October 2025 at the Court of Justice of the European Union
In October 2025, the Court will deliver several opinions and decisions on the interpretation of private international law instruments.
AG R. Norkus’ opinion in case C-516/24, Winderwill, is scheduled for Thursday, 2 October. The request for a preliminary ruling originates from the Amtsgericht Schleswig (Germany). It focuses on the Maintenance Regulation:
Is an application for legal aid, to which an application to vary in a matter relating to maintenance obligations – which is intended to be formally submitted in the event that legal aid is granted – is attached only in draft form, an ‘equivalent document’ within the meaning of Article 9(a) of the EU Maintenance Regulation, with the result that a national court has been seised and the jurisdiction of that court established?
I reported on the facts of the case here, on the occasion of the hearing which took place last June.
One week later, on Thursday 9, the Court will hand down its judgment in case C-540/24, Cabris lnvestments. The Handelsgericht Wien (Austria) has referred five questions to Luxembourg. Only if the first one, on Article 25 of the Brussels I bis Regulation, is answered negatively will the remaining four be relevant:
Is Article 25 of the [Brussels I bis Regulation] to be interpreted as meaning that an agreement conferring jurisdiction in which the contracting parties, who are domiciled in the United Kingdom and therefore (now) in a third State, agree that the courts of a Member State of the European Union are to have jurisdiction over disputes arising under that contract, falls within the scope of that provision, even if the underlying contract has no further connection with that Member State chosen as the place of jurisdiction? Do the underlying principles of the decision of the European Court of Justice on C‑566/22 of 8 February 2024 therefore also apply in the same way if the date of conclusion of a jurisdiction agreement between two parties domiciled in the United Kingdom still falls within the period before the end of the transitional phase of Brexit on 31 December 2020, but the action was only brought after Brexit took effect? This is taking into account the fact that the contractual situation between these (now) third-country nationals has no further connection to the chosen Member State of the European Union (see, however, Recitals 13 and 14 of the [Brussels I bis Regulation]) and, in addition, Article 50(3) TEU … generally excludes the applicability of the European treaties for the United Kingdom after Brexit.
If the European Court of Justice rejects the application of Article 25 of the [Brussels I bis Regulation] in the third-country scenario in question, the following further questions arise:
Is Article 68 of the [Brussels I bis Regulation] to be interpreted as meaning that it has definitively repealed the [1968 Brussels Convention]– including in proceedings relating to the United Kingdom (taking into account Brexit) – so that recourse to this Convention is currently no longer possible for a Member State of the European Union?
Are Article 69 of the [Brussels I bis Regulation] in the version of ‘List 3’ as notified pursuant to Article 76 [of the same regulation] and Article 55 of the [1968 Brussels Convention], 13th indent … to be interpreted as meaning that they have also definitively repealed the British-Austrian Convention on the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters signed in Vienna on 14 July 1961 and the Protocol signed in London on 6 March 1970 in relation to the United Kingdom (taking into account Brexit), so that in proceedings relating to the United Kingdom (taking into account Brexit), recourse to that international treaty of 14 July 1961 is no longer possible? This is also taking into account the fact that, pursuant to Article 70(1) of the [Brussels I bis Regulation], the conventions referred to in Article 69 of the [same regulation] retain their validity for those areas of law to which the regulation does not apply. Can an international treaty concluded with the Republic of Austria that has already been declared ‘superseded’ by primary law in the past be declared retroactively applicable again between those states after Brexit (so-called ‘revival of an international treaty’) pursuant to Article 70(1) of the [Brussels I bis Regulation] with regard to the United Kingdom? If so: Would such a ‘revival’ also apply within the scope of application of Article 56 of the [1968 Brussels Convention], which is similar in this respect?
Is Article 50(3) TEU … to be interpreted as meaning that it also precludes the application or ‘revival’ of Articles 17 and 18 of the [1968 Brussels Convention] in relation to the United Kingdom (taking into account Brexit) if, in proceedings initiated in Austria, two litigants domiciled in the United Kingdom are facing each other who have agreed in their contract – concluded on 6 May 2020 – that the Handelsgericht Wien (Commercial Court, Vienna, Austria) has exclusive jurisdiction? Does the provision in Article 50(3) TEU … take precedence over Article 66 of the [1968 Brussels Convention], according to which the Brussels Convention ‘[is concluded] for an unlimited period’?
Should the European Court of Justice come to the conclusion that the [1968 Brussels Convention] also takes precedence in the sense of questions 2.) to 4.) above in relation to the United Kingdom, the question arises: Does the fundamental primacy of the Brussels Convention preclude an arrangement in the United Kingdom according to which recourse to the Brussels Convention … is also expressly excluded with regard to jurisdiction agreements that were concluded prior to Brexit taking effect (see the UK provision under Section 82(1)(b)(i) of the ‘Regulations 4-25 Civil Jurisdiction and Judgments [amendments etc.] [EU Exit] Regulations 2019 [Sl 2019/479]’, which is valid until 29 February 2024 and is obviously still applicable here, as the action was brought on 30 June 2023)? If not: When examining the validity of a jurisdiction agreement concluded on 6 May 2020 (i.e. before Brexit) between two British companies with the choice of an Austrian forum, is an Austrian court nevertheless bound by this exclusion of application of the Brussels Convention – standardised in the United Kingdom – pursuant to Section 82(1)(b)(i) of Regulations 4-25 Civil Jurisdiction and Judgments (amendments etc.) (EU Exit) Regulations 2019 (Sl 2019/479), in particular due to the primacy of primary law, which would in principle prevent effective enforcement in the United Kingdom (The last question assumes, for the purposes of question 3.), the expiry of the UK-Austrian Convention on the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters signed in Vienna on 14 July 1961 and the Protocol signed in London on 6 March 1970)?
In the main dispute, the applicant is seeking payment from the defendant of an outstanding balance of (in total) EUR 360 000 on the basis of a contractual payment obligation. The applicant is a limited liability company incorporated under English law with its registered office in London. The defendant is a limited liability partnership equally incorporated under English law and with its registered office in London. The contractual basis for the service requested by the applicant can be found in the ‘consultancy agreement’ and the associated side letter dated 6 May 2020. In bringing the matter before the Commercial Court of Vienna, the applicant relies on an agreement on the place of jurisdiction, which can be found in this consultancy agreement with the associated side letter dated 6 May 2020, and which reads as follows:
This agreement and the relationship between the parties shall be governed by and construed in accordance with Austrian law. The Handelsgericht Wien (Commercial Court, Vienna) shall have exclusive jurisdiction over any disputes arising out of or in connection with this agreement or its enforcement or validity.
There is no recognisable close relationship between the parties to the dispute and the Republic of Austria beyond this agreement on jurisdiction.
In its response, the defendant disputes the international jurisdiction of the Handelsgericht Wien (Commercial Court, Vienna) essentially on the grounds that the Brussels I bis Regulation has no longer been applicable in relation to the United Kingdom since the end of the transitional phase of Brexit (31 December 2020). As a result, Article 25 of the Regulation is no longer applicable to the parties in this dispute, meaning that the underlying principles of the recent decision of the European Court of Justice of 8 February 2024 on C‑566/22 are not relevant. The agreement on jurisdiction in favour of the Handelsgericht Wien (Commercial Court, Vienna) as stipulated in the consultancy agreement with the associated side letter dated 6 May 2020 is therefore invalid and the court seized has no international jurisdiction.
The case has been allocated to a chamber of five judges (F. Biltgen, reporting; T. von Danwitz, A. Kumin, I. Ziemele, S. Gervasoni). The opinion of an AG was not considered necessary.
On the same day, the Court, sitting in a chamber of three judges (S. Rodin, N. Piçarra, O. Spineanu-Matei as reporting judge; no AG’s opinion) will also publish the decision in case C-551/24, Deutsche Lufthansa. The Sąd Okręgowy w Krakowie (Regional Court in Kraków, 2nd Division, dealing with Appeals in Civil Matters) is asking for the interpretation of the Brussels I bis Regulation:
Are cases concerning the pursuit of a claim acquired under an assignment agreement concluded with a consumer by a trader with its seat outside the Republic of Poland, which assigns the consumer’s claim against another trader which also has its seat in another country of the European Union, subject to the jurisdiction of Polish courts under the second indent of Article 7[(1)](b) and Article 7(5) of [the Brussels I bis Regulation]?
On the merits, the dispute concerns the action brought by AirHelp Germany GmbH (‘the applicant’), with its seat in Berlin, Germany, against Deutsche Lufthansa AG (‘the defendant’), with its seat in Cologne, demanding compensation of EUR 250 plus statutory default interest for a delayed flight. The factual basis for the claims asserted by the applicant is the (alleged) conclusion of an assignment agreement with a passenger bound to the defendant by a contract of carriage.
The Sąd Rejonowy (district court) found that the plea of lack of jurisdiction brought by the defendant was unfounded and denied the defendant’s motion to dismiss the claim. The defendant appealed the order in its entirety, alleging infringement of, among other, Article 7(1) of the Brussels I bis Regulation, by assuming that Article 7(1)(a) and the second indent of Article 7(1)(b) of Regulation No 1215/2012 justify Polish jurisdiction, whereas the applicant and the defendant were not bound by a contract of carriage; of Article 7(5) of the Brussels I bis Regulation, by misapplying it and finding that the fact that the defendant conducts its business in Poland through a branch justifies accepting the jurisdiction of the Polish courts in this case; and of Article 4(1) read in conjunction with Article 63(1)(a) of the Brussels I bis Regulation, by failing to apply them and not recognising that the Polish courts do not have jurisdiction.
On Thursday 23, sitting again in a chamber of three judges (A. Kumin, reporting, I. Ziemele, S. Gervasoni; no AG’s opinion), the Court will deliver its judgment in case C-682/23, E.B., on the interpretation of Article 25 of the Brussels I bis regulation in the context of the assignment of a claim. The Curtea de Apel Cluj (Court of Appeal, Cluj, Romania), the referring court, is seised on appeal against the judgment by which the Tribunalul Specializat Cluj (Specialised Court, Cluj, Romania) upheld the plea alleging lack of international jurisdiction of the Romanian courts in a dispute concerning non-contractual and contractual liability between two companies under Polish law:
Can Article 25 of [the Brussels I bis Regulation] be interpreted as conferring on the assignee of a claim arising from a contract the right to enforce the jurisdiction clause in that contract against the original party to the contract, if the assignment contract has, in accordance with the national law applicable to the substance of the dispute, transferred the claim and its ancillary rights, but not the obligations arising from the contract?
In a case such as the one described above, is the opposition of the party that agreed to the jurisdiction clause, against whom the action is brought, relevant for the purpose of determining which court has jurisdiction? In addition, is a new consensus required from that party, prior to or concomitant with bringing a legal action, in order for the third-party assignee to be entitled to rely on the jurisdiction clause?
The month will end with the publication of AG N. Emilou’s opinion in case C-198/24, Mr Green. A hearing was held last June (see here for a summary of the facts). Here, the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria), requests the interpretation of the European Account Preservation Order (EAPO) Regulation:
Is Article 7(1) of [the EAPO Regulation] to be interpreted as meaning that action taken by the debtor three years or more previously and/or obstacles to enforcement of the judgment in the Member State of the debtor are not to be taken into account?