Is Denmark an EU Member State for Purposes of the 2005 Hague Convention?

Trustpilot is a platform which presents itself as the world’s largest independent customer feedback platform which empowers people to share their feedback, while businesses benefit from their customers’ genuine experiences.

At a certain point in time, Trustpilot, which is headquartered in Denmark, operated through a Danish company and its contractual documentation included a choice of court agreement providing for the jurisdiction of Danish courts. It seems that Trustpilot then amended its Terms of Use and Sale for Business, which provide today for the jurisdiction of English or US courts (alternatively).

In the early 2020s, a number of French based professional customers sued the Danish company in French courts seeking removal of allegedly defamatory reviews appearing on the website. As could be expected, Trustpilot relied on the jurisdiction clause to challenge the jurisdiction of French courts.

English Jurisdiction Clauses

In cases subject to English jurisdiction clauses, the Paris Court of Appeal and the Pau Court of Appeal both applied the 2005 Hague Convention. Both courts noted that the Brussels I bis Regulation did not apply to a clause providing for the jurisdiction of a third State, and the Paris Court of Appeal added that it was not necessary either to apply the disconnection clause in Article 26 of the Hague Convention, since there should be no conflict to resolve.

Danish Jurisdiction Clauses

In cases subject to Danish jurisdiction clauses, French courts applied directly, and it seems without much debate, the Brussels I bis Regulation. In particular, the supreme court for civil and criminal matters (Court of Cassation) ruled in a judgment of 17 December 2025 that French courts lacked jurisdiction to entertain an action of a French customer against Trustpilot on the ground of Article 25 of the Brussels I bis Regulation without discussing the potential application of the Hague Convention.

Is Denmark a Member State of a Regional Economic Integration Organisation?

Denmark is both a Member State of the European Union which applies the Brussels I bis Regulation, and a Contracting State to the 2005 Hague Convention. The Danish jurisdiction clauses thus triggered both the application of the Brussels I bis Regulation and of the Hague Convention. A conflict existed, which should be resolved by application of the disconnection clause in Article 26.

The problem, however, is that the Brussels I bis Regulation does not apply directly in Denmark. It applies on the basis of a bilateral agreement between the European Community and Denmark. The Hague Convention does not apply in Denmark because it is a Member State, but because Denmark ratified the Hague Convention independently.

It is thus unclear that the specific provision in the Hague Convention to disconnect the application of the Hague Convention with respect “to rules of a Regional Economic Integration Organisation that is a Party to this Convention” covers Denmark. Article 26(6) reads:

(6)  This Convention shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention, whether adopted before or after this Convention –

a) where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation;
b) as concerns the recognition or enforcement of judgments as between Member States of the Regional Economic Integration Organisation.

One view, which was shared by the late Peter Mankowski (see Mankowski in Cuniberti/Marshall/Teitz, The Hague Convention on Choice of Court Agreements – A Commentary, Elgar 2025, para. 26.045), is that the said bilateral agreement is a rule of EU law, and that it thus qualifies as a rule of a REIO within the meaning of Article 26(6).

Another view could be, however, that the bilateral agreement is precisely not the Brussels I bis Regulation, but an international treaty, and that whether it displaces the Hague Convention should be determined under the rules in Article 26(1)-(5) of the Convention.

One of these rules is Article 26(2) of the Hague Convention, which provides:

(2)  This Convention shall not affect the application by a Contracting State of a treaty, whether concluded before or after this Convention, in cases where none of the parties is resident in a Contracting State that is not a Party to the treaty. 

As the wording of Article 26(2) parallels that of Article 26(6), it may well be that the debate is purely academic and that the Hague Convention gives way to the Brussels I bis Regulation in any case. One could wonder why the drafters included two distinct provisions which are substantially the same. The reason is likely that EU regulations are not strictly speaking treaties, and thus might not have fallen within the scope of Article 26(2). Also, Article 26(6)(a) is necessary to introduce a second rule  for REIOs on recognition of judgements (Article 26(6)(b)), which is not identical to Article 26(4).