Case law Developments in PIL

New French Reference on Res Judicata under Brussels I bis

This post was contributed by François Mailhé, who is Professor at the University of Picardy – Jules Verne.

On 17 November 2021, the French Cour de cassation rendered a decision making a reference for a preliminary ruling to the European Court of Justice on the regime of res judicata under the Brussels I Regulation. Readers of the blog will recall that the Cour de cassation had already made a reference on the same issue a few months ago (see the report of this decision of 8 September 2021 of Fabienne Jault Seseke here). The purpose of this post is to share some views on the various methods the Court may follow in its answer, as illustrated by but not limited to this November reference (and possibly for a joined cases decision), and what is at stake behind them.


The case is simple. A decade ago already, a Luxembourger company, Recamier, sued for tort a former member of the board, Mr “Z”, based on an alleged misappropriation of assets. The claim was eventually rejected on appeal, in January 2012. Whatever the reality of the facts, Luxembourg law knows the principle of non additionality and this claim could only be based on contractual liability, not on tort.

One month later, Recamier followed up with the suit by seizing a French court, where Mr Z was domiciled. It was based, in line with that Luxembourger decision, on a contract claim. Still, before that court and in a long series of five decisions afterwards (the Cour de cassation was first seized after the first appeal decision for a problem of motivation), the dispute focused on the preclusive effect, the res judicata of that Luxembourger decision. For the defendant, claimant was barred to act in France for the same claim, even changing the legal basis. This is what this 17 November 2021 Cour de cassation decision was concerned with.

How come res judicata could be opposed to the contractual claim, when only an action in tort was decided in Luxembourg? This has to do with the Cesareo decision of the Cour de cassation (Plenary Assembly) of 7 July 2006. Under French law, the res judicata effect is indeed conditioned to the identity of the claims, an identity verified in the three classical elements : parties, cause and subject-matter, with the “cause” being understood as the arguments raised by the claimant in support of his claim. But, where before 2006 these arguments were both arguments of facts and law, the Cesareo decision restricted them to factual arguments only. In other words, a claimant may not bring a new suit on the same facts for the same purpose even if he changes the legal basis for it. Recamier was therefore, under this case-law, barred from claiming liability from Mr Z on the basis of contract law if it had already tried it before, even if only in tort.

The problem now unfolds : why applying French law, the law of the State where recognition is sought, to the effect of a Luxembourger decision? Should not one apply Luxembourg law, the law of the State of origin? Or, as its effect is here based on Article 33 Brussels I (Article 36 Brussels I bis), a European notion of res judicata? This is what the Cour de cassation wondered, and what it forwarded to the ECJ.

But the preliminary question could not be avoided : the precedents on the issue are not conclusive, and the issue actually begs for more than one question, or rather more than one layer of questions, because before choosing the solution, the ECJ will have first to choose the method for finding it: conflict rule, autonomous notion or something else?


This is not the first time the ECJ will have to characterize the elements of res judicata.

We should start by excluding as precedents those cases dealing with the identity of the claims in lis pendens situations. This case-law has been made to anticipate conflicts of decisions precisely in a context of diversity of national res judicata regimes. Its understanding of an identity of claims therefore embraces more than it specifies.

Instead, it seems more fruitful to turn towards those cases where the Court had to handle the regime of the foreign judgment. It was the issue in Hoffmann (ECJ, 4 February 1988, Case 145/86), Apostolides (ECJ, 28 April 2009, Case C-420/07) and Gothaer (15 November 2012, Case C-456/11) with different perspectives.

In Hoffman and Apostolides, the Court quoted the Jenard Report, considering judgments must be acknowledged the “authority and effectiveness accorded to them in the state in which they were given”. But both decisions also added to that quote by allowing the law of the State of enforcement to reframe or even refuse these effects according to its own standards. The solution is even less certain that the two decisions did not exactly phrase any general solution, but rather specific exceptions. What is more, or rather less helpful for Recamier is that those decisions were concerned with the substance of a foreign judgment, an issue quite different from res judicata which deals with a procedural effect of the judgment, independently from its substance.

Gothaer is more interesting, since it precisely intends to create such an effect. Asked whether a Belgian judgment on competence (more exactly on the effect of the validity of a forum selection clause) could prevent the issue to be discussed anew in Germany, the Court answered it should, considering that “[the] requirement of the uniform application of European Union law means that the specific scope of that restriction must be defined at European Union level rather than vary according to different national rules on res judicata”. The Court even went further than AG Bot’s opinion in providing a regime for such an effect, aligning it to that of the decisions of the General Court of the ECJ. It justified the solution by considering it defines the “concept of res judicata under European Union law”. But the scope of that case may limit its interest, as it seems related to competence decisions alone.

Overall, those precedents do not definitely choose between conflict rules and autonomous notions of substantive rules. It will be one of the issues the ECJ will therefore have to decide upon.

First Method: A Conflict of Laws Rule

It must be noticed that the Cour de cassation actually asks the ECJ if it wants to create an ad hoc European conflict of laws rule. This is, by itself, an interesting opportunity. Seldom has the ECJ taken the chance to forge a new conflict rule (see e.g., though, and very implicitly, CJEU, Civil service tribunal, 14 oct. 2010, Mandt), since most conflict of laws issues it has encountered were submitted to conflict rules of the forum (now generally covered by a European rule, Rome I and II especially). Creating such an ad hoc conflict rule would be a very interesting move by the ECJ, both as it would be a sound solution and as it would give another dimension to the court’s case-law (in line with the EU favour for this kind of legislation those two last decades).

But, as often, the problem would lie in the choice of the connecting factor. Both those proposed by the Cour de cassation have serious claims to be applied. The law of the country of origin is probably the law the claimant (who is the one primarily concerned by res judicata) contemplated during the proceedings there since the possibility to restart proceedings in another country later on was simply not in his interest. Reciprocally, it is as true to say that res judicata is an effect that concerns the legal system, more than individual decisions. This is actually the usual solution given in common PIL by French case-law. The legislation on res judicata aims at preventing litigation to restart before a new court, so that it is this second court, and second judicial system, which is most concerned with it (it actually only mirrors the variety of rationale for the recognition of a foreign judgment, see Cuniberti, Le fondement de l’effet des jugements étrangers, Collected Courses of the Hague Academy of International Law, vol. 394). Some even offer to distinguish the issues within the res judicata regime to have each governed by one of those laws or by the law of the claim (in French again, see Peroz, La réception des jugements étrangers dans l’ordre juridique français, LGDJ 2005).

The exact analysis could therefore be that, somehow, the effect should be governed by both law of origin and law of recognition (by analogy, this is the approach followed by both Hoffman and Apostolides).

As a consequence, accepting the idea that both laws should have a say in the matter, the question differs. It is not so much about defining a correct conflict rule than, quite simply, a matter of deciding on the relevance of the limits imposed upon the effects of a foreign decision. Here, the obvious question is whether the very specific French solution may be applied to a Luxembourger decision. This is where uniform European substantive rules have more relevance.

Second Method: An Autonomous Notion of res judicata

The general phrasing of the decision in Gothaer, together with the generality of the regime of the General Court decisions it is referring to, could be considered as offering all national court decisions a res judicata effect similar to that of the decisions of the General Court of the ECJ.

This would clearly be disastrous. As developed elsewhere (“Entre Icare et Minotaure. Les notions autonomes de droit international privé de l’Union », in Le droit à l’épreuve des siècles et des frontières, Mélanges en l’honneur du professeur Bertrand Ancel, LGDJ/Iprolex 2018, p. 1137), creating European autonomous notions is not innocuous. Words in European texts may refer to situations of facts which definition can be given autonomously at the European level, but it is an entirely different thing when such a word actually relates to a notion which is itself governed by a whole regime. A good example is the Coman case (ECJ, 5 June 2018, C-673/16). In this famous case on the notion of “spouse”, it was proposed that the Court develop an autonomous notion of “marriage” to have all spouses (same-sex or not) benefit the same rights of free movement within the EU despite prohibiting national laws. But such a “autonomous” notion would have actually been very fragile, since it would not have masked that the validity and otherwise general effects of marriages must be verified according to national laws, and that any such notion of “autonomous marriages” would risk offering dual situations to the spouses: they could be married “autonomously” and unmarried nationally. Marriage is a national notion because it covers national regimes ; creating an autonomous “marriage” would be like tailoring a jacket for a ghost.

Instead, in Coman, the ECJ wisely decided to refrain from doing so, and only refused to member State the possibility to prevent recognizing foreign marriages on the basis of gender of the spouses. It is therefore not the notion of marriage itself which is autonomous, but only, for purposes of EU law, that part of its regime relating to the condition of gender. The Court decided to limit the freedom of the States to impose their views for the necessities of free movement ; the same, actually, that is done for public policy or overriding mandatory provisions exceptions.

Res judicata, while it is not as sensitive as a person status, poses the same problem : it is not limited to characterizing a situation but also opens legal effects. Behind the universally admitted principle, it meets practice with a variety of regimes adapting to different situations and (national) political choices : the origin, type, content, wording, status of the decision may vary its effect, not even mentioning, of course, its procedural status as means of defence (Barnett, Res judicata, estoppel, and foreign judgments : the preclusive effects of foreign judgments in private international law, OUP 2001).

If the court doesn’t want to engage into tailoring a conflict of laws rule, it is therefore safer in this Recamier case to keep to a minimalist approach such as in Coman (and actually, also such as in Hoffman again): deciding whether, under Article 33, the French Cesareo case-law may be attached to a foreign judgment which law does not know any equivalent.

Third Method: Evaluating the Conformity of the French Cesareo Case-law with the objectives of Article 33 of the Regulation

It is customary for the Court to rephrase questions for them to be more abstract, so let’s try it : may a State consider inadmissible claims already brought before another member State court when those claims would be admissible in that other State because they were based on another legal ground?

To that very specific question, no overarching EU principle seems, prima facie, at stake. It may therefore be of help to understand the aim of that case-law. Its very purpose, according to a common opinion in France, is to reduce the influx of cases brought before the French courts, already struggling with a very heavy caseload. It could therefore be considered a legitimate objective for a country regularly sanctioned for the length of its procedures.

But the argument brought forth by the decisions themselves is, on a free translation, that “it is incumbent on the claimant to present, at the time of the first application, all the pleas in law which he considers to be relevant to the claim”. This stresses out that, according to French law, the claimant has some kind of a duty to gather all the legal grounds for his claim in the first instance. How may such an obligation be justified when the law of that first instance didn’t provide it? This is especially true of a situation where that first decision may also have an impact on competence, forbidding to go back to this first State to pursue an otherwise perfectly legitimate claim and pushing claimant in a catch 22 situation.

In the case the Court of Justice would decide to narrow the issue down to that very specific point, it should probably lean, therefore, towards a negative answer.


As a conclusion, one may say a stable conflict of laws rule would be preferable for predictability (and from the perspective of the policy of the Court). Perhaps a bold Court could pose a conflict rule (probably in favour of the law of origin, as the Jenard report seems to call for) with some limitations (in favour of the law of the country of recognition, as Hoffman had already announced on another issue). It calls for longer discussions elsewhere, but the ECJ’s decision is its own and the core issue may be dealt with at lower cost. At least Gothaer seems a precedent not to follow on this issue.

This has been a long post, with more issues than answers probably. I confess this is work in progress and here were only some thoughts about it, but I hope they will provide food for those of the readers of the blog.