French Supreme Court Rules Article 25 Brussels I bis Lacks Overriding Mandatory Provision Exception

In a judgment of 2 April 2025, the French supreme court for private and criminal matters (Cour de cassation) ruled that there is no exception in Article 25 of the Brussels I bis Regulation to the enforcement of jurisdiction clauses to ensure the application of the overriding mandatory provisions of the forum. As a consequence, it declined jurisdiction on the ground of a clause providing for the exclusive jurisdiction of an Irish court despite the argument that a French international mandatory norm might apply.

The judgment is unsurprising. The Cour de cassation had already refused to consider that the applicability of a French overriding provision was a ground for denying enforcement to jurisdiction in 2008 in Monster Cable v AMS. The case, however, was concerned with a clause providing for the exclusive jurisdiction of an American court, and the judgment had thus applied the French common law of jurisdiction.

Background

The case was concerned with a woman (who was likely a French resident) who had opened an instagram account for professional use. For this purpose, she had accepted the general conditions of Meta platforms Ireland Limited, which included a clause granting jurisdiction to Irish courts.

She alleged that her account was hacked and sued Meta in France. Meta challenged the jurisdiction of French courts.

The French rule

The plaintiff argued that French courts should not enforce the jurisdiction clause on the ground that Article 1171 of the French civil code applied as an overriding mandatory provision.

Article 1171 establishes that clauses in adhesion contracts are unenforceable if they create a significant imbalance between the parties. The provision has been translated as follows:

In a standard-form contract, any term which is non-negotiable and determined in advance by one of the parties and which creates a significant imbalance in the rights and obligations of the parties to the contract is deemed not written.

The assessment of significant imbalance must not relate either to the main subject-matter of the contract nor to the adequacy of the price in relation to the act of performance.

To my knowledge, the Cour de cassation has never suggested that the provision might be an overriding mandatory provision.

Some French scholars discussing the case on social media have also pointed out that, even if it were an overriding mandatory provision, it is unclear whether the requirement that a jurisdiction clause would create a significant imbalance in the rights and obligations of the parties would be met.

The Judgment

The Cour de cassation did not even decide whether Article 1171 was an overriding mandatory provision.

It ruled, first, that the issue of the law applicable to jurisdiction clauses is outside the scope of the Rome I Regulation. The plaintiff had relied on Article 9 of the Rome I Regulation to justify her argument. The court rules implicitly that the Rome I Regulation was irrelevant for the purposes of the case.

The court then cited Article 25 of the Brussels I bis Regulation, and noted that it does not include any particular exception concerned  with overriding mandatory provision. It concluded that the argument based on the existence of a French overriding mandatory provision was thus inoperative, as it was irrelevant for the resolution of the case.

Assessment

As many readers will know, courts in other Member States have accepted to deny enforcement of jurisdiction clauses on the ground that an overriding mandatory provision applied.

In this case, the alleged overriding mandatory provision was a general rule of validity of contracts. The CJEU has recently ruled that it falls within the scope of the law governing the substantive validity of the jurisdiction clause within the meaning of Article 25. It is doubtful that the CJEU would accept that the Member States remain free to override the application of the law of the chosen court on the ground that an overriding mandatory rule of the non chosen court might apply.

The Brussels I bis Regulation only includes a rule on the obligation of the chosen court to retain jurisdiction. Unlike the 2005 Hague Convention, it does not include a rule on the obligations of non chosen courts. What should be the influence of Article 6 (c) of the Hague Convention, which provides that a non chosen court may retain jurisdiction if enforcing the clause would violate its public policy, on the interpretation of Article 25 of the Brussels I bis Regulation? But the case law of the CJEU on the relevance of the Hague Convention for the purpose of interpreting Article 25 lacks consistency. It sometimes rules that the 2005 Hague Convention is relevant, sometimes that it is not.