holding on jurisdictional issues separately, before extensive engagement with the merits, at least where these objections are not obviously spurious and cannot be summarily addressed. Even in those States where civil procedure rules (CPR) give defendants a procedural right to hear the jurisdictional objections first (the E&W means is Part 11 of the CPR), and despite Turner J’s appreciation that the matter must be dealt with concisely (and note [17] his rejection of defendants’ request to delay even further and squeeze this jurisdictional objection even more), I think continental rules would not have allowed the discussion in current case to take on the extensive nature that it has, with all the costs and time delay this has already caused. And there is potential for an appeal I imagine.

The foreign act of state element of the discussion at issue, if of any relevance at all, clearly in my view is entirely incidental or ‘contextual’ and not substantial, per UKSC SCAT above and therefore simply cannot lead to rejection at the jurisdictional stage. The summary [65] in my view is poignant:

claimants make no direct allegations of unlawfulness in their Particulars of Claim in respect of the conduct of the French police or any other state entity. The defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue
in the proceedings if the case were to be permitted to proceed further.

There is no suggestion that the way in which the claim has been formulated is designed as it were to circumvent the Foreign Act of State doctrine and that the real object of the proceedings as it were is to hold on the validity of actions by a French state entity. The pleaded case as is clear from Abram v UEFA [2024] EWHC 1518 and as summarised here [64] focuses genuinely on UEFA and consorts’ (in)actions.

Defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue in the proceedings if the case were to be permitted to proceed further, ([126] ff they point to issues of French law to support this argument) and (ia [77]) argue that there cannot be a ‘threshold requirement’ below which the assessment of a foreign act of state becomes de minimis and does not engage the doctrine.

The judge, after having made a thorough and clear overview of both the principle (including [82] ff the absence of established authority on what amounts to an act of state) and its exceptions (much more entertained in case-law) as applied by the authorities,

[91] notes that the principle must not extend beyond the natural bounds required to fulfil the aims which it is intended to achieve (international comity, GAVC);

[106] accepts that “some aspects of the conduct of the French government and the other listed public bodies through its higher officials may (and I stress may) amount to acts of state”; however that “the task of determining which, if any, of these acts do engage the Doctrine cannot be confidently carried out on the present incomplete state of the pleadings and evidence”.

[108] ff Two relevant exceptions to the rule are further discussed obiter. The second exception is discussed [122] ff: where challenges to foreign acts
of state are merely ancillary to the claim or by way of collateral aspersion. I know this exception has been so determined by the authorities yet in my opinion would be better formulated not as an exception but as a substantive limitation to the rule.

As a side-note, there appears to be some confusion on the law that will apply to the merits of the case: see [18] ff

18. Until very shortly before the hearing of the application before me,
the claimants had been proceeding under the assumption that
French law applied to the claims of all the claimants. Experts in
French law were duly instructed to report on behalf of the
claimants and defendants respectively.
19. However, it transpires that the position may have been less clear
cut because only some of the claimants had purchased tickets
from the UEFA online ticket portal. Others had bought them
directly from Liverpool FC. Owing to the lateness of the
realisation of the true position, the claimants’ skeleton arguments
deployed for the purposes of the hearing before me had been
drafted on the premise that all of the claims were governed by
French law.
20. The position of the claimants, as now articulated in a letter dated
2 October 2024, is that their claims in tort are subject to French
law regardless of their provenance and so too is any contractual
claim in respect of those tickets purchased from the UEFA online
ticket portal. However, contractual claims brought by claimants
who received their tickets from Liverpool FC involve the
imposition of an English contractual duty to take reasonable skill
and care to be considered in regard to French health and safety
laws and regulations as applicable to the stadium. No purpose
would here be served by articulating their reasons for reaching
this view.

No doubt the cross-over between contractual claims (subject to assimilated Rome I) and non-contractual claims (Rome II, ditto assimilated) and, I imagine, the application of the consumer section of Rome I, will be made clearer in the continuation of the claims.

Geert.

 

I am much pleased that Dr Brooke Marshall has accepted to write on CJEU Lastre for the blog. Dr Marshall has written the guiding volume on the issue (highlights of the book’s launch are here). True to form, her analysis below is as complete as it is on point, and a most excellent addition to the analysis already out there.

Geert.

 

CJEU on substantive validity and on asymmetric clauses: what we now know, and what we (still) don’t.

The background to Case C-537/23 Società Italiana Lastre ECLI:EU:C:2025:120, and commentary on it, has already been expertly provided by François Mailhé, Gilles Cuniberti, and Geert van Calster. It is a privilege for me to contribute to that discussion on this excellent blog.

My post confines itself to the questions that the French Cour de cassation asked and the answers which the CJEU gave (and did not give). My analysis draws heavily from my book on the subject, so pinpoint references to that are given in each section below.

The asymmetric jurisdiction clause in issue said:

‘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’.

The preliminary questions of the Cour de cassation, in essence, were:

(1) Is a complaint about a clause’s asymmetric character or imprecision an autonomous (EU law) question or a question of the clause’s substantive validity? Or should substantive validity be interpreted restrictively ‘and regarded as relating purely to the material grounds for invalidity, which are principally fraud, error, deceit, violence and incapacity’?

(2) If it is an autonomous question, is a clause like the one in issue compatible with Art 25 of the Recast?

(3) If asymmetry goes to substantive validity, how does the conflict-of-laws rule in Art 25 of the Recast work? Which court’s law applies and does that law include renvoi?

These were all good questions, each deserving an answer. Regrettably, the Court only answered the first two.

The Court’s decisions on the first question:

I. The phrase ‘null and void as to its substantive validity’ must be interpreted autonomously

The Court begins at [30] by resolving several uncertainties attending the process of characterisation and the substantive validity rule, which are relevant to jurisdiction clauses generally. The first is as to which law applies to the interpretation of the phrase ‘null and void as to its substantive validity’ in Art 25(1). It had hitherto been uncertain whether the meaning of that phrase and the scope of the issues it covers was a question to be resolved by the law of the court seised, by reference to an autonomous interpretation or by reference to the law applicable to substantive validity of the clause itself, as designated by the conflict-of-laws rule in Art 25(1).

Sensibly, and unsurprisingly in my and Gilles Cuniberti’s view, the Court decides that this question is to be resolved by an autonomous interpretation. This ensures that issues of substantive validity, governed by national law, do not overlap with other aspects of Art 25(1) which are governed by an autonomous approach. Several of those other aspects are pointed out by the Court at [35], namely: that ‘the parties … 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’, which the Court describes as requirements as regards a jurisdiction agreement’s ‘substance’; and that the agreement complies with conditions as to form. In this respect, the Court’s decision coheres with its decision in C- 519/ 19 Ryanair DAC, paras 41, 48– 61. There, the Court observed that it is for the court seised to ascertain first whether a jurisdiction agreement satisfies the requirements of form and consensus under the Recast before turning to the separate issue of substantive validity. So far, so good.

Asymmetric Jurisdiction Clauses (OUP 2023), para 6.35.

 

II. Few issues can be characterized as issues of substantive validity (and asymmetry is not one of them)

At [36] and [37], the Court resolves a second uncertainty of general application, namely as to which kinds of issues can be characterized as issues of substantive validity, adopting a restrictive approach. It rules that ‘that concept 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’ and that it must be interpreted as ‘referring solely to [a jurisdiction agreement’s] nullity in respect of general causes of nullity of a contract’ (my emphasis). In other words, the issues that we knew were already covered by the substantive validity rule are covered but nothing else.

That nothing else is covered is a surprising result, given that there had been some sign that the CJEU might favour a broad interpretation in C- 519/ 19 Ryanair DAC, para 50. One of the reasons the Court gives for its approach is to reflect the solution taken in the 2005 Hague COCA Convention (at [40]). It does not say anything more, but the Court seems to be insinuating that since there is some support for the view that the null and void rule under Art 5(1) of the COCA Convention should be interpreted restrictively (see the COCA Convention’s Explanatory Report, para 126), so too should the substantive validity rule under the Recast. I, therefore, share Gilles Cuniberti’s view that the Court may seek to align its interpretation of the null and void rule in the COCA Convention and the substantive validity rule in the Recast.

Asymmetric Jurisdiction Clauses (OUP 2023), para 6.37, cf paras 6.38-6.48, 6.52–6.55

 

III. A complaint about asymmetry in a jurisdiction clause is an autonomous question (and only an autonomous question)

In light of the Court’s restrictive approach to the characterization of issues relevant to substantive validity, the Court consequentially rules at [51] 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 Art 25(1) of the Brussels Ia Regulation, but to autonomous criteria which are derived from that Art 25 as interpreted by the Court.’

Seemingly, to justify that autonomous approach, the Court relies on the fact that the former Art 17(4) of the Brussels Convention expressly provided for clauses to the benefit of one party and that asymmetric jurisdiction agreements which favour consumers, insureds etc, and employees are contemplated and permitted by Recast: [48]–[50], [52]. For cogent criticism on the latter point, see Geert van Calster’s post.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 1.27–1.36 cf paras 6.69–6.82

 

IV. Whether a jurisdiction clause is sufficiently precise is a question to be resolved by applying an autonomous standard

The Court reiterates the requirement that the court or courts on which the agreement confers jurisdiction must be sufficiently precisely identified, and that this applies to Art 25(1) of the Recast, as it did to the Recast’s predecessors: [45]. Any complaint about an asymmetric jurisdiction clause being insufficiently precise must, therefore be resolved autonomously: [47].

Frustratingly, the Court merely repeats the crux of that previous case law without elaboration at [42]:

‘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 … 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.’  (C-387/98 Coreck, para 15; C-222/15 Hőszig, para 43).

Asymmetric Jurisdiction Clauses (OUP 2023), paras 6.05–6.07

 

The Court’s decisions on the second question:

 V. Assessed autonomously, an asymmetric jurisdiction clause is valid under EU law and sufficiently precise where the optional limb can be interpreted as contemplating proceedings only before an EU Member State or EFTA Lugano State court

The Court rules that an asymmetric jurisdiction is in principle valid/admissible under EU law, relying especially on the need to protect party autonomy (recital 19) (see [56], [58], [64], [65]). No surprises there, until one does a double take at [58]: what the Court rules is valid is an asymmetric jurisdiction clause the optional limb of which is limited to courts with jurisdiction under the Recast and the 2007 Lugano Convention. More on that in a moment (see VI).

So far as the requirement of precision of content is concerned, the Court rules at [59] that an asymmetric agreement clause which designates a particular EU Member State or EFTA Lugano State court, on the one hand, and courts which have jurisdiction under the Recast and 2007 Lugano Convention, on the other, ‘satisfies the requirement of precision resulting from Art 25(1) of that regulation and the objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16 of that regulation.’ Subject to the reservations I have as to what the Court means by the word ‘designate’ (see VIII below), that seems to me to be a cogent conclusion:  ‘any court with jurisdiction’ is an objective factor that is sufficiently precise, assessed from the perspective of a court seised: any court EU Member State or EFTA Lugano State court which would otherwise regard itself as competent has jurisdiction.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 6.09–6.10

 

VI. Assessed autonomously, an asymmetric jurisdiction clause is not sufficiently precise and contrary to EU law where the optional limb is to be interpreted as contemplating proceedings before a Third State court

The Court rules at [60] that, if, in referring to ‘another competent court … elsewhere’, the agreement ‘must be interpreted’ as meaning that it also designates the courts of one or more Third States, it would be contrary to the Recast. Put another way, the asymmetric clause in issue ‘is incapable of satisfying the requirement of precision, … unless it may be interpreted as designating the court of Brescia and the courts of Member States or States that are parties to the Lugano II Convention as having jurisdiction to resolve disputes between the parties’: [62] (my emphasis). In practical terms, if the words ‘another competent court … elsewhere’ could encompass an English court, for example, because one of the parties has some connection to England, the clause would not be valid under the Recast.

What I find curious about this aspect of the Court’s decision is the lack of clarity in the reasoning it used to get there. It reasoned, at [60], that where the optional limb can be interpreted as contemplating proceedings before a Third State court:

‘that agreement conferring jurisdiction would not be consistent with the objectives of foreseeability, transparency and legal certainty referred to in recitals 15 and 16 of that regulation, to the extent that EU law does not, in itself, make it possible to designate the courts which have jurisdiction, as that designation is, where appropriate, the result of the application of the rules of private international law of third countries.’

While it is true that whether a Third State court is competent is not the result of EU law, it is difficult to see why that matters if the requirement of precision applies to the clause as a whole and is to be assessed only from the perspective of a court seised. Indeed, it is difficult to see why the criterion ‘another competent court … elsewhere’ is not an objective factor or why it is insufficiently precise, assessed only from the perspective of a court seised: any court which would otherwise regard itself as competent has jurisdiction, whether that court is a Third State court or not. Although the optional limb does not, in my view, confer jurisdiction on those courts (only the clause’s first sentence designating the courts of Brescia does that), the optional limb provides a criterion allowing any court that is seised to determine whether it is one of the courts before which the parties had contemplated that the option holder could bring proceedings.

Instead, the Court could have more persuasively justified its decision by elaborating on its previous case law in C-387/98 Coreck and C-222/15 Hőszig to clarify that the requirement of precision applies as much to the parties as it does to the court. Put another way, the Court could have clarified that the requirement of precision is not to be examined purely from the perspective of a court seised; rather, as a result of the ‘objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16’ of the Recast,  it also requires that the parties be able to foresee from a jurisdiction clause where they may be called upon to defend proceedings. Reference to C-566/22 Inkreal paras 28–29 would have done the job. There, the court said that an agreement conferring jurisdiction coheres with the aim of legal certainty because it ‘helps the applicant to ascertain the court before which he or she may bring proceedings and the defendant to foresee the court before which he or she may be sued, and enables the national court seised to be able readily to decide whether it has jurisdiction’. (The Court did refer to Inkreal but, unfortunately, not to make this point.)

I had foreshadowed the Court’s decision at [60] and [62] as a possible problem for asymmetric clauses of this kind, albeit on the argument that an aspect of the requirement of precision under EU law ought to be that the agreement should allow a reasonably well-informed defendant to foresee the courts before which they may be sued. I had suggested that since it was uncertain what the CJEU may say, it might be thought prudent for drafters to specify (expressly) that ‘any competent court’ is restricted to those within the EU or to an EFTA Lugano State, if that was their intention. In light of the CJEU’s decision, that suggestion may well warrant some serious consideration.

The Court’s decision may also give cause to reconsider non-exclusive jurisdiction clauses which designate one EU Member State or EFTA Lugano State court, to the extent that these impliedly permit both parties to bring proceedings before any other competent court, including Third State courts.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 2.31–2.33, 5.50, 6.10, 6.14–6.24

 

Unanswered questions

VII. So is the clause in Case C-537/23 Società Italiana Lastre sufficiently precise and compatible with the Recast?

This is not a question for the CJEU to answer and, on my reading, it is not one which the Court did. For a different view, see Gilles Cuniberti’s post. Note that the Court’s careful use of conditional language in [60] and [62] ‘if’ … ‘unless’… One may only speculate on how a French court will now interpret the clause against the backdrop of the CJEU’s rulings.

 

VIII. Which court(s) does an asymmetric clause ‘designate’? And how does the substantive validity rule work for them?

The Court, is to my eyes, vague or perhaps ambivalent as to which court or courts an asymmetric clause typically ‘designates’ (ie confers jurisdiction on/ prorogates the jurisdiction of). Does it designate (1) only the ‘anchor court’ (to use Richard Fentiman’s words), here Brescia, and merely preserve the special or general jurisdiction that other courts have under the Recast or 2007 Lugano Convention for one of the parties? Or (2) does it ‘designate’/confer jurisdiction on/prorogate the jurisdiction of all those courts? The Court’s reasons at [55] suggest the latter and [59] appears to contemplate both possibilities.

This opacity is regrettable for multiple reasons. One reason is that the conflict-of-laws rule in Art 25(1) for determining a clause’s substantive validity presupposes that the clause confers jurisdiction on/designates only one court. That conflict-of-laws rule necessitates the following interpretation for an asymmetric clause of this kind: only the anchor court is ‘prorogated’ and the jurisdiction under the default rules of the courts the subject of the option is preserved but not prorogated. On that argument: if the anchor court is seised by either party, it should apply the law selected by its conflict-of-laws rules to the substantive validity of the clause (assuming renvoi is included – see IX below). If, instead, another court is seised, it should apply the law selected by the anchor court’s conflict-of-laws rules to the clause’s substantive validity. Whether that other court is seised by the option holder, according to the agreement, or by the non-option holder, contrary to it, is immaterial for the purposes of the rule.

Put another way, if that argument is wrong and an asymmetric clause of this kind ‘designates’ more than just the anchor court, the Court will (again) be called upon to explain how the substantive validity rule is supposed to work for a clause that ’designates’ multiple courts. It is a shame that it did not grasp the nettle and do so in this case.

Asymmetric Jurisdiction Clauses (OUP 2023) paras 5.07–5.09, 5.33, 6.58–6.59

 

IX. Is renvoi included in the substantive validity rule?

Also unfortunate is that the Court did not clarify whether the conflict-of-laws rule for substantive validity in Art 25(1) includes renvoi as recital 20 suggests. At [33], as Geert van Calster has highlighted, the Court quotes recital 20 in its entirety but for the crucial words ‘including the conflict-of-laws rules of that Member State’. Alignment of the conflicts rule in Art 25(1) with the COCA Convention, which the Court appears to favour (see II above) would militate in favour of including renvoi. What one should make of the Court’s misleading truncation of recital 20 is, therefore, anyone’s guess.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 6.50–6.51

 

Luxembourg should expect more questions to come…

Brooke Marshall.

Commission / Croatie (Décharge de Biljane Donje II)
Environnement et consommateurs
La Cour impose des sanctions financières à la Croatie pour n’avoir pas géré de manière adéquate des déchets mis en décharge présentant une menace pour la santé humaine et l’environnement

Commission / Allemagne (Directive lanceurs d’alerte)
Rapprochement des législations
Manquement d’État : cinq États membres sont condamnés à des sanctions financières pour défaut de transposition de la directive « lanceurs d’alerte »

D. K. (Dessaisissement d’un juge)
Droit institutionnel
Indépendance des juges : la décision de dessaisir un juge de ses affaires doit être fondée sur des critères objectifs et précis

Cymdek
Transport
Droits des passagers aériens : une carte d’embarquement peut suffire à prouver une réservation confirmée sur un vol

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.