Archive for category: Developments in PIL

On 2 December 2025, the Court of Justice of the European Union rendered its judgment in case C-34/24, Apple Store Nederland. The case was already commented on this blog by Jorg Sladic this morning as well as by Burkhard Hess a few weeks ago, and by Geert van Calster on his blog.

Both Burkhard and Geert are quite critical of the judgment, that they think amounts to legislating from the bench.

I only partly agree with them.

International Jurisdiction

If one focuses on international jurisdiction, Apple Store Nederland is, in my opinion, unsurprising, because, as I have already noted elsewhere, it was an easy case.

The CJEU rules that Dutch courts have jurisdiction because the damage occurred in the Netherlands. As all readers know, the court has ruled since 1976 that Article 7(2) grants jurisdiction to the court of the place of damage. The only issue was to determine the place where the damage was suffered in a case concerned with a website overcharging customers. This is not obvious, because this all happens on the internet (‘the virtual space’), but the Court rules that, in that case, it could be considered that the damage occurred in The Netherlands, because the relevant website (Apple Store Nederland) was focused on that country. It offered ‘apps for sale to users with an Apple ID associated with the Netherlands’. As a consequence, the victims were ‘likely’ to have their domicile or registered office in the Netherlands.

In other words, the CJEU rules that, in this case, it was ‘likely’ that all victims were residents in the Netherlands with an Apple ID associated with the Netherlands. It deduces from these facts that the damage was suffered in that country. True, the CJEU does not require proof that each of the victim did suffer damage in the Netherlands, but it suggests that this can be assumed in the present case. This is not the strictest possible interpretation of Article 7(2), but I would not say that this amounts to a dramatic departure of the rule.

Obviously, the case would have been much harder if the App Store had not been focused on a single country but, precisely, it was.

Domestic Territorial Jurisdiction

For its critiques, the real problem with the judgment is its impact on domestic territorial jurisdiction. The CJEU rules, in Geert’s words:

Dutch foundations can consolidate their collective claim in just one court in The Netherlands, despite the absence of a clear ex ante procedural rule in Dutch civil procedure providing for same.

And this, according to Burkhard and Geert, is unacceptable lawmaking from the CJEU.

Well, I must say that I have a hard time following this argument. The critical issue, it seems to me, is rather why, in the first place, the CJEU has ruled that the Brussels I bis Regulation is relevant at all in determining domestic territorial jurisdiction. The Brussels I bis Regulation is an instrument of international civil procedure. It should determine whether the courts of one Member State or another have jurisdiction. But how can the interference with domestic jurisdiction be justified in the light of the subsidiarity principle?

The CJEU has justified it on the difference in language between some provisions of the Regulation, which refer to ‘the courts of the Member State’, and others which refer to ‘the Courts of the place of …’ I have to say I am not impressed by this reasoning. Can subsidiarity really depend on such a formalistic argument?

But if you accept that the Brussels I bis Regulation interferes with domestic jurisdiction, how can you complain about a further extension such as the one suggested by the CJEU? This is certainly legislating from the bench, in violation of the subsidiarity principle, but it has started quite some time ago.

The decision in case C-240/24, BNP Paribas Fortis, will be delivered on 18 December.

After a Belgium bank refused to acknowledge the legitimation effect of a European Certificate of Succession issued in Poland, the issuing notary (the Notary in Krapkowice Justyna Gawlica – Krapkowice, Poland) started on its own motion proceedings to withdraw the certificate. In this context, he referred the following questions to the Cour of Justice:

1. Must Article 71(2) of Regulation (EU) No 650/2012 [on matters of succession] be interpreted as meaning that in the current proceedings to withdraw or modify a European Certificate of Succession that has been issued, the non-judicial authority issuing the certificate of succession is entitled to refer a question for a preliminary ruling pursuant to Article 267 of the TFEU?

and if the answer to that question is in the affirmative:

2. Does Article 71(2) of the above regulation allow for the costs of proceedings to withdraw or modify a European Certificate of Succession to be charged, based on national law, to a bank that was not a participant in the proceedings to issue this certificate, has not filed an application for its withdrawal or modification, but has questioned the legitimation effects of the certificate presented to it in such a way that has led to the issuing authority of its own motion starting proceedings to withdraw or modify the certificate, conducted with the participation of that bank?

and if the answer to that question is in the affirmative:

3.  Must Article 69(2) of the above regulation be interpreted as meaning that the bank to which a valid certified copy of a European Certificate of Succession is presented is not entitled to challenge the status as heir of the person identified in the certificate?

The case has been allocated to a chamber of three judges (M. Condinanzi, R. Frendo et N. Jääskinen as reporting judge). No opinion has been requested.

Additionally, I would like to report that on 11 December 2025, the Court of Justice published its ruling in case C-789/23, Tatrauskė. The request was made in proceedings between I. J. and the Registrų centras VĮ (Registers Centre, Lithuania), concerning the refusal by the latter of the request made by I. J. for the registration of information relating to her matrimonial property regime in the Lithuanian Register of Marriage Contracts. After the Regional Administrative Court of Vilnius dismissed as unfounded her action challenging the decision of the Registers Center , I.J. brought an appeal before the Supreme Administrative Court of Lithuania, the referring court. The question for a preliminary ruling concerns the interpretation of Article 21 of the TFUE:

Must Article 21(1) [TFEU] be interpreted as precluding national legislation under which a marriage contract concluded in another Member State of the European Union may not be recorded in the Register of Marriage Contracts if the marriage contract does not contain the personal identification number of at least one of the parties to that contract, as provided by the Population Register of the Republic of Lithuania, where, in circumstances such as those of the present case, the competent authorities of the Member State in which the marriage contract was concluded refuse to provide an extract from that contract supplemented by the relevant personal identification information?

AG M. Szpunar’s opinion, published on May 22, 2025, was already commented on the blog. Following his views closely, the Court (Second Chamber) has ruled that Article 21(1) TFEU

must be interpreted as precluding legislation of a Member State under which the registration in the Register of Marriage Contracts of a marriage contract concluded in another Member State is subject to the requirement that that contract contain the personal identification number, issued by that first Member State, of at least one of the two spouses, where such a requirement is not laid down in respect of the registration, in that register, of a marriage contract concluded in that Member State and where the information contained in that contract make it possible to identify the persons who concluded that contract.

Had someone asked me before 11 December 2025 to select three key principles underlying the application of Article 6 of the Rome Convention and Article 8 of the Rome I Regulation, dealing with the law applicable to individual employment contracts, I would probably have listed the following:

• Identical interpretation of the connecting factor of the habitual place of work across the Rome, Brussels and Lugano instruments – because the Rome I Regulation expressly states, in Recital 7, that “the provisions of this Regulation should be consistent with … Brussels I”, because this has been regularly repeated by the CJEU (see, for example, [50] of ROI Land Investments) and because achieving the identity between the law and forum was one of the original reasons for having special private international law rules for employment contract (see, for example, [13] et seq of Ivenel);
• A broad interpretation of the connecting factor of the habitual place of work and a correspondingly narrow interpretation of the connecting factor of the engaging place of business – because, as the CJEU has repeatedly stated (see, for example, [35] of Voogsgeerd), this is required by the principle of employee protection that underlies the whole of EU private international law of employment, given that the connecting factor of the engaging place of business does not guarantee a particularly close connection between that place and the employment contract and can be easily manipulated by the employer; and
• A relatively strict application of the escape clause – because, as the CJEU confirmed in the context of employment contracts at [40] of Schlecker, the escape clause applies only where the gravitational pull of the most significant elements which define the employment contract in question indicates a closer relationship between that contract and a country other than that whose law would apply under the choice-of-law rules based on the connecting factors of the habitual place of work and engaging place of business.

On 11 December 2025, the CJEU delivered a remarkable judgment in Case C‑485/24 Locatrans Sarl v ES ECLI:EU:C:2025:955, the effect of which is that my answer to this hypothetical question would have been completely wrong.

Facts and Question

I have already reported on the opinion of AG Norcus in a previous post, which contains a detailed description of the facts of the case. The key fact was that ES, after having worked for a certain time in one place, was called upon to take up their activities in a different place, which was intended to become the new habitual place of work.

The question that the CJEU had to answer was whether Articles 3 and 6 of the Rome Convention must be interpreted as meaning that account should be taken of the intended new habitual place of work in determining the objectively applicable law.

Judgment

There are three elements to the CJEU’s decision.

First, since the wording of the relevant parts of Article 6 of the Rome Convention (which refers to “the law of the country in which the employee habitually carries out his work in performance of the contract”) and Article 8 of the Rome I Regulation (which refers to “the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract”), on the one hand, and Article 21 of the Brussels Ia Regulation (which refers to “the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so”), on the other hand, is different, it is not necessary to interpret the connecting factor of the habitual place of work identically across these instruments ([46]-[53]).

Second, the CJEU noted that the broad interpretation of the connecting factor of the habitual place of work was adopted in Koelzsch and Voogsgeerd because these cases “each concerned an employee who had, during the entirety of his employment relationship, carried out his activities in more than one Contracting State and in respect of whom the connecting factor served to determine a single habitual place of work” ([43]). However, Locatrans was different because it “concerns the situation of an employee who also carries out his activities in several States, although for whom the habitual place of work moved to the territory of another Contracting State during the most recent period of the performance of his contract of employment” ([43]). This difference mattered because it required the court to “take the employment relationship into consideration as a whole” ([44]) and because “a change has occurred with regard to the habitual place of work, [so] no country, within the meaning of Article 6(2)(a) of the Rome Convention, can be identified” ([45]). Consequently, the law of the country of the engaging place of business would have been applicable under Article 6(2) ([54]).

Third, the CJEU implicitly recognised that the application of the law of the engaging place of business is unlikely to be in line with the principle of employee protection ([59]-[60]) and invited the referring court to apply the law of the intended new habitual place of work under the escape clause ([57]). Without a hint of irony, the CJEU said that this is required by the principle of legal certainty and foreseeability ([61]-[62]).

Comment

It will take a while for the full consequences of this judgment to become apparent. My first impression is that the CJEU unnecessarily complicated the matter and yet did not resolve it fully.

The CJEU ultimately invited the referring court to apply the law of the intended new habitual place of work under the escape clause. But surely it would have been simpler – and arguably fully in line with the case law on the determination of the habitual place of work under the Brussels instruments, in particular Mulox, Rutten (both concerning itinerant commercial representatives) and Weber (concerning a cook working on a ship and an offshore installation) – if the CJEU had said that the law of the intended new habitual place of work should apply as the objectively applicable law under Article 6(2)(a), rather than under the escape clause.

If the habitual place of work changes, for example from the law of Luxembourg to the law of France as in Locatrans, an additional question arises: whether, and if so to what extent, the previously applicable law remains relevant. AG Norcus addressed this point by applying the principle tempus regit actum. According to him, a change in the applicable law “must not affect legal relationships which arose prior to that change, so that, rationae temporis, the dispute remains governed by the law applicable at the time those circumstances arose” ([51] of the AG Opinion). However, the CJEU judgment is silent on this point.

This post was written by Anna Wysocka-Bar (Jagiellonian University). It is the fourth contribution to the EAPIL on-line symposium on the judgment of the Court of Justice of the European Union in Cupriak-Trojan. The previous posts, by Laima Vaige, Alina Tryfonidou and Elizabeth Perry, can be found here, here and here, respectively.

In this post I would like to provide some comments from the Polish perspective to the discussions on judgement given by the Court of Justice in Cupriak-Trojan (C-713/23).

Introduction

Some of the observations included in the opinion of the Advocate General and in the Court’s judgment are indeed very accurate: the foreign marriage certificate, in accordance with Polish Code of Civil Procedure, “must have the equivalent probative value as a Polish certificate” (para. 44 of the opinion). However, “those rules are not, in practice, applied by competent authorities” (ibidem), and therefore the transcription of the marriage certificate is the only way a person can prove a status as a married person (paras 44 and 60 of the opinion). In addition, “under Polish law, heterosexual couples are entitled to have their marriage certificate transcribed” (para. 74 of the judgment).

Given the above and the reasoning based on EU Law, the CJEU decided that Poland “is required to apply that procedure [of transcription – editors’ note] without distinction to marriages between persons of the same sex and those between persons of the opposite sex” (para. 75 of the judgment). Hence, all marriage certificates coming from EU Member States must be transcribed into Polish civil status registers.

Transcription of a Marriage Certificate

The Court’s judgement is now much debated in Poland, the Member State of origin of the preliminary question. As one can imagine, different, sometimes contradictory, statements are made. The judgement “comes as no surprise” (see for instance, a comment by the Commissioner for Human Rights here). The Secretary of state by the Prime Minister explained that the government must now internally “discuss how this judgment should be implemented … everything depends on the decision of the government and civil status registries” (see here).

Some commentators try to put the obligation to act in conformity with the judgement on the shoulders of the authority which is competent to transcribe foreign civil status certificates in Poland, namely the Head of the Office of the Civil Status Registry (Kierownik Urzędu Stanu Cywilnego). It must be underlined however that Kierownik Urzędu Stanu Cywilnego even if willing to transcribe a foreign marriage certificate of a same sex couple (which is often the case!) cannot do it currently (with no legislative changes implemented). The Law of Civil Status Records, an IT system, in which the records are created and kept, as well as the underlying marriage certificate form require to indicate the data of a “woman” (kobieta) and a “man” (mężczyzna). National ID numbers (PESEL) which are associated with a given person in the records also indicate the sex of the person concerned, and therefore, the IT system would not “accept” the data of two persons of the same sex in one certificate. Kierownik Urzędu Stanu Cywilnego does not have any tools to arbitrary decide how to fill in the two spaces or how to allocate them to same sex partners (compare para 23 Judgement).

It might seem that adjusting an IT system and forms is an easy, rather cosmetic change, but still it does not change the overall conclusion that amendments to the legislation on civil status records are needed. Suggestions that what we need is a change of the attitude of Kierownik Urzędu Stanu Cywilnego are – in my view – unfounded.

Effects of the Transcription

Imagining that necessary changes are implemented and transcription is being made, one can ask what the resulting consequences are. I do agree with the view presented by Laima Vaige in her post, that only a broad reading of what are consequence of transcription (recognition) should be adopted. Transcription of the marriage certificate, confirming the status of being in a marriage should result in being treated as “a spouse” for all purposes provided for in Polish law, to name some as example: maintenance, tax, social security or inheritance.

If it was supposed to be otherwise, it would require a whole reconstruction of the legislation on civil status records in Poland. If some marriage certificates would mean something different than others this would have to be clearly described. As noted “transcription generates a Polish civil status record which is ‘detached’ from the original record registering the event (…) the direct legal effect of the transcription of a foreign civil status record is the creation of a Polish civil status record which has the same probative value as civil status records drawn up in Poland” (para. 28 Judgement). And then also cross-border couples would still think twice before moving to Poland and therefore Polish law would still be at odds with the provisions of EU law elaborated on by the CJEU in the commented Judgement.

Introduction of Same Sex Marriages?

Imagining that transcription is being made, with all the relevant consequences under Polish law, one can ask if this would be in line with Polish law, for instance the Constitution, that same sex marriages contracted abroad give full range of rights in Poland whereas no such similar marriage can be contracted back in Poland, by those who do not exercise their freedom of movement within the EU. This would be hard to imagine, even if perfectly in line with the EU law (see para. 61 Judgement).

The Polish Minister of Justice explained (what is obvious) that the Judgement does not “automatically” mean that now same sex-marriages would be possible to be contracted in Poland, but while discussing the possibility of the introduction of such marriages into Polish law noted that the “Constitution refers to the protection of opposite-sex marriages, but does not mention the impossibility of same-sex marriages” (see here). The question whether introduction of same sex unions would require a prior amendment to Article 18 of the Constitution (which states that “Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland” – see para. 11 Judgement) is also debated in Poland for years already with contradictory views being presented.

A comment made by the secretary of state (see link above) seems very practical: “we are on the same path that all other countries have taken, which ultimately introduced marriage equality anyway (…) introducing marriage equality is much easier than introducing civil partnerships or cohabitation agreements.” The latter comment refers to current attempts to regulate registered partnerships. Proposals for new laws on registered partnership (here and here) are being discussed at different stages of legislative process.

It seems that the Judgment might serve as catalyst to the current works and also to possibility that Poland skips the registered partnership phase and goes directly to introduction of same sex marriages.

This post was written by Alina Tryfonidou, Assistant Professor in EU law and Family law at the University of Cyprus. It is the second contribution to the EAPIL on-line symposium on the judgment of the Court of Justice of the European Union in Cupriak Trojan. The previous post, by Laima Vaige, can be found here.

In its much-anticipated judgment in Cupriak-Trojan (C-713/23), the Court of Justice confirmed that same-sex marriages lawfully concluded in an EU Member State by Union citizens who have exercised free movement rights must be recognised by all Member States, including those whose national law permits only different-sex marriage.

This was not the Court’s first engagement with cross-border recognition of same-sex marriages. In Coman (C-673/16), the Court had already held that Member States must recognise such marriages for the specific purpose of granting a derived right of residence to the third-country national spouse of a Union citizen exercising free movement. But Coman left major questions open, including whether recognition of marriages in the context of EU free movement extends beyond the area of family reunification.

Cupriak-Trojan addresses the above question. As this post explains, the Court of Justice held that the obligation of recognition extends to all legal contexts in which married status may need to be invoked. Nonetheless, the Court left much undefined and therefore several questions arise from this ruling. Thus, as will be explained in this post, while it constitutes a landmark step for the rights of same-sex couples under EU law, the large discretion left to Member States may lead to inconsistent implementation and legal uncertainty.

What the Judgment Adds to the Existing EU Framework

The judgment clearly represents the next major step in the EU’s evolving approach to cross-border recognition of same-sex marriages. Its most significant contribution is the articulation of a broad, free movement-based, requirement of continuity of family status across Member States: if a couple is married in one Member State, that marital status cannot simply disappear when they move to or return to another. The existence of a limping status – i.e. being a married couple in one jurisdiction and legal strangers in another – constitutes in itself an obstacle to free movement, contrary to Article 21 of the Treaty on the Functioning of the European Union (TFEU).

This reasoning draws on the ‘serious inconvenience’ reasoning first articulated in the Court’s surnames case-law (e.g., Garcia Avello (C-148/02) and Grunkin Paul (C-353/06)), and, more recently, in the context of the cross-border recognition of changes in legal gender (Mirin (C-4/23)). The Court now explicitly extends the same logic to (same-sex) marriage: free movement requires coherence of personal and family status within the Union. For same-sex spouses, this is a significant clarification: the ability to live and function as a married couple cannot vary depending on where in the EU they happen to be.

The second point worth mentioning concerns fundamental rights. Although in line with the Court’s consistent approach the human rights analysis appears only at the justification stage, the Court nonetheless in this case engaged more substantially with this issue. Moreover, it relied not only on Article 7 of the Charter of Fundamental Rights of the EU (the Charter) (which needs to be read in line with Article 8 uropean Convention on Human Rights (ECHR)), but it also engaged with Article 21 of the Charter, which prohibits discrimination based, inter alia, on sexual orientation. This is a rather bold step as both the Court of Justice of the European Union and the European Court of Human Rights (ECtHR) have traditionally been cautious when addressing discrimination on grounds of sexual orientation and have often avoided explicit reliance on this ground when alternative reasoning was available. That the Court in this case relied explicitly on Article 21 of the Charter and used it to reinforce the illegitimacy of Poland’s refusal to recognise the marriage ‘under any form’, marks a turning point in the Court’s willingness to treat LGB equality as a serious fundamental rights concern.

Taken together, the above two elements mark a substantial advance beyond Coman: the obligation of recognition of same-sex marriages contracted in other Member States is no longer tied to a narrow functional context, such as residence rights, but extends to all spheres in which marital status may carry legal significance, whilst it is considered an important aspect of the fundamental rights that Union citizens enjoy under EU law.

Key Questions Left Open by the Ruling

Despite its important clarifications, the judgment leaves several critical questions unanswered, and this is likely to complicate both its interpretation but also its practical implementation.

One of the central ambiguities concerns the form of recognition required. In its judgment, the Court at no point does it state explicitly that national law must acknowledge the relationship using the label ‘marriage’. This, in combination with the fact that the Court requires transcription of the marriage certificate only where this is the sole route of recognition, suggests that the obligation may not, in general, extend to recognising the marriage as such. Instead, the judgment appears to follow the suggestion of the Advocate General, that it may suffice for Member States to recognise (merely) ‘the effects’ of the marriage.

This, however, creates uncertainty about the scope of the obligation. In particular, it is unclear whether recognising (merely) the effects of the marriage, entails granting access to all the rights conferred on married couples domestically, or whether Member States may limit recognition to a narrower set of rights. Although the ECtHR in its case-law has required States to treat same-sex and different-sex couples equally in various areas (see, e.g., Kozak v. Poland (App. No. 13102/02) and Pajić v. Croatia (App. No. 68453/13)), and although both the ECtHR and the Court of Justice have, in some cases, required equal treatment even where the couples had different legal statuses (see, e.g., Taddeucci and McCall v. Italy (App. No. 51362/09) and Maruko (C-267/06)), it remains unclear whether same-sex couples whose marriages are only recognised for their effects must receive all the rights that the recognising State gives to different-sex couples who marry under its own law or whose marriages it fully recognises. This uncertainty is bound to be especially problematic in sensitive areas such as parenthood, where States that exclude same-sex couples from marriage, have often intentionally reserved certain rights for married couples, precisely in order to prevent same-sex couples from accessing them.

A related question concerns the form that the recognition of ‘the effects’ of the marriage will take. Does the discretion left to Member States – acknowledged throughout the judgment – permit them to downgrade the marriage to another legal institution, such as registered partnership? The latter would be consistent with ECtHR case-law such as Orlandi and Others v. Italy (App. Nos. 26431/12, 26742/12, 44057/12 and 60088/12)and Formela and Others v. Poland (App. Nos. 58828/12 and 4 others). However, even if this issue is clarified, further questions arise: if downgrading is permitted, must it occur automatically? Or can Member States merely inform the couple that recognition is conditional on contracting a registered partnership domestically? But would such downgrading itself not amount to discrimination on grounds of sexual orientation contrary to Article 21 of the Charter, given that it would only occur for same-sex couples? Would it, also, not cause ‘serious inconvenience’ for the Union citizens concerned and would thus impede their free movement rights?

Another open question concerns the scope of the ruling. Throughout its reasoning, the Court stressed that the couple had been lawfully resident in the host Member State and had created or strengthened their family life there. This leads to the question whether the obligation to recognise marriages contracted in another Member States applies only where the marriage occurred in a scenario involving the exercise of free movement rights and the creation or strengthening of family life whilst the couple were resident in another Member State prior to their return to the State of recognition; thus, it is unclear whether the ruling also applies to couples who travel briefly to another Member State solely to marry and then return home seeking recognition.

Finally, Cupriak-Trojan, like Coman, does not address whether EU law requires recognition of same-sex marriages concluded in third countries, especially in situations where such marriages were initially contracted outside the EU but later recognised as marriages by a Member State. Reading Metock (C-127/08) – involving different-sex marriages – where it was noted that EU law imposes no requirement concerning the place of solemnization of the marriage, together with the Court’s analysis of the prohibition of discrimination based on sexual orientation in Cupriak-Trojan, it would appear difficult to justify excluding same-sex marriages contracted in non-EU States from the scope of recognition.

Conclusion

Cupriak-Trojan marks a significant development in the EU’s approach to the free movement rights of same-sex spouses. The ruling embeds the principle that family status acquired in one Member State must be recognised across borders, preventing the limping statuses that undermine the enjoyment of free movement rights. It also signals a greater willingness by the Court to rely on Article 21 of the Charter and to treat discrimination based on sexual orientation as an important part of its analysis. At the same time, key uncertainties remain regarding the form of recognition required, the implications of the recognition, the possibility of ‘downgrading’, and the scope of situations covered.

The judgment potentially carries its greatest implications for the Member States that currently offer no legal recognition for same-sex couples (Bulgaria, Poland, Romania, and Slovakia, as well as Lithuania, which remains without a legislative framework pending the implementation of its Constitutional Court judgment of April 2025) . These States must now recognise the effects of same-sex marriages concluded elsewhere in the EU, despite lacking any domestic legal institution that could accommodate or reflect such recognition. For obvious reasons, resistance is likely, particularly given that even the narrower obligation stemming from Coman remains only partially implemented in some of these jurisdictions.

The Court of Justice gave on 25 November 2025 its much-awaited judgment in Cupriak-Trojan (C-713/23). The ruling clarified the implications of Article 20 and Article 21(1) of the Treaty on the Functioning of the European Union (TFEU), concerning the citizenship of the Union, for the recognition of same-sex marriages across the Member States of the EU.

Specifically, the Court ruled that the above provisions, read in the light of Article 7 and Article 21(1) of the Charter of Fundamental Rights of the European Union (the Charter), on respect for private and family life and non-discrimination, preclude

legislation of a Member State which, on the ground that the law of that Member State does not allow marriage between persons of the same sex, does not permit the recognition of a marriage between two same-sex nationals of that Member State concluded lawfully in the exercise of their freedom to move and reside within another Member State, in which they have created or strengthened a family life.

EU primary law, the Court also explained, likewise precludes legislation that does not permit, in the described circumstances,

the transcription … of the marriage certificate in the civil register of the first Member State, where that transcription is the only means provided for by that Member State for such recognition.

The ruling adds a new chapter to the Court’s evolving case law on the cross-border portability of personal status and gender identity, following Coman (C-673/16), Pancharevo (C-490/20), K.S. (C-2/21), and Mirin (C-4/23). Another case on related issues is expected to be decided in the not too distant future Shipov, (C-43/24). Its relevance lies not only in the continuation of this case law line but also in assessing whether the Court has consolidated a pre-existing trend or has gone further.

An online symposium will be held on the EAPIL blog to discuss the Court’s Cupriak-Trojan ruling and the effects it entails.

On 9 December 2025, Laima Vaigė will provide a general presentation of the judgment and discuss its significance for the development of EU private international law. Alina Tryfonidou will then explore the implications of the judgment from a free movement and EU constitutional law perspective.

The day after, Elizabeth Stuart Perry will compare Cupriak-Trojan with Obergefell v. Hodges, the 2015 decision of the US Supreme Court whereby same-sex couples were recognised the right to marry in the US.

On 11 December, Anna Wysocka-Bar will address the consequences of Cupriak-Trojan in Poland, the Member State in which the case originated.

Finally, Marco Pasqua will assess the Court’s judgment in light of the recently adopted LGBTIQ+ Equality Strategy of the European Commission.

Readers are invited to share their views and feed the conversation by commenting on the posts.

This post was contributed by Burkhard Hess, who is professor at the University of Vienna. Two more contributions on the ruling of the Court of Justice in Apple Store Nederland appeared on this blog since this post was published, one by Jorg Sladic, the other by Gilles Cuniberti.

On 2 December 2025, the Grand Chamber of the Court of Justice gave its long-awaited judgment in case C-34/24, Apple Store Nederland.

The Court went for a fundamental expansion of Article 7(2) of the Brussels I bis Regulation (in the following: JR), reversing its prior case-law of the exceptional character of this special head of jurisdiction. The Grand Chamber held that in cases regarding infringements of cartel law via a platform addressed to specific Member States, each court in the Member State where the (pretended) damage occurred has (full) territorial jurisdiction to decide on the whole damage occurred in that Member State when the lawsuit is implementing a collective claim. Protagonists in consumer protection and in cartel damages will certainly welcome this outcome. However, the judgment’s line of argument does not convince me at all.

The Facts of the Case

In 2021 and 2022, two Dutch foundations brought representative actions against Apple Ireland before the District Court Amsterdam. They assert that they are acting in the interests of all users (consumers and professional users) of Apple products and services who have purchased products and services from App Store NL, an online platform. The plaintiffs pretend that Apple holds a dominant position in the market for distribution of apps which run on iOS and in the payment system for those apps (IAP) and that Apple is abusing its dominant position, within the meaning of Article 102 TFEU, by charging an  excessive commission on the sale price received.

The defendant contests the jurisdiction of the District Court Amsterdam. According to its submission, jurisdiction cannot be based on Article 7(2) JR, because the alleged harmful event cannot be located in Amsterdam since no specific event took place exclusively there. In the alternative, Apple argues that the referring court has jurisdiction only with respect to users who reside in Amsterdam or who made purchases in Amsterdam via App Store NL.

In an interlocutory decision of 16 August 2023, the Amsterdam court held, in relation to Apple Ireland, that Dutch courts have international jurisdiction on the basis of both alternatives of Article 7(2) JR: the place of the causal event and the place where the damage occurred. However, the court had difficulties in determining territorial jurisdiction. In addition, the court was uncertain about the effects of the representative actions having been brought, under Article 3:305a of the Dutch Civil Code (BW), by a legal person by virtue of its own right (that is, not as an agent, representative or assignee). Therefore, the Amsterdam court asks whether the collective nature of the claim could have a bearing on the determination of territorial jurisdiction, under Article 7(2) JR.

The Arguments of the Grand Chamber

In his Opinion of 26 March 2025, EU:C:2025:212, AG Campos Sánchez-Bordona referred to the constant jurisprudence of the Court according to which the special heads of jurisdiction are exceptions from the general rule (Art. 4 JR) and must be strictly interpreted. Moreover, the Opinion referred to the upcoming recast the Regulation and urged for judicial self-restraint in extending the scope of application of Article 7(2) JR.

The Grand Chamber (in the following: GC), however, adopts a different approach. Although the judgment starts by citing the Court’s jurisprudence on the strict interpretation of article 7(2) (para 44) and the requirement of a close relationship and proximity between the place of the damage, the GC finally deviates from its established case-law. The main arguments are found in the following paragraphs:

58. However, in the light of the Court’s interpretation of Article 7(2) of Regulation No 1215/2012, referred to in paragraph 50 of the present judgment, according to which that provision confers directly and immediately both international and territorial jurisdiction, the referring court asks which one or more of those courts with international jurisdiction would have territorial jurisdiction to hear that dispute. …

60. In the present case, it should be noted, first, that those connecting criteria cannot apply mutatis mutandis in the event, such as that at issue in the main proceedings, of the purchase of digital products, on an online platform, by an indefinite number of natural and/or legal persons who were unidentified at the time when the action was brought.

61. The difficulties in applying those connecting factors therefore require them to be adapted in order to preserve the effectiveness of Article 7(2) of Regulation No 1215/2012 and to contribute to the sound administration of justice.  …

64. As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

65. That group must be determined in a sufficiently precise manner to enable interested persons to express their position on the outcome of the proceedings concerned and, where applicable, to receive compensation. In that regard, the Netherlands Government stated, at the hearing, that the outcome of a representative action for the defence of the collective interests of unidentified but identifiable persons is binding on the persons established in the Netherlands who belong to that group and who have not expressed their intention to refrain from participating in those proceedings.

66. In such circumstances, a court cannot be required, for the purpose of determining its territorial jurisdiction to hear such an action, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually at the time when that court ascertains whether it has jurisdiction; nor can it be required to identify one or some of those victims. …

68. It follows from the foregoing that, in situations such as those at issue in the main proceedings, any court having substantive jurisdiction to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users will have international and territorial jurisdiction, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to hear that action in its entirety.

According to the GC, the new criterion (establishing jurisdiction) is consistent with the objectives pursued by Regulation No 1215/2012. It corresponds to “proximity”, as the damage resulted from the anticompetitive conduct throughout the whole country; and it is considered as predictable given that the defendant targeted the whole country. Finally, its permits a sound administration of justice due to the complexity of cartel damage cases (paras 70 – 74).

Assessment

If one examines the judgment’s arguments which practically overrule a standing caselaw of almost 50 years, there is not much substance to be found: The GC primarily refers to effectiveness and to the sound administration of justice (para 61). This starting point permits the Court to depart from the wording of Article 7(2) JR (“place of the damage”) and to replace it by the new criterion based on the associations’ own “right to represent and defend the interests of strictly defined group” (para 64). And the Court continues by saying: “In such circumstances, a court cannot be required … to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually.” No additional legal argument is provided to explain why a deviation from the clear wording of the Regulation is permissible. Here, I cannot refrain from wondering: Is this still an interpretation of a legal provision or does this (thin) line of reasoning amount to judicial law making?

In addition, the reader gets the impression that this deviation from the wording of Article 7(2) JR and from a constant jurisprudence of Court has no genuine foundation in the jurisprudence – in the operative paragraphs of the judgment, no supporting case law is quoted at all. And some of the few citations are even misleading. What remains are the basic arguments of “effectiveness” and “sound administration of justice.” However, these arguments should be used primarily by the legislator when establishing a new head of jurisdiction.

I would like to clarify here that I do not criticize the outcome of the proceedings as such, but primarily the manner in which the new head of jurisdiction has been justified, which I consider insufficient. It appears obvious that the driving idea behind the decision is the intent of the GC to facilitate collective redress in the constellation at hand by adapting the heads of jurisdiction under the Brussels Ibis Regulation to the (perceived) special needs of collective actions. This objective immediately triggers the question whether other heads of special jurisdiction should also be adapted to the (perceived) needs of collective litigation, in particular Article 7(1) JR.

An additional, more fundamental question raised by the decision concerns the internal balance of the Regulation: Until now, jurisdiction at the plaintiff’s domicile has been the exception, not the basic rule of the Brussels regime. Deviations from the basic rule are justified by specific protective needs of weaker parties. These needs are not visible here (even if the Court refers to the Appel users as “victims”); the GC facilitates private enforcement instead. It goes without saying that these aspects cannot be resolved in a judgment but must be discussed addressed through the legislative process.

There are further consequences of the judgment that need to be discussed: The new interpretation of Article 7(2) JR allows the organizer of a collective action to shop into his preferred local court, by a tailored description of a group of represented “victims”. In larger Member States such as Spain, Poland or Germany, where geographic distances are significant and court specialization varies, this reinterpretation may have considerable consequences. In this regard, the judgment amounts to an invitation to domestic forum shopping.

Finally, the judgment favours those EU Member States that do no longer require a specific designation of represented individuals in collective actions like the Netherlands (Article 3:305a of the BW) and Germany (Section 4 Verbraucherrechte-Durchsetzungsgesetz). By contrast, some Member States, like Austria, adhere to this criterion (Section 624 ZPO). The judgment does not assess the differences in the implementation of the Collective Actions Directive. Consequently, it will certainly intensify legislative competition among the Member States in this field and ultimately constrain legislative freedom of Member States in procedural law.

Final Remark

Is the Court of Justice beginning a new line of interpretation of the Brussels I bis Regulation? We will find the answer only in its future case-law. However, there are some signs of a broader approach in the judgment. The most telling one is found in the operative part which expressly uses the term “qualified entity”. This notion is a central element of the Collective Action Directive (1828/2020/EU) and describes the standing of associations to bring a collective action. In the case at hand, however, the use of this term appears misleading: the Dutch Foundations do not operate as “qualified entities” under the Collective Actions Directive. This indirect reference to non-applicable EU-instruments might be read as a sign of the willingness of the Court to further develop its case-law favouring collective redress in the context of the Brussels regime. It will certainly trigger additional preliminary references on the interpretation of the Brussels I bis Regulation.

Finally, the basic criticism remains: At the time when the ongoing recast of the Brussels I bis Regulation is being initiated and issues of collective redress are expected to be discussed, the Grand Chamber appears to pre-empt the work of the EU legislator. In case C-498/16, Schrems II, AG Bobek told the Court that creating a special regime within the Brussel I bis framework for collective redress was a matter for the EU legislator, and the Court followed that opinion. Now, the Grand Chamber effectively assumes competence to reshape the Regulation. It remains to be seen whether the EU lawmaker will endorse the Court’s case-law in the upcoming recast. A more balanced solution is still needed.

Since 2023, the Unified Patent Court (UPC) has served as a supranational patent litigation forum for 18 EU member states. On 3 October 2025 the UPC Court of Appeal delivered its first final judgment, in a dispute between Philips and Belkin concerning alleged infringement of a patent relating to wireless charging technology.

Although the UPC primarily applies the Agreement on the Unified Patent Court (UPCA), which constitutes a uniform set of rules for all contracting states, the judgment is also noteworthy also from a private international law perspective.

Specifically, there are two aspects of the judgment that are interesting from a private international law perspective. First, the court explicitly relied on the Brussels I bis Regulation to assess the res judicata effect of a prior German judgment to the dispute. Second, the UPC’s approach to filling gaps in the UPCA through uniform interpretation raises broader questions about the relationship between the UPCA and differing substantive law regimes of the member states, particularly in areas such as company law and employment law, as well as its interaction with EU choice-of-law instruments.

Summary

Philips initiated proceedings in Munich Local Division (Court of first instance of the UPC) for alleged patent infringement under the UPCA against Belkin and its managing directors. The court of first instance held that the managers were partly liable, but all parties involved appealed the decision to the UPC Court of Appeal.

Overturning the court of first instance’s judgment, the Court of Appeal found the managing directors not liable for patent infringement. Still, the Court of Appeal held that managing directors can be held liable on grounds of the UPCA. This obiter dictum conclusion seems to be reached regardless of the law applicable to the managing director’s employment contract or to the law applicable to the company which he or she directs.

Res judicata Effect of a Judgment from an EU Member State

In 2019, Philips had filed a lawsuit against Belkin for issues related to the patent in question for the UPC. That lawsuit was filed in a national German court that held that Belkin was not infringing Philip’s patent. For the UPC, Belkin argued that not only the operative part of the German judgment (i.e. the conclusions) should be binding under Article 36 of the Brussels I bis Regulation, but that also the arguments leading the court there should have res judicata effect for the UPC. Article 36 prescribes that a judgment from a member state shall be recognised in all other EU member states. Belkin’s procedural argument put this recognition mechanism in Brussels I to the test in a new context. First, it is not immediately apparent how the Brussels I bis Regulation is to work in relation to the UPC. Second, the issue of how to determine the res judicata effect of a foreign decision is also not self-evident. Shall it follow the law in the country where the decision was rendered, the country where it is to be recognised or shall it be autonomously determined?

As regards the application of the Brussels I bis Regulation in relation to the UPC, it can first be noted that the UPC works as a national court for the 18 contracting EU Member States. Hence, Chapter VI of the UPCA dealing with issues of international jurisdiction explicitly refers to the Brussels I bis Regulation and the 2007 Lugano Convention for determining the court’s international jurisdiction (Article 31 UPCA). Also, it follows from Article 34 of the UPCA that a UPC decision has legal effect in all contracting states where the European patent is valid. In other words, there is no need to recognise and enforce a UPC judgment in a UPCA contracting state.

In the present case, the recognition issue arose in the opposite direction from what is governed in Article 34 of the UPCA. A judgment from a UPCA contracting state (Germany) was to be recognised by the UPC. A somewhat peculiar circumstance is that the seat of the UPC is also located in Germany. Despite that both courts are located in Germany, the relation between the courts must go the way over EU private international law.

Being a (supra-)national court for the 18 contracting member states, one can regard the UPCA system as a separate jurisdiction in this manner. Even though the claimant’s option to initiate patent proceedings before the national courts in a UPCA contracting state is only available during a transition period, that period is lengthy. Similar situations may therefore arise for a considerable time. Moreover, the same issue of recognition will become relevant for judgments from EU Member States that are not contracting parties to the UPCA as well as in relation to the Lugano Convention States.

As regards how to determine the res judicata effect of a foreign decision, Belkin had argued that it follows from Gothaer Allgemeine Versicherung, C-456/11, EU:C:2012:719, that the recognition mechanism requires that not only the conclusion of a decision, but also the grounds for it shall be recognized. Here, the UPC made the remark that Gothaer Allgemeine Versicherung concerned the special situation when a foreign court has decided on the validity of a forum selection clause. Such a clause cannot be contested in more than one other country than the country chosen in the forum selection clause.

Instead, for determining the res judicata effect of a decision, the Brussels I bis Regulation relies on a conflict of laws inspired solution favouring the law in the country where the judgment was rendered. This idea was presented already in the 1979 Jenard Report and was last confirmed by the CJEU in BNP Paribas, C-567/21, EU:C:2023:452 (reported for this blog here). With references to the two judgments above, the UPC held in its judgment that the res judicata effect of the German judgment should be governed by German law.

Analyzing German civil procedural law the UPC held that only the operative part of the judgment is legally binding and has res judicata effect. Hence, Belkin’s res judicata argument had only effect for the German patents and for those companies in the dispute that had also been parties in the German national procedure.

UPC’s Method of Filling Gaps

Apart from the obvious EU private international law aspect of the UPC’s judgment in its application of the Brussels I bis Regulation, also the substantive law interpretation methodology in the judgment deserves some attention. As was mentioned above the UPC found that a managing director may be held liable for patent infringements that he or she ought to have had knowledge of, even if no such liability was imposed in the case at hand. Here, it is noticeable that the UPCA contains no explicit rules for holding a managing director or an employee liable. Nor has this been harmonized in the EU or among the contracting UPCA states. Given the substantive law diversity among the different states, one could think that issues not explicitly covered by the UPCA would be subject to private international law considerations.

That private international law should play a role in disputes for the UPC follows from Article 24 of the UPCA. This Article first sets out the sources of law on which the UPC shall base its decisions (EU law, the Agreement itself, international patent conventions and national law). Although national law appears at the bottom of the list, Article 24(2) expressly instructs the Court to determine the applicable national law through private international law rules.

Albeit, the explicit reference to private international law and the role for substantive national law, the UPC does not bother to take such a detour over conflict of law rules. Instead, the Court cuts straight to the chase and creates an autonomous personal liability mechanism in paragraphs 189–200 of the judgment.

Even if the court does not apply private international law rules, substantive national law plays a significant role in the creation of the personal liability mechanism for managing directors. With inspiration from German, Dutch and French case law, the UPC holds that personal liability for a managing director must be a possibility also under the UPCA.

Undeniably, taking the hard harmonization path that the UPC does has its advantages. Not least for the efficiency of the UPCA. Still, such a hard harmonization does not really take into consideration the various substantive law solutions for company law liability and employment law that managing directors probably try to comply with.

If one glances at how the issue would have been resolved under the Rome II Regulation containing rules on the law applicable for non-contractual obligations, there is the conflict of law rule for intellectual property rights in article 8 pointing out the law in the country where protection is sought. If one can count the UPCA regime as a “country” that would certainly speak in favour of the UPC’s conclusions and methodology for filling gaps. Also, it follows from Article 15 of the Rome II Regulation that “the determination of persons who may be held liable for acts performed by them” is an issue subject to the scope of the law applicable. However, it is a fact that substantive law in the EU differs when it comes to these issues. Also, when it comes to personal liability for directors of a company, the company law exception in Article 1 p. 2(d) of the Rome II Regulation could come into question.

In the pending CJEU case Wunner, C-77/24 the question whether personal liability is subject to the Rome II Regulation or out of its scope will probably be assessed. Just like in the UPC case, non-contractual liability for managing directors has been sought. In the opinion of advocate general Emiliou (Wunner), it is argued that such personal liability is not part of the exception, but part of the Rome II Regulation.

Comment

UPC’s first judgment makes it clear that the UPCA is a new creature in EU law. This is particularly shown in the UPC’s method for filling gaps. Unlike how gaps in EU regulation are filled with the applicable national law, UPC leaves little room for national substantive law differences. Also compared to most other substantive supranational legal frameworks like conventions, UPCA differs by having a uniform supreme court (the UPC). Still, future interactions between UPCA and private international law will quiet clearly arise regardless of the fact that the UPC seems not to resort to private international law without necessity.

Having reflected on the judgment, I cannot refrain from making a side remark about its language and formal structure. As for language, the judgment is in German. That in itself is not a problem. The problem is that no English translation has been made available, even though seven weeks have passed since the judgment was rendered. Today, it is safe to assume that anyone interested in EU law understands English, whereas the same cannot, whether one likes it or not, be said of German (or any other language). Notably, the UPC local courts in Germany, France and Italy allowed for the usage of English as late as when the UPC opened (see this press release of 1 June 2023). If the UPC wants to position itself  as a “player” in European law, it must improve its accessibility. The simplest way of doing so is to make sure that all precedent judgments are available in English. Preferably on the same day as the judgment is issued in its original language.

Another point relating to accessibility and readability is that the UPC has chosen an internationally unusual method of structuring its judgment. Instead of building arguments from the bottom up (like the Court of Justice of the EU and the European Court of Human Rights do), the UPC starts with its conclusions and explain them backwards. This method probably has advantages, but it makes the line of reasoning difficult to follow, at least in my view.

The Court’s activities are suspended during the so-called semaine blanche, i.e., between 3 and 7 November 2025. The first event related to private international law is the hearing that is set to take place on 12 November in case C-14/25, Thüringer Aufbaubank. The Oberster Gerichtshof (Austria) is requesting the interpretation of Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims on the in the context of the enforcement in Austria of a claim on the basis of a German notarial deed:

Is Article 21(2) in conjunction with Article 25 of Regulation (EC) No 805/2004 … to be interpreted as meaning that certification of an enforceable authentic instrument (in this case, an enforceable notarial instrument drawn up by a German notary) as a European Enforcement Order, issued by the competent authority in the Member State of origin using the standard form in Annex III to that regulation, may not be reviewed in the Member State of enforcement even where – having regard to the date on which the authentic instrument was drawn up – the temporal scope of that regulation has manifestly not been respected?

The facts can be summarized as follows. On 14 February 2022, Thüringer Aufbaubank filed an application with the Judenburg District Court (District Court of Judenburg, Austria) for enforcement against LN of a claim of EUR 25,000, plus interest, on the basis of a notarial deed drawn up in Germany on 28 May 1999, which became enforceable on 1 June 1999. In support of its application, Thüringer Aufbaubank produced the notarial deed and a European Enforcement Order certificate issued, without objection, on 19 January 2021 by the competent German authorities, using the form set out in Annex III to Regulation No 805/2004.

The Bezirksgericht Judenburg dismissed the objection raised by LN and granted the application for enforcement under the simplified procedure provided for in Article 54b of the EO.

The Landesgericht Leoben (Regional Court, Leoben, Austria) reversed that decision and ordered that enforcement be suspended and the acts already performed be annulled. That court considered that the notarial deed drawn up in 1999 did not fall within the scope ratione temporis of Regulation No 805/2004, which applies only to enforceable titles issued on or after 21 January 2005. By way of consequence, the recognition and enforcement in Austria of the notarial deed drawn up in Germany should be governed by the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Brussels on 27 September 1968 (OJ 1972 L 299, p. 32, hereinafter the ‘Brussels Convention’), which requires a prior exequatur procedure. The court considered as well that the issue of a European Enforcement Order certificate by the competent German authorities could not alter that conclusion, since it was still possible for the Member State of enforcement to verify that the certificate clearly complied with the scope of that regulation.

An appeal for review was lodged by Thüringer Aufbaubank before the Oberster Gerichtshof (Supreme Court, Austria), which is the referring court.

The case has been assigned to a chamber of three judges – N. Piçarra, N. Fenger, and O. Spineanu-Matei as reporting judge-. No opinion has been requested.

A second hearing is scheduled for Wednesday 19 November. The Juzgado de Primera Instancia no 1 of Fuenlabrada (Spain) asks the Court to rule on the interpretation of the Montreal Convention of 1999 for the unification of certain rules for international carriage by air, approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001, as well as on Regulation (EC) No 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage, as amended by Regulation (EC) No 889/2002.

Must Article 3(1) of Regulation (EC) No 2027/97 be interpreted as meaning that the liability of a Community air carrier in respect of the carriage of passengers and their baggage is also to be governed by Article 33 of the Montreal Convention in the case of carriage within a Member State of the European Union?

May Article 33(1) of the Montreal Convention be interpreted as meaning that the place where the carrier has a place of business through which the air transport contract has been entered into could be the principal and permanent residence of the passenger, if the contract was entered into online?

Must Article 33(1) of the Montreal Convention be interpreted as meaning that the place where the carrier has a place of business through which the contract has been entered into refers to the place in which the principal obligation of carriage by air was contracted for and not the place in which the ancillary service, from which the carrier’s liability arises, was contracted for, if the latter place differs from the former?

As to the facts of the case, it is worth mentioning that claimant in the main proceedings entered into an air transport contract with Vueling, an air carrier having its registered office in Viladecans (Barcelona), for a flight from Madrid airport to Barcelona airport, on 8 November 2023. The baggage was lost during that first leg of her journey. Because the applicant has not provided documentation, nor added any other information, regarding the contract for the second flight, from Barcelona to Rome (or regarding the return flights to Madrid), the referring court assumes that there was no ‘international carriage’, within the meaning of Article 1 of the Montreal Convention, and that the relevant carriage is national. By way of consequence, the Court of Justice is being asked to decide on the rules applicable to venue, i.e., to the distribution of local jurisdiction within a Member State (compare to C-213/18, Guaitoli, where the national court sought to ascertain whether Article 33, paragraph 1 of the Montreal Convention must be interpreted as governing not only the allocation of jurisdiction as between the States Parties to the convention, but also the allocation of territorial jurisdiction as between the courts of each of those States). An obvious question of legislative competence arises there.

The case has been assigned to a chamber of five judges (C. Lycourgos, O. Spineanu-Matei, S. Rodin, N. Piçarra and N. Fenger – reporting), with an opinion by advocate general D. Spielmann.

A third hearing concerning a private international law instrument will be held on 20 November. The referring court – the Obvodní soud pro Prahu 1 (District Court for Prague 1, Czech Republic) – has referred three questions on Regulation No 650/2012 on matters of succession in case C-98/24, Koda:

Must the provisions of Article 83(3) and (4) of Regulation No 650/2012, in conjunction with Article 3(1)(d) of Regulation No 650/2012, be interpreted as meaning that the term disposition of property upon death includes a declaration of disinheritance?

If the first question is answered in the affirmative, must Article 83(4) of Regulation No 650/2012 be interpreted as meaning that if, before 17 August 2015, the testator made several dispositions of property upon death that were in accordance with the law that the testator could have chosen in accordance with Regulation No. 650/2012, is the law deemed to have been chosen as the law applicable to the succession that law under which the testator last made a disposition upon death before 17 August 2015?

Must Article 26(2) of Regulation No 650/2012 be interpreted as meaning that, if the testator’s capacity to make a disposition was restricted due to the making of a disposition of property upon death before 17 August 2015 under the law that governed his or her succession as a whole, and if a subsequent change of that law has resulted in changes to the conditions for the exercise of his or her capacity to make a disposition, the testator’s capacity to make a disposition continues to be restricted in accordance with the law that would have been applicable to that testator’s succession if he or she had died on the day on which the agreement as to succession was concluded, regardless of the fact that, according to the law governing his or her succession as a whole at the time of death, the testator was entitled to terminate (revoke or modify) that agreement as to succession?

In the case at hand, the testator, L.K., had Czech and German nationality. He died on 24 August 2022 and was residing in the Czech Republic at the time. L.K. was married to E.K., who died on 9 January 2007.  They had two daughters, E.D. and N.K., as well as three grandchildren, who are the children of N.K. On 2 November 1999, L.K. and E.K. drew up a joint will (a “Berliner Testament”) in the Federal Republic of Germany, in accordance with the German Civil Code, which they partially amended on 8 February 2001 by means of a joint declaration.

After L.K.’s death, it emerged that he had left two authentic instruments relating to his estate. The first one is a declaration of disinheritance dated 23 June 2015, by which he disinherited his two daughters and their descendants. The second is a will dated 20 December 2017, in which he chooses Czech law as the law applicable to the succession, and appoints L.P. as sole heir.

The referring court states that, according to N.K. and her children, it is apparent from the joint will drawn up in 1999 that L.K. and E.K. intended to limit their freedom to make a will in the event of the death of one of them. Thus, in such a case, the survivor could only change the circle of his heirs by designating as such certain persons mentioned in the joint will and could therefore only choose between his daughters, E.D. and N.K., and their children.

On 18 January 2023, the Obvodní soud pro Prahu 1, represented by a notary acting as judicial commissioner, issued an order stating that the law governing the entire succession was Czech law, pursuant to Article 22(1) of Regulation No 650/2012. It also terminated N.K.’s status as a party to the succession proceedings and decided to continue the proceedings with L.P. only.

N.K. and her children appealed against that decision to the Městský soud v Praze (Municipal Court, Prague, Czech Republic). By decision of 10 July 2023, that court upheld the order of 18 January 2023 in so far as it had terminated N.K.’s status as a party to the proceedings. It set aside the remainder of the decision, stating that the testator’s capacity to amend or revoke the part of the joint will in which he had designated his grandchildren as his heirs was governed by German law and not by Czech law. The appeal court therefore referred the case back to the the Obvodní soud pro Prahu 1 instructing it to determine the content of German law, while specifying that only after such a step had been taken could the dispute over inheritance law between L.P. and the children of N.K. be resolved.

The hearing will probably focus on the competence of the Czech notary to raise preliminary questions. At its end, advocate general M. Campos Sánchez-Bordona Will announce the date of delivery of his opinion. The chamber is composed by judges I. Jarukaitis, M. Condinanzi, R. Frendo, A. Kornezov and N. Jääskinen (reporting).

Finally, on Thursday 27th the Court will deliver its decision in case C-643/24, Manuel Costa Filhos. Here, the Supremo Tribunal de Justiça (Supreme Court of Justice, Portugal) has referred three questions to the Court for a preliminary ruling concerning the interpretation of Regulation No 1393/2007 on the service od documents (no longer in force) and Regulation No 805/2004 creating a European Enforcement Order for uncontested claims:

In the event that, from a procedural perspective, the failure to send the standard form set out in Annex II to Regulation (EC) No 1393/2007 … cannot be rectified, on account of the declaratory proceedings having already given rise to a final judgment ordering payment, does Article 8(1) of that regulation, taking into account the right to a defence of the addressee of that document in accordance with the requirements of a fair trial, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and in Article 6(1) of the [European Convention on Human Rights] preclude national legislation which considers service effected by registered letter with an acknowledgement of receipt to be invalid when it was not accompanied by the standard form set out in Annex II to that regulation?

Must Article 20(1) of Regulation (EC) No 805/2004 …, which provides that ‘a judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement’, be interpreted as meaning that the judgment debtor may oppose enforcement based on a European Enforcement Order relying on the same grounds on which he or she could rely in the case of enforcement based on a judgment handed down in the Member State of enforcement, in particular on the ground that he or she did not participate in the declaratory proceedings and that the service, effected by registered letter with an acknowledgement of receipt, was invalid because it was not accompanied by the standard form set out in Annex II to Regulation [No 1393/2007]?

In view of the objectives which led to the creation of the European Enforcement Order (Article 1 of Regulation No 805/2004) and of the minimum requirements for the service of documents applicable to the proceedings in which the judgment certified as a European Enforcement Order was handed down (Articles 13 and 14 of that regulation), which, according to recital 14 of that regulation, are characterised by either full certainty (Article 13) or a very high degree of likelihood (Article 14) that the document served had reached its addressee, does Regulation No 805/2004 preclude national legislation, such as that contained in Article 729(d), read in conjunction with Article 696[(e)(i)], of the [Código de Processo Civil (Code of Civil Procedure)], according to which the judgment debtor may oppose the enforcement on the ground that he or she did not participate in the declaratory proceedings and that the service, effected by registered letter with an acknowledgement of receipt, was invalid because it was not accompanied by the standard form set out in Annex II to Regulation No 139[3]/2007?

The questions were raised in proceedings between a company incorporated under Portuguese law, Manuel Costa & Filhos, Lda (hereinafter “Manuel Costa”) and a company incorporated under Estonian law, OÜ Wine Port of Paldiski (hereinafter “Wine Port”), concerning the enforcement in Portugal of a judgment delivered and certified as a European Enforcement Order in Estonia.

Wine Port had brought an action for payment against Manuel Costa before an Estonian court. The document instituting the proceedings and other documents in the proceedings were served on Manuel Costa by registered letter with acknowledgement of receipt. No translation into Portuguese was provided; the service was not accompanied by the standard form set out in Annex II to Regulation No 1393/2007 informing the latter company of its right to refuse to accept those documents.

Manuel Costa signed the acknowledgement of receipt, but did not take a position on the documents served and did not intervene in the proceedings before the Estonian court. In those circumstances, by a judgment served on Manuel Costa on 20 April 2022, the Estonian court ordered that company to pay the sum of EUR 41 831.47 to Wine Port.

On 22 June 2022, Manuel Costa was notified by registered letter that the judgment had become enforceable. The judgment was certified as a European Enforcement Order in accordance with Regulation No 805/2004. Wine Port brought enforcement proceedings against Manuel Costa before the Portuguese courts.

Manuel Costa raised an objection on the grounds that the service of the document instituting proceedings before the Estonian court was invalid in the absence of the standard form set out in Annex II to Regulation No 1393/2007. On this basis, the court of first instance ordered the suspension of enforcement. That decision was overturned on appeal.

Following an appeal lodged by Manuel Costa, the case came before Supremo Tribunal de Justiça.  This court states that, under Portuguese law, service of a document carried out without the standard form set out in Annex II to Regulation No 1393/2007 is null and void and that that nullity, together with the fact that the party against whom service was sought did not intervene in the proceedings on the substance in which the nullity was established, means that the judgment cannot be enforced. The Supremo Tribunal de Justiça further states that, according to the Court of Justice judgments C‑519/13, Alpha Bank Cyprus and C-354/15, Henderson, and the order in case C-346/21, ING Luxembourg, the absence of the standard form does not render the service invalid but merely gives rise to an obligation to regularise it. However, in those cases, the absence of the form was raised during the proceedings on the merits, that is to say, at a time when it was still possible to regularise said absence. In the case at hand that omission is relied on at a time when the main proceedings have come to an end, during the enforcement of the judgment delivered at the end of those proceedings.

The case has been assigned to the same chamber as C-14/25, Thüringer Aufbaubank, which will decide without an AG’s opinion.

— Update to the post of October 2025 at the Court of Justice: on 30 October 2025, the Court delivered its judgment in case C-398/24, Pome, not preceded by an opinion or a hearing. The ruling is concerned with the interpretation of Article 25, on choice of court agreements, of the Brussels I bis Regulation. A summary of the facts and the decision can be found at Geert van Calster’s blog.

In Cabris Investments, a case decided on 9 October 2025, the Court of Justice ruled on the interpretation of Article 25 of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments (Brussels I bis).

Article 25 is concerned with choice-of-court agreements. It applies where the parties to a dispute, “regardless of their domicile”, have agreed to confer jurisdiction on “a court or the courts of a Member State”. If the agreement complies with the formal requirements set out in Article 25, then the court or courts chosen “have jurisdiction”. Such jurisdiction is “exclusive unless the parties have agreed otherwise”.

The Facts of the Case and the Questions Referred to the Court of Justice

On 6 May 2020, a consultancy contract was concluded between two companies established in the UK. The agreement featured a clause whereby the Commercial Court in Vienna was to have jurisdiction over any disputes arising out of or in connection with the contract. In 2023, one of the two companies sued the other in Vienna alleging that the latter had failed to fulfill its obligations under the contract.

The defendant challenged the jurisdiction of the Commercial Court, arguing that Article 25 of the Brussels I bis Regulation did not apply, given that, as a result of Brexit, the UK ceased to be bound by EU law on 31 December 2020, when the transition period contemplated in the Agreement concerning the withdrawal of the UK from the EU came to an end. In the opinion of the defendant, this made the choice-of-court clause inoperative.

The Commercial Court had doubts about the applicability of Article 25 of the Brussels I bis Regulation and sought clarification from the Court of Justice, noting  that Recital 13 of the Regulation provides that “[t]here must be a connection between proceedings to which this Regulation applies and the territory of the Member States”, and that, according to Recital 14, “[a] defendant not domiciled in a Member State should in general be subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised”.

The Court’s Ruling

The Court held in Cabris Investments that Article 25 of the Brussels I bis Regulation covers a situation in which two parties to a contract domiciled in the UK agree, during the transition period, on the jurisdiction of a court of a Member State to settle disputes arising from that contract, even where that court is then seised after the end of the said period.

The Court decided that the case would be determined without a submission from the Advocate General. As stated in Article 20 of the Statute, the Court may do so where it considers that the case “raises no new point of law” (doubts on the appropriateness of this choice have been expressed by Michael Wilderspin in a comment to a report on the ruling by Geert van Calster on LinkedIn).

On the merits, the reasoning of the Court revolves around four main findings.

First, a choice of court agreement has no legal effect for so long as no judicial proceedings have been commenced. The applicability and effects of such an agreement must accordingly be assessed as at the date on which the legal proceedings are brought, and from the standpoint of the court seised.

Second, the fact that Article 25 of the Brussels I bis Regulation applies “regardless of the domicile of the parties” indicates that the rule that it lays down is not subject to any condition relating to the domicile of the parties, or of one of them, in the territory of a Member State. In this respect, Article 25 differs from Article 23 of Regulation No 44/2001 (the Brussels I Regulation), which, for its part, required, for the application of the rule of jurisdiction based on an agreement conferring jurisdiction, that at least one of the parties to that agreement be domiciled in a Member State.

Third, the system of jurisdiction established by the Brussels I bis Regulation is internal to the EU and pursues EU-specific objectives, such as the proper functioning of the internal market and the establishment of an area of freedom, security and justice. Respect for the autonomy of the parties, as stated in Recital 14, is among the concerns which the Regulation seeks to address. Thus, unlike the rule laid down in Article 4, according to which jurisdiction lies generally with the courts of the Member State where the defendant is domiciled, Article 6(1) of that regulation provides that, if the defendant is not domiciled in a Member State, jurisdiction is, in each Member State, to be determined by the law of that Member State. Reliance on domestic rules, however, is explicitly made subject to the application of certain provisions of the Regulation itself, including Article 25 thereof. Consequently, a situation in which the defendant is not domiciled in a Member State, but the contractual parties have agreed that a court or courts of a Member State are to have jurisdiction to settle their contractual disputes, falls under Article 25, and the rules of jurisdiction of the law of the forum have no role to play.

Fourth, while it is true that a situation must have an international element to come within the scope of the Brussels I bis Regulation, the Court of Justice has already asserted (notably in Owusu) on various occasions that the latter requirement is met where the case is exclusively connected with a State outside the EU. In addition, as clarified in Inkreal, a situation in which the parties to a contract, who are established in the same Member State, agree on the jurisdiction of the courts of another Member State, has an international element, even if that contract has no further connection to the other Member State. By analogy, the Court added, the existence of an agreement conferring jurisdiction on the courts of a Member State, even though the contracting parties are domiciled in a third State, raises a question relating to the determination of the international jurisdiction of the courts and that such a situation therefore has the necessary international element.

The applicability of Article 25 in the case at issue, the Court finally observed, is consistent both with the objectives pursued by the latter provision, namely to respect the autonomy of the parties and to enhance the effectiveness of exclusive choice-of-court agreements, and with the broader objective of the Brussels I bis Regulation to improve legal certainty. The proposed reading contributes to preventing, in the Member States, the conflicts of jurisdiction that could arise if the situation were governed by the national rules of private international law of the Member States. Concurrently, it minimises the possibility of concurrent proceedings and averts the risk of irreconcilable judgments.

A Rather Plain Ruling, in the End

The conclusion reached by the Court of Justice in Cabris Investments is persuasive.

Choice of court agreements display a dual nature. They are essentially designed to produce procedural effects, but are normally embodied in contracts the purpose of which is to shape the parties’ substantive relationship.

Admittedly, situations exists where such a duality is a source of uncertainties. However, this is not necessarily the case in circumstances such as those at the origin of the Court’s ruling.

Basically, the issue was whether the Commercial Court in Vienna was bound, in the assessment of its jurisdiction, by the rule laid down in Article 25. This is a procedural question, which the Commercial Court had no option but to approach from the standpoint of the rules applicable in Austria at the time when the question arose, that is, in 2023, when the Commercial Court itself was seised of the proceedings. The applicable rules were the rules of the Brussels I bis Regulation, including, specifically, Article 25, as the conditions of applicability set out therein were all met in the circumstances.

Indeed, the Brussels I bis Regulation had then ceased to be effective in the UK. But this has implications for the UK (according to Article 67 of the Withdrawal Agreement, the Regulation’s rules on jurisdiction apply in the UK to proceedings instituted before the end of the transition period), not for Austria. This means that despite Brexit, the choice of an Austrian court, where it complies with Article 25, produces the two effects that a choice of court is meant to bring about: it confers jurisdiction on the chosen Austrian court and, unless the parties agreed otherwise, prevents the courts in the other EU Member States from asserting their jurisdiction over the case.

All in all, Cabris Investments confirms that the applicability of the Brussels I regime does not depend, as such, on the domicile of the defendant being in a Member State of the EU. The Court had already made clear in the Lugano Opinion that the application of the domestic rules of the individual Member States to proceedings brought against non-EU domiciliaries occurs within the framework of the jurisdictional system of the Brussels I regime itself, thereby indicating that the latter proceedings do not fall outside that regime: through the rule now enshrined in Article 6(1) of the Regulation, the Brussels I regime “resolves [the issue of jurisdiction arising from the said proceedings] by reference to the legislation of the Member State before whose court the matter is brought” (para 148).

The rules of the Regulation whose operation is left untouched by Article 6(1), such as Article 24 (on exclusive jurisdiction) and Article 25, both of which apply “regardless of the domicile of the parties” cannot be labelled as “exceptional”. The fact that they apply irrespective of whether the domicile of the defendant is in a Member State of the EU, or not, does not amount to a departure from a basic rule, for the simple reason that the Brussels I regime, when it comes to the applicability of its jurisdiction-conferring rules, does not generally distinguish between EU and non-EU defendants.

All proceedings, whether brought against EU or non-EU defendants, are subject in Member States to the Brussels I regime, provided  they come with the latter’s material and temporal scope. The domicile of the defendant may rather have an impact on the way in which the issue of jurisdiction is to be dealt: while some provisions apply regardless of the domicile of the defendants (or the parties to the proceedings), such as Articles 24 and 25, others apply only in litigation against EU domiciliaries (Articles 4, 7, 8, etc.), and others still (Article 6, with its referral to domestic rules) are only at play where the case is brought against a non-EU defendant.

What Role, if Any, for the Hague Choice of Court Convention in the Circumstances?

In an interesting post published a few days ago on Conflictoflaws, Salih Okur expresses surprise at the fact that, in Cabris Investments, the Court of Justice failed to assess the applicability of the Hague Convention of 30 June 2005 on exclusive choice of court agreements, which is in force for both the UK and the EU.

Article 216(2) of the TFEU entails that the Convention takes precedence over the Brussels I bis Regulation in cases falling within the scope of both texts. The Convention, however, comes with a disconnection clause in Article 26(6)(a) whereby, put shortly, the Regulation prevails over the Convention, in the Member States of the EU, where none of the parties is resident in a Contracting State that is not also a Member State of the EU. Since the proceedings before the Commercial Court in Vienna concerned two UK companies, the Convention, had it been applicable to the case, would have ultimately enjoyed priority over the Regulation.

Incidentally, I am assuming here that the relevant point time to determine whether a Contracting State is also a Member State of the EU should be the moment when the proceedings were instituted, not the moment when the agreement was made: note that, in the circumstances, the choice-of-court agreement was made when the UK was bound by EU law, including the international  conventions in force for the EU, whereas the lawsuit in Vienna commenced when the UK was bound by the Hague Convention by virtue of the instrument of accession it deposited on 28 September 2020. The matter cannot be further discussed here.

That said, Salih Okur observes in his post that the case did not fall within the scope of application of the Hague Convention, for it failed to meet the requirement of internationality set out by the Convention. In fact, the latter instrument only applies to “international cases” which, for the purposes of jurisdiction, means, according to Article 1(2), all cases “unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State”.

This is a fair point, although, to be precise, the Court of Justice contented itself with noting that, in the circumstances, aside from the jurisdiction clause, there was “no apparent link between the parties to the main proceedings and the Republic of Austria” (emphasis added), without specifying whether all the other “elements relevant to the dispute” were also tied to the UK alone.

Had the case been international within the meaning of Article 1(2) of the Convention, the Commercial Court in Vienna would have been required to resort to the Convention, rather than the Regulation, to assess the validity and the effects of the jurisdictional clause. Arguably, the treatment of the clause would have then been largely the same as under the Brussels I bis Regulation. Both texts provide for the enforcement of choice-of-court agreements concluded in writing, where they purport to confer exclusive jurisdiction to settle a dispute over a commercial contract on a court, or the courts, of a State bound by such texts, as it was the case in the circumstances.

Whether Brexit “Revived” the 1968 Brussels Convention Remains Unanswered

In its order for referral the Commercial Court in Vienna asked the Court of Justice to clarify how the matter should be dealt if Article 25 of the Brussels I bis Regulation were to be considered inapplicable, including whether the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ought to be deemed applicable, “revived” as a result of Brexit. The positive answer provided by the Court of Justice to the question regarding the applicability of Article 25 made the issue moot.

It is hard to see on what grounds such a revival could be asserted under the applicable rules of the law of treaties. Be that as it may, those wishing to learn about the views of the Court of Justice on the matter have no option but to wait until another occasion arises.

Comment

The Danish judgment underscores the importance of interpreting international conventions and EU law consistently, ensuring that international rules prevail over conflicting national procedural norms. Challenges arise when national courts must “fill in the gaps” of an international instrument, as any supplementary rules must not undermine its purpose. In EU law, this principle is often referred to as the principle of effectiveness (“effet utile”).

The Swedish Supreme Court’s decision in NJA 2018 p. 957 illustrates the role of the principle of effectiveness in the context of a conflict between national procedural rules and EU jurisdiction rules. In applying the rule on tacit prorogation under Article 26 of the Brussels I bis Regulation (1215/2012), the Court rejected a direct application of Sweden’s procedural time limits, which would have extended the effect of tacit prorogation beyond the Regulation’s intended rationale. The Swedish Supreme Court’s approach mirrors that of the Danish case, emphasizing the need for caution when national procedures intersect with international and EU law.

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?

EU Member States may not confer the authority of res judicata on an arbitral award over a sports dispute linked to an economic activity within the territory of the Union, unless the consistency of that award with the principles and provisions of EU law which form part of EU public policy has first been subject to effective review by a court in the Member States concerned.

This was affirmed by the Grand Chamber of the Court of Justice of the European Union (CJEU) in its judgment of 1 August 2025 in Royal Football Club Seraing, C-600/23, EU:C:2025:617 (Seraing) regarding the enforcement in Belgium of an arbitral award issued by the Court of Arbitration for Sport (CAS) in Switzerland.

Background

In 2015, a Maltese financing company entered into an agreement with the Belgian football club RFC Seraing concerning third-party financing of football players. The financing agreements immediately caused legal dilemmas. On one hand, FIFA argued that the financing agreements violated FIFA’s regulations on player transfers. On the other, the Maltese company claimed that FIFA’s rules conflicted with EU law.

While FIFA’s disciplinary committee decided to sanction RFC Seraing by prohibiting the club from registering players for a specified period and imposing a fine of 150,000 Swiss francs, the Maltese company initiated court proceedings in Belgium seeking a declaration that FIFA’s player transfer rules were incompatible with the EU’s free movement provisions. RFC Seraing joined these proceedings as a co-claimant with the Maltese company.

The football club appealed the disciplinary committee’s decision to arbitral proceedings for the CAS in Switzerland, requesting its annulment on the grounds that it violated, among other things, EU law requirements on the free movement of workers and capital. CAS rejected the club’s claim, stating in its award that FIFA’s rules were justified by sporting reasons and could therefore legitimize any impact they had on free movement or other fundamental EU rights. RFC Seraing then attempted to have the CAS award annulled by the Swiss Federal Tribunal, but this was also unsuccessful.

After CAS issued its award, questions arose in the parallel Belgian court proceedings regarding how an arbitral award from a country outside the EU should be treated in relation to EU law principles of legal certainty. Under the United Nations Convention on the Recognition and Enforcmeent of Foreign Arbitral Awards (the New York Convention), arbitral awards from other contracting states must be enforced.

In Belgium, arbitral awards are granted the same legal effect as national court judgments. Since the Swiss award was issued during the ongoing proceedings, the Belgian appellate court considered itself obliged to recognize its res judicata effect without examining the substantive question of whether the player transfer rules complied with EU law.

The matter was appealed to Belgium’s Supreme Court, which decided to refer a question to the EU Court of Justice on the extent to which an arbitral award dealing with issues of EU law, but issued by an arbitration tribunal outside the EU, can be recognized as having legal effect within the EU.

Judgment

The Court of Justice initially noted that the right to effective judicial protection within the Union also applies to arbitration proceedings. In addition to setting general requirements for the nature of judicial review, the Court stated that a competent court must have the possibility to refer any question concerning the interpretation of EU law or the validity of an EU act to the Court of Justice under Article 267 TFEU. However, the Court emphasized that this requirement does not prevent individuals subject to EU law from agreeing that any disputes between them should be resolved through arbitration. The legal safeguards required in arbitration depend on whether the arbitration can be considered “voluntary” or “compulsory”.

Referring to the European Court of Human Rights’ ruling in Mutu and Pechstein v. Switzerland, the Court of Justice noted that parties may waive certain legal safeguards provided the arbitration is voluntary and the waiver is “free, lawful, and unequivocal”. The Court held that arbitration clauses entered into between sports federations, clubs, and players do not meet this standard, as the clauses are “unilaterally imposed” on the affected individuals, who have no real choice in participating in the activity (para. 92).

That arbitration clauses are compulsory does not mean they are prohibited. However, EU law imposes stricter requirements on such compulsory clauses compared to voluntary ones. EU law issues of fundamental importance adjudicated in compulsory arbitration must be reviewable by national courts. The Court concluded that such review requires the arbitration award to explain how EU law was interpreted. When, as in the present case, it is not possible to challenge an arbitration award in an EU Member State, equivalent requirements must be applied at the enforcement stage in an EU Member State. In this context, the Court noted that the New York Convention’s obligation to recognize and enforce international arbitration awards also allows contracting states to refuse recognition of an award that conflicts with that country’s ordre public.

Although the EU itself has not acceded to the New York Convention, all EU Member States have done so individually. As EU Member States, they are therefore obliged to refuse recognition or enforcement of foreign arbitral awards that conflict with the EU’s ordre public.

Comment

Seraing is a landmark case that will have influence and relevance for international arbitration. No matter where the arbitral tribunal has its seat, it must comply with the standards set out in the Seraing judgment if the arbitral award shall be recognised and enforced in an EU member state. In this aspect, the judgment builds on the longstanding international trend toward court-review of arbitral awards.

The trend toward court-review of arbitral awards gained prominence with the U.S. Supreme Court’s 1985 Mitsubishi Motors Corp. ruling, which established the “second-look doctrine.” The case addressed whether a Japanese arbitral award concerning U.S. antitrust matters could be recognized as a valid arbitral award in the United States. The Court held that a liberal approach to the validity of international arbitral awards could be balanced at the enforcement stage through the public policy exception. In practice, this gives U.S. courts the opportunity to take a “second look” at foreign awards instead of denying recognition outright simply because they might not meet strict validity requirements.

Under EU law, a similar concept exists through the principle of effectiveness, illustrated first by the Court of Justice’s decision in Eco Swiss, C-126/97, EU:C:1999:269. The Seraing case now clarifies and develops the principles for a “second look” to assure that EU law has been complied with that were set out in the Eco Swiss judgment.

As paragraphs 82 and following make clear, the “second look” requirement applies only to arbitral awards rendered outside the EU. Where the arbitral tribunal is seated within the EU, the ordinary procedure for challenging the award suffices to satisfy the requirement of judicial review by an EU court.

Another point that is worth highlighting is that the CJEU seems to take further steps on the path of distinguishing party autonomy blazed by the ECtHR in the Mutu and Pechstein case.

In Mutu and Pechstein, the ECtHR held that voluntary arbitration must be separated from compulsory arbitration. In that judgment, compulsory arbitration was not only such rare situations where mandatorily imposed by law, but depending on the balance of the agreement at hand. Whereas the ECHR has little to do with completely voluntary arbitration, it sets higher standards for compulsory arbitration. In the Mutu and Pechstein case, the ECtHR held that a professional athlete who wanted to compete on the global level had no choice but to sign the agreement containing the arbitration clause that exclusively referred all disputes to an arbitral tribunal. From parapraph 80 of Seraing, the Court of Justice draws parallels from this distinction in Mutu and Pechstein and seems to hold that this distinction is relevant also under EU law.

The judgment in Seraing underscores the importance of taking EU law seriously in arbitration. It not only opens new possibilities to parties in arbitration procedures, also it stresses the importance for arbitrators to draft awards that can withstand review. This development may also put pressure on national legislators to align arbitration laws more closely with EU law (see e.g., on this blog, the post Is a Swedish Arbitral Award Ever Final After Achmea?). A question that the Seraing judgment raises is whether Member States can allow for immediate recognition of foreign arbitral awards or whether EU law now requires that an exequatur procedure first is undertaken.

This aspect of the judgment will be further examined by Gilles Cuniberti in a forthcoming post on this blog. Stay tuned!

The Court of Justice will resume its public activity on 2 September 2025. The most relevant event regarding private international law this month is scheduled for Thursday 11th, when the opinion of AG Ćapeta in case C-196/24, Aucrinde, will be published. The hearing took place last April as reported here. In the case at hand, the tribunal judiciaire de Chambéry (France) requests the interpretation of the Recast Evidence Regulation for the first time since said regulation became fully applicable, asking in particular:

1) Does Article 12 of [the Recast Evidence Regulation] allow a national court to refuse to apply that regulation and to comply with the request from the requesting State, on the ground that the procedure specified in the request is contrary to fundamental principles of the national law of the requested State, and in particular Article 16-11 of the Civil Code?

2) If Article 12 of [the Recast Evidence Regulation] applies regardless of national law, how should Article 1 (right to dignity) and Article 7 (right to respect for private life) of the Charter of Fundamental Rights be interpreted and the links between them determined in order to establish whether or not such an application of the Regulation infringes the Charter of Fundamental Rights?

The reporting judge is T. von Danwitz. Not surprisingly, the case has been allocated to the Grand Chamber.

The publication of other opinions or decisions may be of interest for the readers of this blog even if they do not address directly PIL instruments. I would include under the category the opinion of AG J. Richard de la Tour in case C-43/24, Shipov, to be published on Thursday 4th. As already reported in the blog, the Varhoven kasatsionen sad (Supreme Court, Bulgaria) is trying to establish the consequences of the Court’s judgments in cases Coman and Pancharevo, asking whether

the obligation of the Member States of the European Union to recognise a person’s civil status as established in another Member State under the law of that State, which is recognised in the case-law of the European Court of Justice (in the judgments in Cases C 673/16 and C 490/20 in relation to the application of Directive 2004/38/EC 3 and Article 21(1) TFEU, also apply in relation to gender as an essential element of the civil status entry, and does a change of gender, established in another Member State, on the part of a person who also has Bulgarian nationality, require that fact to be recorded in the corresponding registers of the Republic of Bulgaria?

Those dealing with maritime transport and civil liability should be aware of the publication, also on Thursday 4th, of the opinion of AG R. Norkus in case C-629/24, Costa Crociere e.a., where the French Court of Cassation has referred the following questions to Luxembourg:

Must Article 2, Article 3(1) and the first paragraph of Article 7 of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents,  and Annex I thereto, be interpreted as governing the liability of a maritime carrier operating a cruise having the characteristics of a package holiday within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours? 

If the answer to the first question is in the affirmative, do those provisions of the Regulation govern the liability of that operator only where the personal injury relates to carriage by sea?

I would recommend as well to keep an eye on the decision of the Court, expected on Thursday 4 September, in C-203/24, Hakamp, where the main dispute concerns the determination of the social security legislation applicable to an employee resident in the Netherlands who performed activities, for an employer based in Liechtenstein, on a barge in Belgium, the Netherlands and Germany. As the Hoge Raad der Nederlanden put it itself, this request for a preliminary ruling raises the issue of how to determine whether an employee who is gainfully employed in two or more Member States can be deemed to perform a substantial part of his activities in the Member State of residence. The instruments at stake are Regulation (EC) No 883/2004 on the coordination of social security systems (the ‘Basic Regulation), and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (the ‘Implementing Regulation’). The questions read:

What circumstances or types of circumstances are appropriate for assessing on the basis of Article 14(8) of the Implementing Regulation the question whether a person who normally pursues an activity as an employed person in two or more Member States pursues a substantial part of his activities in the State of residence in a case in which it is established that he performs activities there for 22 percent of his working time? Is it required in that respect that: (i) a circumstance be directly linked to the pursuit of activities, (ii) a circumstance contain an indication as to the place where the activities are performed, and (iii) quantitative conclusions can be drawn from the circumstance as to the weight that can be attributed to the activities that are performed in the State of residence as compared with the total of all the activities of the person concerned?

Must or can this assessment, in view of the answer to question 1, take into account: (i) the residence of the employee, (ii) the place of registration of the barge on which the employee performs his activities, (iii) the place of establishment of the owner and operator of the barge, (iv) the place where the vessel sailed during other periods in which the employee was not working on it and was not yet in the service of the employer, (v) the place of establishment of the employer, and (vi) the place where the employee boards and disembarks the vessel?

Over which period must it be assessed whether an employee pursues a substantial part of his activities in his State of residence?

Does the competent body of a Member State, in determining the legislation applicable, have discretion which the courts must in principle respect with regard to the concept of ‘substantial part of his activity’ in Article 13(1) of the Basic Regulation and, if so, how far does that discretion extend?

Finally, I would like to draw the reader’s attention to joint cases C-424/24, FIGC and CONI, and C-425/24, FIGC and CONI. Once more, the Court is asked about an issue touching upon the relationship between dispute resolution mechanisms in sport matters and ordinary jurisdiction, although this time the main proceedings do not concern sanctions imposed on athletes but on managers of a company carrying out a sporting activity, due to alleged misbehaviors in the exercise of business linked to said activity. In case C-425/24, the Tribunale Amministrativo Regionale per il Lazio (Italy) referred these questions to the Court of Justice:

Must EU law, and in particular Articles 6 and 19 TEU, in the light of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the ECHR, in relation to the principle of effective judicial protection, be interpreted as precluding:

– a national provision of a Member State, such as Article 2 of decreto-legge 220/2003 (Decree-Law No 220/2003), converted into legge 280/2003 (Law No 280/2003), as interpreted in Italian case-law, once the instances of national sports justice have been exhausted, from excluding recourse to judicial protection that confers a power on the national court (in this case, the administrative court) to annul disciplinary sanctions in sport and their future effects, and to suspend the effect of those sanctions as an interim measure, thereby limiting the national court to awarding equivalent compensatory protection, where it appears that the disciplinary power has been exercised unlawfully?

Must EU law, and in particular Articles 6 and 19 TEU, interpreted in the light of Articles 47, 48 and 49 of the Charter of Fundamental Rights of the European Union and Articles 6 and 7 of the ECHR, be interpreted, so as to ensure observance of the principles of the legality of criminal offences and penalties, of legal certainty and sufficient precision of offences, as well as of due process, as precluding:

– a national provision, such as Article 2 of Decree-Law No 220/2003, converted into Law No 280/2003 – as interpreted in Italian case-law – which, in accordance with the principle of autonomy of sports law as enshrined in national law and interpreted in Italian case-law, allows sports governing bodies to impose a disciplinary sanction on a sports manager prohibiting him or her from undertaking professional activities on the ground that he or she infringed a provision of the sporting federation’s rules (Article 4(1) of the Codice di Giustizia Sportiva FGCI (FGCI Sports Justice Code)), which establishes, by a general clause formulated in vague terms, that all members and managers are required to observe, in addition to the by-laws and other regulations of the federation, the principles of honesty, fairness and integrity?

Must EU law, and in particular Articles 45, 49, 56, 101 and 102 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding:

– a national provision, such as Article 2 of Decree-Law No 220/2003, converted into Law No 280/2003, from allowing sports bodies to impose a disciplinary sanction on a manager of a sports club operating at international level which prohibits him or her from undertaking professional activities for 24 months at national and supranational level?

In C-425/24 the questions are basically the same. A common hearing for both cases will take place in Luxembourg on Thursday 17 September.

This post was written by Paul Eichmüller, University of Vienna.

A recent decision by the Regional Civil Court of Vienna has sparked controversy in Austrian media. The outcry was due to the fact that the court allowed the enforcement of a domestic arbitral award that was based on “Islamic law (Ahl as-Sunna wa-l-Ǧamāʿa) according to equity”, as agreed by the parties. Tabloid media denounced that Austrian courts supposedly hailed the application of Sharia law in Austria. Yet, this decision is not as problematic as asserted and should not have come as a surprise to anyone familiar with Austrian arbitration law and its conflict-of-laws rules.

The Facts of the Case

Two Austrian parties had concluded a commercial contract (which was not further specified in the decision), including an arbitration clause for all disputes arising out of the contract. In addition to this arbitration clause, they specified that disputes were to be resolved on the basis of “Islamic law (Ahl as-Sunna wa-l-Ǧamāʿa) according to equity”. When a dispute arose, one party initiated arbitral proceedings and was awarded more than € 1 million in the arbitral award; the award was not set aside. As the respondent nevertheless refused payment, the claimant sought enforcement of € 320,000 before a district court in Vienna.

During the enforcement proceedings, the respondent argued that the award could not be enforced due to a violation of Austrian public policy. The application of “Ahl as-Sunna wa-l-Ǧamāʿa” would allegedly not be definite enough, as its exact content is subject to debate among Islamic legal scholars and its interpretation thus varies. The court dismissed this argument: also in state law, even the most basic legal notions are often subject to scholarly disagreements – yet, that does not mean it is unfit as a legal base for a dispute. Consequently, the court enforced the arbitral award. When an appeal was lodged before the Regional Civil Court of Vienna, it upheld this decision.

Non-State Legal Rules in Arbitration

Austrian arbitration law (contained in the Austrian Code of Civil Procedure) contains a specific provision on the applicable law in arbitral proceedings. Section 603 (1) CPC allows parties to choose the applicable law – even in domestic disputes. What is more, Section 603 (1) CPC does not only allow for the choice of a particular law (Rechtsvorschriften) but also of legal rules (Rechtsregeln). This provision extends the selection of legal frameworks that can be made applicable to the merits of a dispute not only to state law but also to non-state legal rules. While Islamic law is not considered “law” in the strict sense, it can be made applicable in an arbitration – just as the UNIDROIT Principles on International Commercial Contracts could.

The Takeaway

The ruling of the Regional Civil Court of Vienna has shown that arbitration based on religious rules is possible when the arbitration is seated in Austria. Yet, contrary to what the tabloids are asserting, this is not “Islamic values slowly creeping into the mainstream in Europe”. Actually, this is not a specificity of Islamic law and would equally apply to Jewish law or Canon law – or the ancient Roman Digest, for that matter.

Neither is this a case of parallel justice. The state courts still exercise control over the arbitral proceedings by way of their supervisory jurisdiction, above all via setting-aside proceedings (see Section 611 CPC). This ensures a fair hearing and a result that is palatable for the domestic legal system. To avoid a total opt-out of state control, Section 613 CPC even provides for a limited ex officio review of the award regarding arbitrability and substantive public policy, independent of setting-aside proceedings. If there is a serious incompatibility of the award with the values of the Austrian legal system, it will not be given effect by the courts in any context.

Furthermore, not all disputes are arbitrable: only pecuniary relationships or those that may be settled by the parties (Section 582 (1) CPC) can be arbitrated. What is more, particularly sensitive matters like family law and landlord–tenant law are explicitly declared non-arbitrable (Section 582 (2) CPC). In consumer arbitration, a choice of law cannot derogate from mandatory rules (Section 617 (6) 1 CPC), similar to Article 6(2) of the Rome I Regulation.

The scope of application for religious rules thus remaining is the sphere for which substantive law grants considerable room for a party-autonomous determination anyway. If the parties want their pecuniary disputes arising out of, e.g., a service contract settled by religious rules, they should have the opportunity to do so. After all, a legal system hugely profits from acceptance by its legal subjects. If religious arbitration leads to greater acceptance of the decision and the results are compatible with public policy, we should refrain from demonising it.

Following Brexit, the Brussels I bis Regulation ceased to apply in the UK. The regulation’s rules of jurisdiction in consumer and employment matters (Chapter II, Sections 4 and 5, Articles 17-23) were replaced by Sections 15A-15E of the Civil Jurisdiction and Judgments Act 1982.

The Explanatory Memorandum to the amendments to the 1982 Act introducing these provisions explains that their purpose was to ‘continue the particular protections offered to consumers and employees domiciled in the UK by the Brussels Ia Regulation’ (para 2.6) and that, since these protections ‘are not available in the common law and statutory provision of England and Wales and Northern Ireland, and only to a more limited extent in Scotland, apart from the Brussels regime, and so the Government has chosen to retain them’ (para 7.1).

The Brussels I bis protections, in a nutshell, consist of:

(1) limiting the number of jurisdictional bases on which the stronger party (supplier/seller/employer) can rely if it wants to sue the weaker party (consumer/employee) – the weaker party can usually only be sued in their domicile;

(2) enabling the weaker party to rely on multiple jurisdictional bases if they want to sue the stronger party, potentially opening multiple forums from which to choose when commencing proceedings;

(3) restraining party autonomy;

(4) finally, while Brussels I bis was in force in the UK, the doctrine of forum non conveniens did not apply.

Post-Brexit, several questions arise. Do Sections 15A-15E of the 1982 Act lay down all jurisdictional bases available in covered consumer and employment disputes, or is there any space left for the operation of traditional jurisdictional bases? Should the concepts used in the 1982 Act be interpreted in light of EU law or domestic law? Does forum non conveniens have any role to play?

Some of these questions were addressed by the Employment Appeal Tribunal (Auerbach J) on 12 June 2025 in Prähl v Lapinski [2025] EAT 77.

Facts

Mr Lapinski was formerly a member of a limited liability partnership. He commenced proceedings against the partnership and several individual defendants, as the employees or agents of the partnership, under the Equality Act 2010, alleging discrimination on the basis of a disability.

The parties agreed that the claim was of a nature that employment tribunals were empowered to consider under Sections 2 and 3 of the  Employment Tribunals Act 1996 (so-called ‘cause of action jurisdiction’). They further agreed that the claim fell within the territorial scope of the 2010 Act (so-called ‘territorial jurisdiction’).

However, some defendants were domiciled and present in Sweden. This raised the question of whether the tribunal had ‘international jurisdiction’ over those defendants. The defendants argued that the claimant ought to have obtained permission to serve them out of the jurisdiction (a traditional common law requirement for absent defendants) and that, in any event, the tribunal was forum non conveniens (a traditional common law power allowing English courts to refuse to exercise jurisdiction).

Judgment

The tribunal decided the case in favour of the claimant.

First, it held that, when Sections 15A-15E of the 1982 Act apply and point to the jurisdiction of an English tribunal, permission to serve out is not required ([68]).

Second, although the claimant did not have a contract of employment with the partnership in the sense of domestic English law, the tribunal held that this was an employment claim for the purposes of the 1982 Act. To reach this conclusion, the tribunal relied on the wide definition of ‘employee’, ‘employer’ and ‘matters relating to a contract of employment’ in the context of Brussels I bis ([70]-[74]).

Third, although the rule of jurisdiction over co-defendants in Article 8(1) of Brussels I bis is not specifically included in Sections 15A-15E of the 1982 Act, the tribunal held that the claimant should be able to rely on this jurisdictional basis, as his position could not be worse after Brexit, given the purpose of these provisions ([67], [76]-[79]).

Fourth, the tribunal held that, when Sections 15A-15E of the 1982 Act apply, forum non conveniens does not ([68]).

Comment

While the purpose of Sections 15A-15E of the 1982 Act is clear, it has not been implemented in the best possible way. Prähl v Lapinski reveals several shortcomings.

It is unclear whether Sections 15A-15E of the 1982 Act constitute a complete and self-contained ‘code’ of jurisdictional rules when a case falls within their scope. Under Brussels I bis, the weaker party is precluded from invoking domestic jurisdictional rules, even if they would be better-off under those rules. This principle applies equally to EU-domiciled (Case C‑462/06 Glaxosmithkline v Rouard EU:C:2008:299) and non-EU-domiciled defendants (Case C-604/20 ROI Land Investments Ltd v FD ECLI:EU:C:2022:807). With this in mind, the decision that, when Sections 15A-15E of the 1982 Act apply and point to the jurisdiction of an English tribunal, permission to serve out is not required is correct.

Similarly, the interpretation of Sections 15A-15E of the 1982 Act by with regard to concepts developed by the Court of Justice of the EU before Brexit is required by Section 15E(2). Therefore, the tribunal’s wide interpretation of the concepts of ‘employee’, ‘employer’ and ‘matters relating to a contract of employment’ is also correct.

However, the tribunal’s decisions regarding the availability of a rule of jurisdiction over co-defendants, despite Article 8(1) of Brussels I bis not being specifically included in Sections 15A-15E of the 1982 Act, and the unavailability of forum non conveniens are not beyond reproach.

It may be speculated that the reason why Article 8(1) of Brussels I bis is not specifically included in Sections 15A-15E of the 1982 Act is because its application in employment disputes within the EU is preserved by Article 20(1) of the regulation and not Article 21, which lists all other available jurisdictional bases when an employee sues the employer, while Section 15C(2), which sets out available jurisdictional bases when an employee sues the employer in the UK, only replicates the bases found in Article 21 of the regulation. Nevertheless, invoking a jurisdictional basis that is not included in the 1982 Act, requires more justification than merely noting its availability before Brexit and the reason behind the amendments to the 1982 Act. Ultimately, the tribunal’s decision on this point seems to be obiter, since the employee’s habitual place of work was in England, so there was arguably no need to rely on the rule of jurisdiction over co-defendants. This significantly weakens the persuasiveness of the tribunal’s decision on this point.

Finally, the tribunal failed to mention that the 1982 Act contains the following provision in Section 49 (‘Saving for powers to stay, sist, strike out or dismiss proceedings’):

Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with Hague Convention.

While the availability of forum non conveniens would undermine the purpose of Sections 15A-15E, the tribunal’s policy-based argument can hardly override what appears to be a clear statutory instruction in Section 49.