Archive for category: Case law

This post was written by Lorène Anthonioz, who is PhD candidate in Private International Law at the University of Geneva and a Research and Teaching Assistant in Private International Law at UniDistance.

On 15 September 2025, the Swiss Federal Supreme Court issued a judgment in case 4A_129/2024. Applying the CJEU case law, the Court ruled, for the first time, that, under the Lugano Convention, a party opposing recognition may only invoke substantive public policy if they have exhausted all legal remedies available in the State of origin to prevent the alleged breach of public policy.

Background

In July 2017, a Romanian tribunal ordered a Swiss company A SA) to pay a Romanian company (B SRL) around €159,000, plus interest at a rate of 0.15% per day from 10 June 2016, as well as additional interest. On appeal, however, the Romanian Civil Court amended this decision. A SA was ordered to pay B SRL approximately €56,000 with interest at a rate of 0.15% per day from 10 June 2016, together with further interest. The parties had indeed concluded a sales contract, agreeing that B SRL could claim interest at a rate of 0.15% per day until the debt was fully paid. In May 2022, the Romanian High Court rejected appeals from both parties.

B SRL filed a request for debt enforcement with a Swiss debt enforcement office for approximately CHF 250,000, with interest at a rate of 0.15% per day from 11 March 2022. Following an objection by A SA, the judge granted enforcement for CHF 10,500, plus 35% annual interest on CHF 57,500 from 10 June 2016. However, this decision was subsequently amended by the Superior Court, which granted enforcement for CHF 16,500 and CHF 57,500, at a daily interest rate of 0.15% from 10 June 2016.

A SA appealed to the Swiss Supreme Court.

Decision

During debt enforcement proceedings in Switzerland, a debtor may invoke the defences provided for in the relevant international treaty if the judgment was issued in another State (Article 81(3) of the Swiss Federal Act on Debt Enforcement and Bankruptcy (DEBA)).

In this case, because the judgment was rendered by a Romanian court in a civil or commercial matter, the Lugano Convention applied. Recognition may therefore be refused if it is manifestly contrary to public policy in the State in which recognition is sought (Article 34(1)).

A SA primarily relied on a breach of substantive public policy in relation to the interest rate of 0.15% per day. However, it emerged from the facts that the Swiss company had not challenged the interest before the Romanian courts. Those courts simply applied the contractual clause and did not specifically address the issue of interest in their judgments. The question before the Swiss Supreme Court was therefore whether A SA could still invoke a breach of substantive public policy, in light of the relevant CJEU case law (C-559-14, Meroni, para. 47 and 48; C-681/13, Diageo Brands, para. 63, 64 and 68).

When interpreting the Lugano Convention, the Supreme Court follows the CJEU’s jurisprudence, unless the decisions are based significantly on principles of Community law not derived from the Convention or the Contracting Parties’ legal systems. In this case, these decisions must be taken into account.

Regarding the issue in question, the Supreme Court referred to the CJEU case law, based on mutual trust in the administration of justice within the EU, according to which individuals are generally required to use all the legal remedies made available by the law of the Member State of origin. When assessing whether there is a manifest breach of public policy in the requested State, the court of that State must consider that litigants must avail themselves of all the legal remedies available in the Member State of origin to prevent a breach of public policy before it occurs, unless specific circumstances make it too difficult or impossible to make use of the legal remedies in that State.

The Supreme Court ruled that this case law was applicable in Switzerland, given that the Lugano Convention is also founded on mutual trust between Member States. Furthermore, this jurisprudence gives effect to the general principle of good faith in proceedings.

It may be interesting to note that Switzerland declared that it would not apply the exception in Article 34(2) (“unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”), as it considered it to be an excessive limitation on defendants’ rights. However, according to the Supreme Court, this reservation did not apply in the present case, since the CJEU did not formally refer to procedural public policy in its decisions, nor did it draw any analogy with the exception to its application. Instead, it added the exception of “special circumstances making it too difficult or impossible to exercise remedies in the Member State of origin”, which differs from that set out in Article 34(2).

Consequently, in contractual matters, the party opposing the recognition of a foreign judgment on the ground of a breach of substantive public policy under Article 34(1) of the Lugano Convention must first have exhausted all available remedies in the State of origin to prevent such a breach. This obligation means that the party must have raised the grounds that would have prevented the alleged breach of public policy before the courts of the State of origin, unless they can demonstrate that the jurisdiction of those courts would not have allowed them to examine such grounds.

In the present case, A SA had not contested the interest in question before the Romanian courts, despite having exhausted all available Romanian appeals. This would have been possible under Article 1541 of the Romanian Civil Code. As a result, it could not invoke a breach of substantive public policy regarding the interest rate of 0.15% per day, even though it amounted to 50% per year. The appeal was dismissed.

Comment

Prior to this decision, there was a dispute over whether the CJEU case law on substantive public policy, which concerns the obligation to exhaust all legal remedies abroad before invoking it, was applicable in Switzerland under the Lugano Convention. Some literature considered this rule to be based on Community law principles, which are not binding for Switzerland, and contrary to its reservation not to apply the exception in Article 34(2).

However, the Swiss Federal Supreme Court dismissed these objections. It aligned Swiss case law with that of the CJEU, giving effect to the strict interpretation of the grounds for opposing recognition and, ultimately, the principle of mutual trust between Member States.

Hence, under the Lugano Convention, parties cannot invoke a breach of Swiss public policy to oppose the recognition of a judgment delivered in a State bound by the Convention unless they have first exhausted all legal remedies available in the State of origin to prevent the alleged breach. Therefore, the person who may be subject to recognition and enforcement in Switzerland must anticipate possible objections in this context when appearing before foreign courts. Nevertheless, this obligation does not apply where special circumstances made it too difficult or impossible to exercise remedies before the courts of the Member State of origin. This includes situations where the relevant grounds could not have been examined by those courts.

Regarding procedural public policy, however, Switzerland still does not require that “the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so” in order to invoke it (Article 34(2)). As Professor Bucher comments in the update to the Lugano Convention Commentary (Title III), this creates a somewhat “heterogeneous” system.

The Court of Justice will resume its work on Monday 13^th, after the Easter break.  On Thursday 16^th, it will deliver its judgment in joined cases C-672/23, Electricity & Water Authority of the Government of Bahrain e.a. and C-673/23, Smurfit Kappa Europe e.a. A hearing had taken place on January 2025; Advocate general J. Kokott’s opinion was published two months later (see below). The questions from the Gerechtshof Amsterdam (Court of Appeal, Amsterdam), partially identical, revolve around Article 8(1) of the Brussels I bis Regulation in cartel law :

‘Question (1a)

Is there a close connection within the meaning of Article 8(1) of the Brussels I bis Regulation between:

(i)          on the one hand, a claim against a lead defendant that is not an addressee of a Commission cartel decision (C 672/23)/cartel decision of a national competition authority (C 673/23) but, as an entity alleged to belong to the undertaking within the meaning of the [EU] competition law (the ‘Undertaking’), is held liable downstream (C 672/23)/upstream (C 673/23) for the established infringement of the prohibition of cartels under EU law; and,

(ii)         on the other hand, a claim against:

(A)         a co-defendant who is an addressee of that decision; and/or

(B)         a co-defendant who is not an addressee of the decision in respect of which it is alleged that, as a legal entity, it belongs to an Undertaking which has been held publicly liable in the decision for the infringement of the prohibition on cartels under EU law?

In that regard, does it matter:

(a)         whether the anchor defendant being held liable downstream (C 672/23)/upstream (C 673/23) merely held and managed shares during the cartel period;

(b)  if Question (4a) is answered in the affirmative – whether the anchor defendant being held liable downstream (C 672/23)/upstream (C 673/23) was involved in producing, distributing, selling and/or supplying cartelised products and/or providing cartelised services;

(c)          (C 673/23) whether or not the anchor defendant resides in the Member State where the national competition authority has found (only) an infringement of the prohibition on cartels under EU law on the national market;

(c)          (C 672/23)/(d)  (C 673/23) whether the co-defendant who is an addressee of the decision has been designated in the order as

(i)          an actual cartel participant – in the sense that it actually participated in the infringing agreement(s) and/or concerted practice(s) found, or

(ii)         as a legal entity forming part of the Undertaking which has been held publicly liable for the infringement of the prohibition on cartels under EU law;

(d)         (C 672/23)/(e)   (C 673/23) whether the co-defendant who is not an addressee of the decision actually produced, distributed, sold and/or supplied cartelised products and/or services;

(e)         (C 672/23)/(f)   (C 673/23) whether or not the anchor defendant and the co-defendant belong to the same Undertaking,

(f)          (C 672/23)/(g)   (C 673/23) the plaintiffs have directly or indirectly purchased or received products and/or services from the anchor defendant and/or the co-defendant?

Question (1b)

Is it relevant to the answer to Question (1a) whether or not it is foreseeable that the relevant co-defendant will be sued in the court of that anchor defendant? If so, is that foreseeability a separate criterion when applying Article 8(1) of the Brussels I bis Regulation? Is that foreseeability given in principle in the light of the [judgment of 6 October 2021, Sumal] (C 882/19, EU:C:2021:800)? To what extent do the circumstances mentioned in Question (1a)(a) to (f) (C 672/23)/(a) to (g) (C 673/23) above make it foreseeable here that the co-defendant would be sued in the court of the anchor defendant?

Question (2)

In determining jurisdiction, should consideration be given also to the admissibility of the claim against the anchor defendant? If so, is it sufficient for that assessment that it cannot be excluded in advance that the claim will be upheld?

Question (3a) (C 672/23)

Does the right under EU law of any person to damages following an established breach of the prohibition on cartels under EU law include the right to claim damages suffered outside the EEA?

Question (3b) (C 672/23)/Question (3) (C 673/23)

Must – or can – the presumption accepted in competition law of decisive influence by the (fined) parent companies over the economic activity of the subsidiaries (the ‘Akzo presumption’) be applied in (civil) cartel damages cases?

Question (3c) (C 672/23)

Does an intermediate holding company which merely manages and holds shares meet the second Sumal criterion (engagement in an economic activity which has a specific link to the subject matter of the infringement for which the parent company has been held responsible)?

Question (4a)

When applying Article 8(1) of the Brussels I bis Regulation, can different defendants domiciled in the same Member State be anchor defendants (together)?

Question (4b)

Does Article 8(1) of the Brussels I bis Regulation directly and immediately designate the relative competent court, overruling national law?

Question (4c)

If Question (4a) is answered in the negative – such that only one defendant can be an anchor defendant – and Question (4b) is answered in the affirmative – such that Article 8(1) of the Brussels I bis Regulation, overruling national law, directly designates the relative competent court:

When applying Article 8(1) of the Brussels I bis Regulation, is there scope for internal reference to the court of the defendant’s domicile in the same Member State?’

In her opinion of April  3^rd, 2025, J. Kokott proposes that the Court of Justice rules as follows:

‘(1a)       Claims are closely connected within the meaning of Article 8(1) of the Brussels I bis Regulation where there are strong indications that the companies against which they are brought are part of undertakings within the meaning of antitrust law which have jointly committed an infringement of the prohibition of cartels laid down in EU law, provided that it cannot be excluded a priori that the defendant companies belong to the undertakings concerned.

(1b)       The foreseeability of the ground of jurisdiction is not a defining element in the determination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, but a general principle that must be observed in the interpretation of every special rule of jurisdiction in that regulation.

(2)         In the examination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.

(3a)       The fact that the damage alleged in a claim for damages under antitrust law before a court of a Member State occurred outside the EEA does not mean that that claim must be classified as manifestly unfounded in the context of the examination of jurisdiction.

(3b)       The rebuttable presumption that a parent company which directly or indirectly holds all or almost all of the capital of a subsidiary company exerts a decisive influence on that subsidiary, may be applied in cartel damages cases.

(3c)       The activity of an intermediate holding company which merely manages and holds shares is capable of having a specific link to the subject matter of an infringement of competition law for which the parent company controlling the intermediate holding company is held liable. This is especially the case where a subsidiary of the intermediate holding company, on which the holding company itself exerts a decisive influence, pursues an economic activity which has a specific link to the subject matter of the infringement committed by the grandparent company.

(4)         Under Article 8(1) of the Brussels I bis Regulation, only a defendant domiciled in the judicial district of the court seised can be an anchor defendant, since that provision directly governs not only international but also territorial jurisdiction. This does not preclude an internal reference to another court in the same Member State, provided that the effective enforcement of that regulation is not adversely affected as a result.‘

The deciding chamber is composed by F. Biltgen (reporting), T. von Danwitz, I. Ziemele, A. Kumin, and S. Gervasoni.

The hearing in case C-300/25, Duftošek, announced to take place last month, should be held on the same day.

One week later, on Thursday 23, Advocate general N. Emiliou is expected to deliver his opinion in case C-799/24, Babcock Montajes. The hearing took place last February, as reported here. A comment by Dr. Lino Bernard on the questions referred has been recently published in the blog

Two further opinions by Advocate general N. Emiliou should be published on the same day, in case C-176/25, Steizer, following a hearing that took place last January (see here), and in case C-683/24, Spielerschutz Sigma. The latter is a request for a preliminary ruling from the Handelsgericht Wien (Austria), focusing on several provisions on recognition and enforcement under the Brussels I bis regulation in a case connected, once again (see, among other, C-198/24, Mr. Green, pending, on the European Account Preservation Order), with the Maltese ban on the recognition of foreign decisions against holders of Maltese gaming services licences:

1. Must Article 1(1) and (2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in conjunction with Articles 45(1)(a), 46 and 52 of that regulation, be interpreted as precluding a provision of national law which, on the basis of a corresponding principle of public policy enshrined in national law, precludes the recognition and enforcement of judgments given by the courts or tribunals of other Member States in respect of all proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service if such legal action conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the [competent] authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services, and relates to an authorised activity which is lawful in terms of that national law and other applicable national regulatory instruments?
2. Must Articles 45(1) and 46 of Regulation (EU) No 1215/2012 be interpreted as precluding a provision of national law which, irrespective of whether a relevant application is submitted to the court or tribunal before which recognition or enforcement is sought and of whether the person bearing the obligation has exhausted all legal remedies in the Member State of the court of first instance, and without review by the court or tribunal before which recognition or enforcement is sought, precludes the recognition (Article 45 of Regulation (EU) No 1215/2012) and enforcement (Article 46 of Regulation (EU) No 1215/2012) of judgments given by the courts or tribunals of other Member States in respect of all proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service if such legal action conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the [competent] authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services, and relates to an authorised activity which is lawful in terms of that national law and other applicable national regulatory instruments?

3.a.   Must Articles 45(1)(a) and 46 of Regulation (EU) No 1215/2012 be interpreted as precluding a provision of national law which declares the recognition and enforcement of judgments to be contrary to public policy (ordre public) for the sole purpose, in the context of encouragement of the private sector by the State as provided for in the national constitution, of protecting holders of online gaming licences from the recognition and enforcement of judgments finding against them that are given by courts or tribunals of other Member States?

3.b.   Must Articles 45(1)(a) and 46 of Regulation (EU) No 1215/2012 be interpreted as precluding refusal on grounds of public policy of recognition and enforcement by the court or tribunal seised in the State in which enforcement is sought where that refusal is based solely on the premiss that recognising such a judgment would be contrary to the economic and financial interests of the Member State addressed because gaming providers make a significant contribution to the national economy and the revenue of that Member State?

4. Must Article 52 of Regulation (EU) No 1215/2012 be interpreted as precluding a provision of national law which precludes recognition and/or enforcement of a judgment given by a court or tribunal of another Member State in proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service because the gaming provider’s activity, assessed under Maltese law, would be permissible?
5. Must Article 48 of Regulation (EU) No 1215/2012 be interpreted as meaning that the obligation to decide without delay enshrined therein is breached if no decision on the application for recognition has been given at first instance within six months and that delay is not due to circumstances or delays on the part of the parties or of third parties in the individual recognition proceedings?

In the main proceeding, the applicant is a litigation funding company which funds legal actions brought by Austrian and German consumers (players) against online gaming providers that provide gaming illegally without holding national licences. In the process, gaming losses are successfully recovered on the basis of unjust enrichment and of damages arising from tort/delict. The applicant has obtained numerous judgments in Austria and Germay against Maltese gaming providers through its clients and seeks to have them enforced in Malta in accordance with Article 39 of the Brussels I bis Regulation.

After the Maltese legislature passed a law in June 2023 under which the recognition and enforcement of all foreign judgments against Maltese online gaming providers are to be refused in principle, the applicant commissioned the defendant to prepare a legal opinion on the recognition and enforceability in Malta of the Austrian and German judgments obtained in the proceedings it funded, with a view to assessing the potential risks to its business model arising from that legislative amendment. The expert opinion of the defendant, a law firm established in Germany, was intended to serve as a basis for the applicant to decide on its future business activities.

Contrary to the defendant’s expert conclusions, Article 56A of the Maltese Gaming Act is being applied without conditions by the Maltese judiciary. Applications based on the Brussels I bis regulation for recognition of the Austrian and German judgments and their enforcement in the proceedings funded by the applicant are being dismissed on the basis of that provision. On the basis of that fact, the applicant seeks reimbursement from the defendant of the fee of EUR 5 000 paid for the defendant’s incorrect legal opinion and determination of the defendant’s liability for all future damage suffered by the applicant as a consequence of funding judicial proceedings in Austria and Germany between 5 July 2023 (when the expert opinion was provided) and 1 August 2023 (when the applicant learned of the Maltese decision cited above) brought by Austrian and German participants in illegal online gaming against Maltese online gaming provider.

The case will be determined by a chamber of five judges (I. Jarukaitis, M. Condinanzi, N. Jääskinen –reporting-, R. Frendo and A. Kornezov).

Finally, on Thursday 30 Advocate general J. Richard de la Tour will deliver his opinion in case C-190/25, Zelabrich. A hearing took place last February – reported here.

The author of this post is Lino Bernard, post-doctoral researcher at the University of Mainz, Germany. He developed the following thoughts in the course of his PhD thesis on parallel proceedings and jurisdiction agreements and has recently published a note on the preliminary reference of the German Federal Supreme Court in EuZW (European Journal of Business Law) 2025, p. 194 et seq.

As already announced on this blog, the German Federal Supreme Court has referred preliminary questions to the CJEU concerning the recognition of interlocutory decisions establishing jurisdiction under the Brussels I bis Regulation.

Although the questions are to be welcomed with respect to legal certainty, the answer proposed by the German Federal Supreme Court fails to convince.

Facts of the Case, National Proceedings and Preliminary Questions

Marta Requejo Isidro already concisely summarised the facts of the case and the national proceedings leading to the preliminary questions in a previous post.

In a nutshell:

A German company and a Spanish company concluded a contract containing an exclusive jurisdiction agreement in favour of a German court. The Spanish company instituted proceedings against the German company before a court in Madrid (Spain) concerning a payment the German company allegedly owed the Spanish company under the contract with regard to a bank guarantee that the German company called on. A few days later, the German company instituted proceedings against the Spanish company before the German regional court designated in the jurisdiction agreement, claiming that it had the right to call on the bank guarantee.

The Madrid court declared (without addressing the jurisdiction agreement in favour of the German court) that it had international jurisdiction but was lacking territorial competence and referred the case to a court in San Sebastián (Spain). The German company did not challenge the decision of the Madrid court but challenged the international jurisdiction before the San Sebastián court which rejected the challenge in an interlocutory decision with reference to the previous decision of the Madrid court.

The German court dismissed the action of the German company as inadmissible on the ground that (pursuant to Article 36 of the Brussels I bis Regulation) it had to recognise the interlocutory decision of the San Sebastián court. Following the German company’s appeal, the German appellate court set aside the judgment of the German regional court, finding that it had international jurisdiction despite the decision of the San Sebastián court. The Spanish company lodged an appeal against this decision before the German Federal Court of Justice, which has referred the following questions to the CJEU:

“1. Is the term ‘judgment’ in Article 36(1) of Regulation (EU) No 1215/2012 (1) (‘the Brussels I Regulation’) to be interpreted to the effect that the court of a Member State on which an agreement as referred to in Article 25 of the Brussels I Regulation confers exclusive jurisdiction (Article 31(2) of the Brussels I Regulation) must recognise a judgment by which a non-designated court of a Member State finds that the courts of that Member State have international jurisdiction if the judgment in question is an interim judgment, in other words, is not a decision which terminates a dispute?

2. If the answer to Question 1 is, in principle, in the affirmative: Does recognition of the interim judgment also depend on whether the interim judgment affirming the international jurisdiction of the courts of the Member State is binding on the non-designated court itself and/or whether the affirmation of international jurisdiction may be varied in the context of an appeal?“

Legal Background: Procedural Coordination under the Brussels I bis Regulation

The preliminary questions of the German Federal Court of Justice concern the coordination of parallel proceedings under the Brussels I bis Regulation.

Pursuant to its Article 31(2), this coordination is primarily linked to the alleged existence of an exclusive jurisdiction agreement. Only subsidiarily the coordination of proceedings is determined by the order in which they are instituted (Article 29(1)). Hence, if the court second seised is allegedly exclusively prorogated, the court first seised must stay its proceedings pursuant to Article 31(2) (unless it finds that there is not even the prima facie possibility of the existence of an exclusive jurisdiction agreement in favour of the court second seised, see, e.g., Hess et al., p. 32 et seq.; Bernard, p. 281 et seqq.).

Linking the coordination of parallel proceedings primarily to alleged exclusive jurisdiction agreements intends to prevent so-called torpedo actions (see, e.g., Bernard, p. 169 et seqq., 226 et seqq.). Prior to the introduction of Article 31(2)–(4), if, for example, a debtor anticipated an action by its creditor before a competent court, the debtor had the (unavoidable) possibility of frustrating the anticipated action by instituting negative declaratory proceedings before a court lacking jurisdiction but working in such an excessively slow manner that the (anticipated) action of the creditor before a competent court was blocked for a relevant amount of time. Article 31(2)–(4) serves to prevent this situation.

The case at hand concerns the situation in which the court first seised does (rightfully or wrongfully) not stay its proceedings pursuant to Article 31(2), resulting in parallel proceedings which need to be coordinated. The question at hand concerns the implications of an interlocutory decision of the court first seised by which it establishes its international jurisdiction (despite the alleged exclusive jurisdiction agreement in favour of the court second seised).

Does this decision bind the court second seised?

Preliminary Considerations: The Preliminary Questions

The German Federal Court of Justice has asked the CJEU if interlocutory decisions establishing jurisdiction must be recognised pursuant to Article 36(1). However, the matter, at least primarily, concerns the system of procedural coordination.

The question whether decisions on jurisdiction qualify (or should qualify) as recognisable decisions in the sense of Article 36(1) (Article 2(a)) is a complex issue that goes beyond the scope of this post (see, e.g., Bernard, p. 74 et seqq., 86 et seqq.). However, there is a simple argument that at least interlocutory decisions by which a court establishes jurisdiction do not, and should not, qualify as recognisable decisions: the system of procedural coordination, namely Article 29(3). It stipulates that “[w]here the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.” In other words, the binding effect of an establishment of jurisdiction is explicitly codified. Therefore, any “recognition” of such decisions is neither necessary nor envisaged under the Brussels I bis Regulation (and would lead to systemic problems, see Bernard, p. 74 et seqq., 88 et seqq.).

The recognisability of interlocutory decisions establishing jurisdiction cannot be derived from Gothaer either. The CJEU imposed the recognition of decisions by which a court declines jurisdiction. This was, on a side note, not necessary either (since it is possible to apply the rationale of Article 29 to this situation), and leads to systemic problems as well (see Bernard, p. 104 et seqq.). However, the CJEU did not address interlocutory decisions by which a court establishes jurisdiction. The German Federal Court of Justice points this out as well in para. 29 of its decision.

There is also a good argument for distinguishing between decisions declining jurisdiction (terminating the dispute) and interlocutory decisions establishing jurisdiction in light of the above. While the Brussels I bis Regulation does not provide an explicit rule on the declination of jurisdiction (which is why the CJEU had to come up with some solution in Gothaer), it does provide a rule on the establishment of jurisdiction in Article 29(3), as noted above.

All this being said, it is understandable that the German Federal Court of Justice framed its preliminary questions with regard to Gothaer (addressing the recognisability). However, it should at least primarily have addressed the system of procedural coordination. The court should have asked the CJEU whether a binding effect of such decisions can be derived from the system of procedural coordination, namely Article 29(3), and if this binding effect also applies if the court second seised is allegedly exclusively prorogated and, therefore, generally entitled to conduct its proceedings pursuant to Article 31(2).

No Binding Effect of non-final (revocable) Interlocutory Decisions

The German Federal Court of Justice correctly states that a binding effect of a non‑final (revocable) interlocutory decision of the court first seised would lead to problems in the form of a negative conflict of jurisdiction. It would be possible that the proceedings instituted first are (in the end) dismissed for lack of jurisdiction after the proceedings instituted second have already been dismissed due to the jurisdiction of the court first seised.

At this point already, it becomes apparent that the matter concerns the system of procedural coordination: Specifically to avoid such a negative conflict of jurisdiction, Article 29(3) requires (in principle) that the jurisdiction of the court first seised is finally established (CJEU, C-1/13, para. 41 et seq.).

Binding Effect of final (irrevocable) Interlocutory Decisions

Regarding final (irrevocable) interlocutory decisions, the German Federal Court of Justice takes the view that such decisions do not have to be recognised by the court second seised (implicitly rejecting a binding effect in the sense of Article 29(3)). The German Federal Court of Justice argues that Article 31(2) permits the “prorogated” court to examine its own prorogation and that this would apply even if the court first seised has established its jurisdiction in a final interlocutory decision.

This argument is not convincing.

Indeed, Article 31(2) allows the court second seised and allegedly exclusively prorogated to conduct its proceedings. The purpose of this provision, however, is to prevent torpedo actions. In other words, the provision does not aim at establishing the priority of courts that are allegedly exclusively prorogated as a general rule (as an end in itself), but only to prevent torpedo actions. This already follows from the fact that the provision only applies once the court allegedly exclusively prorogated has been seised, allowing the court first seised until then to decide on its jurisdiction including its derogation. Moreover – following from the principle of mutual trust on which the Brussels I bis Regulation is based – any court must be regarded as equally competent to decide on the jurisdiction agreement. Also, there is no evidence that allegedly derogated courts generally decline jurisdiction. It is rather not unusual that contested jurisdiction agreements are found invalid (see, extensively, Bernard, p. 226 et seqq., p. 476 et seqq.).

Accordingly, neither the breach of an (alleged) exclusive jurisdiction agreement (CJEU, C‑90/22) nor the breach of the rules on lis pendens (CJEU, C-386/17) does constitute a ground for refusal of recognition. It is up to the parties to challenge incorrect decisions using the remedies of the lex fori (which is what the German company did not do regarding the decision of the Madrid court) and accept final (irrevocable) decisions.

Against this background, pursuant to Article 29(3) (which, contrary to Article 29 (1), does not refer to Article 31(2)) the court second seised must decline jurisdiction once the court first seised has finally established jurisdiction, even if the court second seised is allegedly exclusively prorogated.

Contrary to the remark of the German Federal Court of Justice, the party instituting the proceedings before the court second seised is in no way “exposed as before to a torpedo action”. The present situation is by no means a torpedo situation (in which an anticipated action before a competent court is blocked by instituting negative declaratory proceedings before an excessively slow-working court lacking jurisdiction). On the contrary, in the case at hand the court first seised has finally established jurisdiction. Precisely for this reason, the court second seised must decline jurisdiction pursuant to Article 29(3) (Bernard, p. 481 et seq.).

Lastly, the continuation of the proceedings before the court second seised would lead to parallel proceedings (which the system of procedural coordination is intended to prevent) if the court second seised were to consider itself exclusively prorogated. This is because the court first seised would not decline jurisdiction pursuant to Article 31(3) but conduct its proceedings because it has already finally established jurisdiction pursuant to Article 29(3) (Bernard, p. 482).

The Decision of the CJEU: A Possibility to ensure a legally certain Procedural Coordination

Considering the above, it is to be hoped that the CJEU will deny the recognisability of interlocutory decisions by which a court establishes jurisdiction (although the recognition would be preferable to no binding effect at all), while finding Article 29(3) to be applicable. The court second seised would be required to decline jurisdiction as soon as the court first seised has finally established jurisdiction. This would ensure a legally certain procedural coordination that is consistent with the objective of Article 31(2) – the prevention of torpedo actions – as well as the principle of mutual trust on which the Brussels I bis Regulation is founded.

On 12 March 2026, the Court of Justice rendered its judgment in Shipov (C-43/24), concerning the right of citizens of the Union to free movement and national rules on the amendment of gender data in civil-status registers.

The Court held that Article 21 TFEU and Article 4(3) of Directive 2004/38, read in the light of Article 7 of the Charter, preclude national legislation that does not allow a Member State’s national who has exercised free movement to amend gender-related data – including sex, first name, patronymic, family name and personal identification number – recorded in civil-status registers. The Court also ruled that EU law precludes a national court from being bound by the interpretation of national legislation given by the constitutional court of that Member State where that interpretation prevents the recording of such a change and contradicts EU law as interpreted by the Court of Justice.

Facts of the Case

The case arose from proceedings before the Bulgarian courts concerning a Bulgarian national who had been registered as male at birth but had always identified as female. After moving to Italy, where she began hormone therapy and developed a stable personal and family life, she sought before the Bulgarian courts the amendment of her civil-status data.

Her request was rejected by the Bulgarian courts on the ground that Bulgarian law did not provide for a procedure allowing the modification of gender data on the basis of gender identity. According to national case law and a judgment of 26 October 2021 by the Bulgarian Constitutional Court, the notion of “sex” in Bulgarian law must be understood exclusively in its biological sense.

Seised of the case on appeal, the Bulgarian Supreme Court of Cassation referred several questions to the Court of Justice concerning the compatibility of such national rules with EU law.

Judgment

The Court first recalled that matters relating to civil status remain within the competence of the Member States. However, when exercising that competence, Member States must comply with EU law, including the rights derived from Union citizenship and the freedom of movement guaranteed by Article 21 TFEU (para 37).

The Court then observed that refusal to recognise or amend gender identity may hinder the exercise of free movement, since gender identity – like a person’s name – forms part of a person’s identity and civil status. Where a Member State refuses to amend such data, the person concerned may face serious practical difficulties in administrative, professional and private life (para 38).

More specifically, discrepancies between a person’s lived gender identity and the information contained in identity documents may oblige that person to dispel doubts as to their identity whenever they must provide identification, including when travelling or interacting with public authorities (paras 41-44). Such situations are liable to hinder the effective exercise of the rights flowing from Article 21 TFEU (para 44).

The Court acknowledged that restrictions on free movement may be justified by overriding reasons in the public interest, provided they are proportionate (para 45). In the present case, however, the arguments based on the exclusive competence of Member States or on moral or religious considerations could not justify the restriction (para 46).

The Court also emphasised that national measures restricting free movement must comply with the fundamental rights guaranteed by the Charter, in particular the right to respect for private and family life under Article 7 (para 48). That right must be interpreted consistently with Article 8 ECHR (para 49).

Referring to the case law of the European Court of Human Rights, the Court noted that gender identity constitutes one of the most intimate aspects of private life and that States have positive obligations to ensure effective and accessible procedures for legal gender recognition (para 50). Such procedures must allow the amendment of gender-related data on official documents in a quick, transparent and accessible manner (para 51).

Against that background, the Court concluded that national legislation that does not allow the amendment of gender data in the civil-status registers of a national who has exercised free movement is incompatible with Article 7 of the Charter and Article 21 TFEU (para 55).

Lastly, the Court addressed the situation in which a national court is bound by the interpretation of national law given by the constitutional court of its Member State. It recalled that national courts must disapply national rules, including those of constitutional rank, that undermine the effectiveness and unity of EU law (paras 58-60). Consequently, EU law precludes a national court from being bound by an interpretation of national law given by the constitutional court where that interpretation prevents the recording of a change of gender data in contradiction with EU law as interpreted by the Court of Justice (para 64).

Comment

The judgment should be read in the context of the Court’s case law on the relationship between personal status and the EU right to move and reside freely within the territory of the Member States, which has already been discussed on this blog. Over the past years, the Court has progressively developed a line of authority aimed at ensuring that national rules governing personal status do not undermine the effectiveness of Union citizenship and the EU right to free movement.

This approach emerged clearly in Coman (C-673/16), where Article 21(1) TFEU was held to preclude the authorities of a Member State from denying a right of residence to the spouse of a Union citizen solely because that Member State does not recognise same-sex marriage under its national law. The same logic informed Pancharevo (C-490/20), where the Court held that a Member State must recognise a birth certificate issued by another Member State indicating two mothers in order to ensure the child’s effective enjoyment of EU citizenship rights. The case was discussed on this blog by Marta Requejo Isidro on the AG’s Opinion (here), as well as by Johan Meeusen (here) and Nadia Rusinova (here and here). In a similar vein, in K.S. (C-2/21) the Court reiterated that national rules concerning personal status must not compromise the exercise of EU citizenship rights.

More recently, the Court addressed the specific issue of gender identity in Mirin (C-4/23), ruling that EU law preclude a Member State from refusing to recognise a change of first name and gender identity lawfully acquired in another Member State. The AG’s Opinion and the judgment have also been discussed on this blog (here and here) by Helga Luku.

Lastly, related questions have been explored in the online symposium on Cupriak-Trojan (C-713/23), with contributions by Laima Vaigė, Alina Tryfonidou, Elizabeth Stuart Perry, Anna Wysocka-Bar and Marco Pasqua, and a commentary on the AG’s Opinion by Marco Pasqua (here).

At the same time, however, the ruling appears to go somewhat further than previous case law. For this reason, it may be read not only as continuity but also as a possible step in a more evolutionary direction.

Three aspects seem particularly noteworthy.

First, the factual and legal configuration of the case differs from earlier rulings on the circulation of personal status. In previous cases, the Court dealt with situations in which a specific element of personal status had already been lawfully established in another Member State and the issue was whether the Member State of nationality could refuse to recognise it. In the present case, by contrast, the applicant had undergone gender reassignment while residing in another Member State (Italy) but had not obtained formal legal recognition there. The request concerned the possibility of amending the civil-status register in the Member State of nationality (Bulgaria). The issue was therefore not the recognition of a status already established abroad. Nevertheless, the Court approached the situation through the prism of Article 21 TFEU and the effectiveness of Union citizenship, suggesting that obstacles to free movement may arise not only where recognition is refused, but also where the legal framework prevents an individual from securing a civil-status position consistent with their identity.

Second, the judgment places greater emphasis on the positive obligations incumbent upon Member States. While earlier case law mainly concerned the duty to recognise a personal status lawfully established in another Member State, the Court now stresses more clearly that national legal systems must also provide accessible procedures enabling individuals to obtain amendments to civil-status records consistent with their gender identity. In doing so, the Court explicitly relies on the standards developed by the European Court of Human Rights under Article 8 ECHR.

From this perspective, the ruling illustrates a growing alignment between Luxembourg and Strasbourg. At the same time, however, the Court’s reasoning leaves open the question whether EU law adds an autonomous layer of protection beyond the framework already developed under the ECHR.

Third, the reasoning in Shipov signals a shift toward a citizen-centered conception of legal identity. Earlier case law treated cross-border recognition mainly as a technical requirement: the aim was to ensure that a status lawfully established in one Member State was not denied elsewhere. Here, the Court highlights that inconsistencies in civil-status records do not simply impede recognition – they interfere with the individual’s legal identity and daily life within the Union.

In this light, personal status emerges as a core element of the mobile Union citizen’s legal identity, whose coherence must be safeguarded across borders. The ruling thus frames status as a fundamental dimension of EU citizenship, pointing toward a more integrated, identity-sensitive architecture of the European legal space – a perspective that could guide future legislative initiatives in Brussels.

Finally, Shipov seems to illustrate the growing asymmetry between negative and positive integration in EU law: while the Court ensures that personal status in all its aspects moves with the citizen across borders and shapes their identity, the question remains how a corresponding framework might be developed – broadly, one that, within the current competences of Member States, ensures compliance with EU law and the constraints it increasingly entails, whether through coordinated national measures or a more uniform domestic approach.

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University and Linköping University.

On 6 March 2026, the Court of Appeal (CoA) of the Unified Patent Court (UPC) made the UPC’s first-ever reference to the Court of Justice of the European Union (CJEU), including questions on the interpretation of  the Brussels I bis Regulation.

As a court common to several Member States, the UPC is bound by EU law. Article 31 of the UPC Agreement (UPCA) provides that its international jurisdiction is determined by the Brussels I bis Regulation or, where applicable, the Lugano Convention.

Articles 71a–d of the Brussels I bis Regulation were introduced to adapt the Regulation to the UPC, particularly where a defendant is not domiciled in an EU or Lugano state, raising novel and complex jurisdictional issues.

Background

Dyson Technology Ltd. owns a European patent for a hair care appliance with unitary effect across UPC Member States and also validated in Spain, which is not a party to the UPCA.

Dyson brought infringement proceedings before the Hamburg Local Division of the UPC (CFI) seeking provisional measures against several defendants, including Dreame International (Hong Kong), which sells hair appliances via country-specific webshops, and Eurep GmbH (Germany), Dreame’s EU authorised representative. Dyson alleged that several Dreame products infringed its patent and requested a preliminary injunction covering both the UPC territory and Spain.

The CFI granted a preliminary injunction against Dreame International and other defendants for the UPC territory, and against Eurep for providing services facilitating infringement. The injunction also covered Spain with respect to Dreame International and Eurep.

As regards Eurep, the CFI held it had jurisdiction under Article 4 in conjunction with Article 71b(1) of the Brussels I bis Regulation, based on Eurep’s domicile in Germany. Relying in particular on the CJEU’s judgment in BSH Hausgeräte GmbH, the CFI considered this jurisdiction to extend to acts of infringement in Spain.

For Dreame International, the CFI relied on Article 8(1) in conjunction with Article 71b(2) of the Brussels I bis Regulation. It held that the phrase “as appropriate” in Article 71b(2) does not restrict the application of Article 8(1), but merely requires that the conditions of Article 8(1) are met apart from the domicile requirement.

The CFI found that the claims against Eurep (the anchor defendant) and Dreame International were closely connected, particularly because Eurep was mandated to act on Dreame’s behalf in relation to the distribution of the allegedly infringing products in the EU, including Spain.

While acknowledging that appointing an authorised representative in a UPC Member State may expose a non-EU manufacturer to UPC jurisdiction, potentially including claims concerning patents in non-UPCA states, the CFI considered this consequence not unfair given the regulatory role of authorised representatives.

Both sides appealed to the CoA including on the issue of the UPC’s jurisdiction over the alleged infringement of the Spanish patent.

Court of Appeal

While upholding the CFI’s finding that jurisdiction over Eurep extends to Spain, the CoA held that the UPC’s jurisdiction over Dreame International in Spain raises questions of EU law under the Brussels I bis Regulation. It therefore stayed that part of the proceedings and referred questions to the CJEU. (A separate question on the Enforcement Directive is not addressed here.)

The First Question

The CoA indicated that Article 8(1) in conjunction with Article 71b(2) of the Brussels I bis Regulation can apply to a third state defendant where the claims are closely connected and should be heard together to avoid irreconcilable judgments. In this respect, the CoA appears to share the CFI’s view that the wording “as appropriate” in Article 71b(2) adds no additional requirements.

On Article 8(1), the CoA considered that the CJEU’s judgment in Solvay might be relevant. There, the CJEU held that parallel actions against different companies for infringing the same national part of a European patent with the same product may lead to “irreconcilable judgments.” For example, one court might find that Dreame International did not infringe, while another might find that Dreame International did infringe, and used Eurep’s services.

However, the CoA noted that Article 8(1) requires more than divergent outcomes: the divergence must arise from the same situation of fact and law. It questioned whether this condition is met, since Dreame International is alleged to infringe the patent, while Eurep merely provides services facilitating the alleged infringement. Although the intermediary’s liability depends on the infringer’s conduct, the legal situations are not identical. The CoA therefore suggested that while an alleged infringer may serve as an anchor defendant for claims against an intermediary, the reverse does not necessarily follow.

The CoA’s first question to the CJEU is:

“Must Article 8(1) in conjunction with Article 71b(2) of Regulation 1215/2012 be interpreted as meaning that a situation where, in proceedings before a common court within the meaning of Article 71a(2) of Regulation 1215/2012, a first company that is established in a third State is alleged to have committed an infringement of a national part of a European patent which is in force in an EU Member State that is not party to the instrument establishing the common court, and a second company that is established in an EU Member State that is party to the instrument establishing the common court is alleged to be an intermediary whose services are used by the first company to infringe in the EU Member State that is not party to the instrument establishing the common court, is capable of leading to “irreconcilable judgments” resulting from separate proceedings as referred to in Article 8(1) Regulation 1215/2012?”

The Second and Third Questions 

The CoA further considered whether jurisdiction to grant provisional measures against Dreame International could instead derive from the second sentence of Article 71b(2), which allows the UPC to order such measures even where courts of a third State have jurisdiction over the substance. The CoA viewed this provision as conferring jurisdiction on the UPC in a manner comparable to Article 35 of the Brussels I bis Regulation. However, like Article 35, it would require a “real connecting link” between the measures sought and the UPC’s territorial jurisdiction.

The CoA suggested such a link might exist because the measures concern not only Spain but also UPC Member States, and because the alleged infringements involve the same products offered across EU markets via largely identical websites, with Dreame International using an intermediary established in a UPC Member State.

It also noted that the CJEU’s judgment in Solvay implicitly accepted provisional measures with cross-border effects. In that case, two companies from different Member States were separately accused, before a court in one of those states, of infringing the same national part of a European patent in force in a third Member State by acts relating to the same product.

At the same time, recital 33 of the Brussels I bis Regulation appears to suggest that such measures should normally be limited to the territory of the court granting them.

The CoA’s second and third questions to the CJEU are:

“2. Must Article 71b(2), second sentence, of Regulation 1215/2012 be interpreted as meaning that a common court has jurisdiction in relation to an action for provisional measures against a company established in a third State that is alleged to have infringed a European patent in force in an EU Member State that is not party to the instrument establishing the common court, and in some or all EU Member States that are party to the instrument establishing the common court by offering the same products in all those EU Member States through websites that are identical apart from the language?

3. Is the fact that the company uses the services of a company that is established in an EU Member State that is party to the instrument establishing the common court in order to infringe a relevant circumstance in answering this second question?”

Comment

The CoA’s reluctance to apply Article 8(1) where the anchor defendant is merely an intermediary echoes Dutch courts’ former “spider in the web” doctrine for parallel infringements of patents. That doctrine limited anchor jurisdiction to the courts of the Member State where the main defendant (the actor coordinating the infringing conduct) was domiciled. Although later rejected by the CJEU in Roche, its underlying logic suggests that the anchor defendant should direct the infringement. In this case, that role appears to lie with Dreame International rather than Eurep, the intermediary.

If the CJEU accepts the CFI’s approach, any intermediary in a Member State could serve as an anchor defendant, enabling claimants to sue foreign defendants before courts with only a weak connection to the dispute. This risk of forum shopping could be mitigated by interpreting the “close connection” requirement in Article 8(1) more restrictively.

Additionally, the issue might be addressed through Article 71b(2), which in some language versions provides that Chapter II jurisdictional bases apply “as appropriate.” This could mean either that certain bases are generally unsuitable for patent disputes, or that courts must assess their appropriateness case by case.

For example, if a Turkish manufacturer allegedly infringes German and Spanish patents through a German distributor, applying Article 8(1) may be reasonable: the defendant would in any event face litigation within the EU. But if the Spanish patent were replaced by a Turkish patent, the UPC could end up adjudicating alleged infringement in Turkey solely because of related conduct in Germany. From the perspective of international comity, such an outcome would be controversial and could amount to a new form of long-arm jurisdiction over non-EU defendants, potentially even broader than that under Article 71b(3).

This month starts with the publication, on Thursday 5 March, of Advocate General R. Norkus’s opinion in case C-716/24, Ponner, on the interpretation of the EAPO Regulation (Regulation 655/2014 establishing a European Account Preservation Order procedure), upon request fom the Oberlandesgericht Frankfurt am Main (Germany). A hearing took place last December – see here. N. Jääskinen is the reporting judge in a chamber of five judges.

One week later, on Thursday 12 March, the Court will hand down the judgment in case C-516/24, Winderwill. The single question referred to the Court by the Amtsgericht Schleswig (Germany) concerns the interpretation of the Maintenance Regulation. A hearing took place on June 2025 – see here. Advocate general R. Norkus delivered his opinion last October, proposing the Court to answer that

an application for legal aid, to which the 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, is not an ‘equivalent document’ within the meaning of Article 9(a) of [the Maintenance Regulation].

The judgment corresponds to a chamber composed of five judges, with O. Spineanu-Matei reporting.

On March 18th, the Court will host a hearing in case C-300/25, Duftošek. In its request for a preliminary ruling, the Nejvyšší soud (Czech Republic) is asking the Court to rule for the first time on Regulation 2016/1103 on matrimonial property regimes:

Do proceedings for the dissolution and liquidation of joint ownership interests in an immoveable property, acquired by the spouses as joint ownership interests as a result of an agreed separate property regime, constitute proceedings on a matrimonial property regime within the meaning of Articles 1 and 3(1)(a) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes?

The case concerns a dispute about the dissolution and liquidation of joint ownership interests in immovable property, where each of the parties is, as claimed by the applicant, the owner of an ideal half of a complex of immovable properties that form part of a residential building in the French Republic. The properties at stake were acquired by the applicant and the defendant as joint ownership interests during the marriage (now dissolved) under the arrangement of a separate property regime. The decision about the international jurisdiction of the courts depends on which regulation applies to proceedings on the dissolution and liquidation of joint ownership interests in property, if that property was acquired in circunstances like the ones in the case at hand.

The request has been assigned to a chamber of five judges – O. Spineanu-Matei acting as reporting judge- , with the support of an opinion by Advocate general J. Richard de la Tour.

On Thursday 19 March, the Court will announce its decision on case C-43/25, SML Maschinen, a request for a preliminary ruling on regulation 1346/2000 and the Rome I regulation. The main proceeding concerns two companies, SML (established in Austria), and MAPLAN (established in Germany) belonging to the same group. Insolvency proceedings were opened against MAPLAN on 1 October 2016. Following the opening, SML filed a claim with the Landgericht Schwerin (Regional Court of Schwerin, Germany) requesting that the claims arising from two loans she had granted to MAPLAN be included in the liabilities of the bankruptcy, as MAPLAN has not repaid the entirety of these loans. It also claimed a preferential right over the claims assigned. The insolvency administrator contested these claims and filed a counterclaim seeking, by way of an avoidance action, the return of the principal and interest that MAPLAN had paid to SML in respect of the two loans, plus interest.

The Landgericht (Regional Court) dismissed SML’s action and upheld the counterclaim. The applicant’s appeal was unsuccessful. By the appeal on a point of law which the appeal court granted leave to be brought, the applicant is pursuing in full the forms of order originally sought. The Bundesgerichtshof, which is the referring court, has doubts regarding the law applicable to the avoidance action brought by the insolvency administrator. In particular, it considers that the solution to this action requires clarification of the interpretation of Article 13 of regulation 1346/2000:

1. Is Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (‘EU Insolvency Regulation, old version’) to be interpreted as meaning that the person who benefited from an act detrimental to all the creditors can rely on the effects of that provision as against a recovery demand by the liquidator even if the recovery demand is intended to enforce the lower ranking laid down in the applicable law of the State of the opening of proceedings (point (i) of the second phrase of Article 4(2) of the EU Insolvency Regulation, old version)?
2. If Question 1 is answered in the affirmative: Is Article 13 of the EU Insolvency Regulation, old version, to be interpreted as meaning that that provision also applies to grounds for avoidance intended to treat loans granted by a shareholder of a company limited by shares prior to the insolvency in order to secure the financial resources of the company largely in the same way as liable equity capital?

3. If Question 2 is answered in the affirmative: Is Article 13 of the EU Insolvency Regulation, old version, to be interpreted as meaning that the law applicable to a loan granted by a shareholder of a company limited by shares to the company is determined in accordance with company law?

4. If Question 3 is answered in the negative: Is Article 9(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations applicable to the relevant law to be determined in accordance with Article 13 of the EU Insolvency Regulation, old version, and to be interpreted as meaning that overriding mandatory provisions may also be contained in rules of contract law laid down in national insolvency provisions – such as those regarding the lower ranking of shareholder loans and the legal consequences of their lower ranking?

The decision will be handed down by a chamber of three judges, with K. Jürimäe reporting. No opinion was considered necessary.

Outside the core domain of PIL, two cases may also be of interest for the readers of this blog. The first one is C-43/24, Shipov, to which Marco Pasqua referred here. A hearing took place last year in May. For the record, the Varhoven kasatsionen sad (Supreme Court, Bulgaria) is asking, among others, 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 1 and C 490/20 2 in relation to the application of Directive 2004/38/EC 3 and Article 21(1) TFEU9, 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?

In his opinion delivered on 4 September 2025, Advocate general J. Richard de la Tour had proposed the Court to rule that EU law precludes national legislation which does not allow the legal recognition of gender identity for its nationals, including in the absence of gender reassignment surgery, or permit changes to their name or personal identification number to be legally recognised. It also precludes national legislation that does not allow those changes to be entered in their birth certificate, since a change to the statements contained in their identity documents depends on such an entry. The judgment, by a chamber of five judges with K. Jürimäe reporting, will be published on Thursday 12.

The second request, C-530/24, Tipico, has been sent to the Court by the Bundesgerichtshof in the context of a dispute between an individual having made use of the services provided on line by defendant, Tipico Co. Ltd., a company established in Malta which offers online sports betting services in Germany. Under German law, prior authorisation in the form of a licence was required for the provision of such services. During the period relevant to the main proceedings, Tipico was operating without authorisation.

The request raises the question whether the principle established in the Court’s case law, according to which EU law precludes a Member State from imposing penalties on providers of gambling services operating without authorisation where it has been established that the procedure for granting such authorisations is incompatible with EU law, implies that EU law precludes as well the activity carried out by such providers is considered to be non-compliant with national legislation and, consequently, that contracts concluded between that provider and players are rendered void and that a player is reimbursed.

The opinion by Advocate general N. Emiliou is expected on 19 March.

Advocate General Spielmann’s opinion in case C-876/24, Vueling Airlines (Juridiction compétente en cas de contrat en ligne de transport aérien national) will be published on Thursday 26th. The Court of First Instance No 1, Fuenlabrada, Spain, has referred the following questions to the Court of Justice:

First. Must Article 3(1) of 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 (OJ 1997 L 285, p. 1), as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (OJ 2002 L 140, p. 2)] 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 [Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 and approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38] in the case of carriage within a Member State of the European Union?

Second. 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?

Third. 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?

At stake is, therefore, whether Article 33 of the Montreal Convention applies to air transport within a single Member State, regulating the allocation of territorial jurisdiction between courts within the same Member State. Also, whether, in the case of an online sales contract, the claimant’s domicile is to be considered as the place where the air carrier has an establishment through which the contract was concluded.

The main proceedings concern I.G.V., on the one hand, and the carrier Vueling Airlines, S.A. (‘Vueling’, an air carrier having its registered office in Viladecans Barcelona), on the other, in relation to a claim for compensation for the damage caused by the loss of baggage during carriage by air.

I.G.V. entered into an air transport contract with Vueling, for a flight from Madrid airport to Barcelona airport, on 8 November 2023. The baggage was lost during that this leg of her journey. Unable to afford to wait for the luggage in Barcelona any longer, I.G.V. took a second, connecting flight to Rome. I.G.V. 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), and therefore the national 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.

I.G.V. entered into the air transport contract online, from her home in Fuenlabrada (Spain). As a service in addition to the flight, she paid, in person and at the Madrid airport itself, to check in the baggage that was later lost.

The case has been assigned to a chamber of five judges, with M. Fenger reporting .

This post was written by Giacomo Marola (PhD).

As announced on this blog, on 5 February 2026 Advocate General (AG) A. Rantos delivered his Opinion in Case C-232/25, Idziski, following a request for a preliminary ruling from the Polish Supreme Court.

The case concerns the interpretation of Article 5(3) of the Brussels I Regulation (now Article 7(2) of the Brussels I bis Regulation) in proceedings relating to the alleged infringement of both collective and individual rights, such as the rights to “national identity” and “dignity and reputation”, which Polish case law, on the basis of Article 23 of the Polish Civil Code, qualifies as “personality rights”.

As such, the Court’s ruling expected in Idziski will add one more piece to a thirty-year-long line of case law, from Shevill to eDate Advertising, Bolagsupplysningen, Mittelbayerischer, and Gtflix.

Facts of the Case

The preliminary reference arose from a dispute before the Polish courts brought by Z.R., a Polish resident and former member of a military organisation involved in the Polish resistance during the Nazi occupation of World War II (“the X military unit”), and by Ś., an association representing former soldiers of that unit, against two German co-producers of a TV series (“U.” and “Z.”).

Although the parties’ names are anonymised, the context suggests that the series is “Unsere Mütter, unsere Väter” (internationally known as “Generation War”) and that the military organisation concerned is the “Armia Krajowa”. Set during World War II, the series also depicts events in Nazi-occupied Poland and includes portrayals of the Armia Krajowa.

According to the plaintiffs, the series portrayed the soldiers of the X military unit as antisemitic, nationalistic, and complicit in the Holocaust, allegedly infringing their personality rights under Polish law, such as their right to a national identity, an undistorted historical record, and dignity and reputation.

The series was broadcast on Polish television and in several other Member States, and was also made available online, either in full or in excerpts.

Proceedings at National Level and the Questions Referred

Z.R. and Ś. brought an action before the Polish courts seeking compensation for non-pecuniary harm and injunctive relief. They requested that the defendants be ordered to: (i) publish an apology on Polish television and relevant channels in other Member States; (ii) authorise the plaintiffs to publish the apology themselves if the defendants fail to do so; (iii) publish an apology on two websites; (iv) stop displaying the symbol of the X military unit in the series; and (v) display a specified introductory text before any broadcast.

At first instance, the Kraków Regional Court dismissed the defendants’ objection to Polish jurisdiction and upheld most of the plaintiffs’ claims. The Kraków Court of Appeal confirmed jurisdiction and partially amended the first-instance judgment. Both parties subsequently filed appeals before the Polish Supreme Court.

Having doubts as to the interpretation of “the place where the harmful event occurred” within the meaning of Article 5(3) of the Brussels I Regulation, the Polish Supreme Court decided to stay the proceedings and referred two questions to the Court of Justice for a preliminary ruling.

By its first question, the Supreme Court asked whether Polish courts have jurisdiction over all the plaintiffs’ claims on the basis of the “victim’s centre of interests” ground of jurisdiction, as recognised by the Court of Justice in eDate, taking into account that: (i) the series was broadcast in Poland; (ii) the plaintiffs have their centre of interests in Poland; (iii) one plaintiff is a former member of the X military unit and the other is an association of former members, while the series allegedly infringes their personality rights in portraying that unit; and (iv) the series’ content is of significant importance in Poland.

By its second question, the Supreme Court asked whether, if the first question is answered negatively, Polish courts should nonetheless have jurisdiction to award compensation for the harm caused by the broadcast in Poland, and to order injunctive remedies with effects limited to that Member State.

The Opinion of AG Rantos: A Quest for Judicial Continuity

Based on a careful review of the Court of Justice’s case law, AG Rantos answered the first question negatively and the second affirmatively. He thus concluded that the Polish courts do not have “full” jurisdiction based on the “victim’s centre of interests”, but they do have “mosaic” jurisdiction based on the broadcasting or accessibility of the series in Poland. According to the AG, that jurisdiction covers both compensation and the requested injunctive remedies, provided that their effects are confined to Polish territory.

Overall, as noted by Geert Van Calster, AG Rantos’ Opinion reveals a reasonable and commendable concern for preserving coherence with the existing Court of Justice’s case law. This concern is articulated most clearly in the Opinion’s concluding part, where the AG observes that “the Court’s current case-law is well settled and a broad interpretation of a derogating provision, Article 5(3) of Regulation No 44/2001 in this case, could create more problems than it solves” (para. 80).

At this stage, the emphasis on judicial continuity and self-restraint is both welcome and persuasive. With the debate over the forthcoming reform of the Brussels I bis Regulation already underway, a creative judicial intervention revisiting a body of case law consolidated over more than three decades could create legal uncertainty and risk pre-empting or unduly constraining future legislative choices in this politically, judicially, and doctrinally sensitive area.

A Settled Body of Case Law Still Open to Reconsideration?

That said, it remains to be seen whether the Court of Justice will follow the AG’s cautious approach or seize the opportunity to revisit its settled interpretation of the forum delicti in personality rights disputes.

Although revisiting the existing case law at this stage would be undesirable, it is not entirely unlikely. On one hand, the Court has recently shown a willingness to adopt innovative interpretative approaches in adjacent fields, as illustrated by its case law on Article 7(2) in Case C-34/24, Apple Store Nederland (see further on this blog here and here). On the other hand, the present case raises structurally significant issues, for which the temptation to recalibrate the existing interpretative solutions cannot be dismissed.

Indeed, in light of the existing case law, Idziski raises significant questions concerning five key aspects.

What Counts as “Rights Relating to Personality”?

First, the case raises questions about what exactly constitutes “rights relating to personality”. Divergent conceptions of this notion exist across the EU Member States. Following Mittelbayerischer, Idziski illustrates that in the EU, particularly in Poland, such rights are not confined to first-generation individual rights like reputation or privacy, but may also encompass collective rights or interests, such as the protection of national identity.

This raises the question of whether such rights or interests should be characterised as “rights relating to personality” for the purposes of EU private international law. In light of Mittelbayerischer, the answer appears affirmative. The issue of characterisation, however, is clearly more relevant at the choice-of-law stage than at the jurisdictional stage. Notably, the notion of “rights relating to personality” is expressly referred to in Article 1(2)(g) of the Rome II Regulation, without reference to national law. By contrast, the concept does not appear in the Brussels I Regulation, although it is mentioned in Recital 16 of the Brussels I bis Regulation.

In any event, the problem of characterisation cannot be regarded as entirely irrelevant at the jurisdictional stage under Article 5(3) of the Brussels I Regulation. Settled case law of the Court of Justice confirms that “the place where the alleged damage occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed” (Pinckney, para. 32).

Shevill or eDate? Jurisdiction in Cases of Parallel Publication

Second, the Idziski case highlights the ongoing uncertainties about the boundaries between the Shevill and eDatejurisdictional rules, particularly for content published simultaneously online and offline (so-called “parallel publications”).

In this respect, the Polish Supreme Court advanced three arguments supporting the exclusive application of eDate to the present case. First, the rise of streaming and on-demand audiovisual services blurs the distinction between TV and online dissemination. Second, geolocation technologies can limit the territorial reach of online content. Third, applying different rules to online and offline versions of the same content would fragment litigation and undermine the proper administration of justice.

Against this background, AG Rantos argued that, under the principle of tempus regit actum, EU law must be interpreted in light of the technological context at the time of the relevant facts (before 2015);  subsequent technological developments are irrelevant for the present case.

On this basis, the AG first argued that TV broadcasting, unlike online publishing, typically has a regional scope and is not designed to ensure the “ubiquity” of content. Accordingly, the condition justifying the Court’s eDate standard for online content is not met for TV broadcasting. Furthermore, he noted that applying eDate systematically in cases of parallel publication would not necessarily enhance legal certainty, since the applicable jurisdiction framework would then depend on the discretionary choices of individual producers in deciding whether to disseminate the contested content online and offline. Finally, the availability of geolocation technologies, and the resulting partitioning of the Internet along national borders, supports the conclusion that the Shevill framework should apply in the present case.

Hence, according to AG Rantos, online broadcasting falls under the eDate approach, whereas television broadcasting falls under Shevill. This bifurcation may give rise to legal uncertainty, parallel proceedings, and conflicting judgments. However, it appears to be an almost inevitable consequence of the eDate approach, which differentiates jurisdiction according to the medium through which personality rights are infringed.

Since eDate, the Court of Justice has justified the bifurcation of jurisdictional rules by reference to the “ubiquity” of the Internet. The insistence on ubiquity reflects conventional wisdom from early cyberspace literature of the late 1990s. However, this view no longer fully reflects the realities of the contemporary Internet. The assumption that online content is necessarily global overlooks the widespread use of geolocation technologies and the increasing territorialisation of online services. At the same time, the Internet’s pervasive presence in virtually all aspects of private and social life, driven by smartphones, social media, and IoT devices, has increasingly blurred the line between online and offline activities.

In any event, the perception of the Internet as “ubiquitous” may reflect how it was commonly understood and represented in 2015. From this perspective, Idziski does not appear to provide an ideal opportunity for the Court to reconsider or overturn prior case law, particularly since the Court has continuously invoked the “ubiquity” rationale also after 2015, most recently in Gtflix (2021). Any recalibration of the current jurisdictional framework could likely be better achieved by the legislator in the forthcoming recast of the Brussels I bis Regulation.

The Requirement of “Individual Identification” after Mittelbayerischer

Thirdly, Idziski raises questions about when jurisdiction based on the “victim’s centre of interests” is available, in light ofMittelbayerischer.

In that judgment, the Court of Justice held that a victim cannot rely on jurisdiction at their centre of interests if they are not individually identified, directly or indirectly, in the harmful content.

Against this background, the Polish Supreme Court noted that, unlike in Mittelbayerischer, the TV series at issue focuses on a small, closed group of individuals, the soldiers of unit X, so that its members could largely be identified individually.

AG Rantos, however, took the view that the applicants cannot be regarded as individually identified within the meaning of Mittelbayerischer. The characters in the TV series are fictional, so Z.R. is not mentioned either expressly or implicitly. Moreover, the Ś. was established several decades after World War II. AG Rantos also notes that the Ś. currently has around 5,000 members, and the centres of interest of individuals from the X military unit could be located in any EU Member State.

AG Rantos is probably correct in arguing that, in Idziski, the plaintiffs are not sufficiently individually identified within the meaning of Mittelbayerischer. Yet the case illustrates how the requirement of individual identification can create uncertainties in practice. As AG Bobek argued in Mittelbayerischer, distinguishing content on this basis overlooks the wide variety of harmful information and the differing degrees of individualisation of potential recipients. From a policy perspective, the referring court rightly observed that excluding jurisdiction when the victim is not individually identified favours authors who publish stigmatising messages about a group. Under current case law, such authors could only be sued for all the harm caused in the place of their own establishment or domicile.

Objective Factors and the “Victim’s Centre of Interests”

Fourth, Idziski gives the Court of Justice an opportunity to clarify the role of objective factors in analysing jurisdiction based on the “victim’s centre of interests”, namely those relating to the content and context of the harmful information (e.g., the language of the content, its relevance in the forum State, etc.).

In eDate, the Court endorsed a distinctly subjective construction of the “victim’s centre of interests”. Subsequent judgments, however, have given some weight to objective factors. Notably, in Bolagsupplysningen, the Court held that the courts of the plaintiff’s centre of interests were best placed to adjudicate because the reputational harm arose from content published on “a professional site managed” in that Member State and written in a “language” intended “to be understood by people living in that Member State”. Similarly, in Mittelbayerischer, the Court emphasised that the link between the dispute and the forum in personality rights cases should not rest solely on subjective factors but also on objective elements. Nevertheless, the Court has so far abstained from formally incorporating these factors into the “victim’s centre of interests” ground of jurisdiction.

By contrast, under the “mosaic” jurisdiction, in Gtflix the Court categorically refused to assign relevance to any objective elements beyond the mere accessibility of the harmful content in the forum. The Court reasoned that making jurisdiction dependent on “additional conditions, such as requiring that the activity concerned be ‘directed to’ the Member State in which the court seised is situated”, could “lead … to the de facto exclusion” of the plaintiff’s option to sue in any Member State where the content is accessible. A person claiming harm to personality “must always” be able to bring proceedings before the courts of the place where the damage occurred.

Against this background, in Idziski, the Polish Supreme Court argues that, when the alleged victim is not individually identified in the harmful content, it would be appropriate to consider, alongside the victim’s centre of interests, whether the content has “objectively considerable importance” in the forum State. On this basis, the referring court contends that the series’ plot, and the Polish thread in particular, is clearly of considerable importance for the Polish public.

On this issue, AG Rantos maintains that no weight should be given to objective factors in the jurisdictional analysis under the “victim’s centre of interests”. He recalls that, according to settled case law, the “place of the damage” under Article 5(3) of the Brussels I Regulation covers only “the place where the event giving rise to the damage … directly produced its harmful effects upon the person who is the immediate victim” (Dumez, para. 20). Moreover, in line with the Court of Justice’s reasoning in Gtflix on the irrelevance of objective factors under “mosaic” jurisdiction, the AG argues that considering such factors “could be unfavourable” for the victim.

It remains to be seen whether, in Idziski, the Court will seize the opportunity to clarify the role of objective factors in the jurisdictional analysis based on the “victim’s centre of interests”.

“Mosaic” Jurisdiction and the Availability of Injunctive Relief

Finally, Idziski raises the question of whether, in personality rights disputes, courts with “mosaic” jurisdiction may grant injunctive relief whose effects are confined to the forum State.

Starting with Bolagsupplysningen, the Court held that, in online personality rights cases, courts with “mosaic” jurisdiction may award territorially “divisible” remedies, like compensation, but cannot order territorially “indivisible” remedies, such as rectification or removal of online content.

Although often equated with the distinction between “compensation” and “injunctive relief”, the exact scope of “divisible” versus “indivisible” remedies remains partially unclear and rests on relatively weak grounds.

Assuming that compensation for personality harm can be precisely apportioned across national borders overlooks the practical difficulties courts face in quantifying such harm. Conversely, treating injunctions against online platforms as necessarily territorially “indivisible” ignores geolocation technologies, which can, in principle, restrict access or removal of content to specific territories.

In Idziski, the Polish Supreme Court notes that the plaintiffs do not seek the rectification or removal of online content, but preventive and reparatory injunctions for TV and online broadcasts, such as publishing apologies or including an introductory text before any broadcast. The Court holds that if national law allows these remedies to be confined to Poland, “mosaic” jurisdiction should be upheld.

AG Rantos agrees with the Polish Supreme Court. Since TV broadcasting typically has a national scope, injunctions such as publishing an apology on TV can be effectively confined to Polish channels. For online dissemination, he suggests that, if permitted by national law, courts could require the apology to appear via another medium limited to Poland, such as the written press or national television, or to address only the effects of the infringement within that State. Surprisingly, AG Rantos does not mention geolocation technologies, which are the most common way to prevent online injunctions from “spilling over” beyond the forum State.

In any event, it is submitted that the Court of Justice should carefully evaluate whether, in personality rights disputes, courts with “mosaic” jurisdiction should be allowed to issue injunctions against online content such as those sought in Idziski. Permitting such injunctions could increase the use of “mosaic” jurisdiction, thereby raising the risks of forum shopping, fragmented litigation, and further segmentation of the Internet along national borders within the EU internal market. Moreover, in practice, national courts would often need to assess, as a precondition for jurisdiction, whether online publishers can implement geolocation technologies accurate enough to prevent injunctions from “spilling over” beyond the forum State. Such an assessment would be difficult to reconcile with the settled case law principle that a court seised on the basis of the forum delicti must “be able readily to decide whether it has jurisdiction” (Kolassa, para. 61).

The author of this post is Caterina Benini, post-doctoral researcher and adjunct professor at the Catholic University of the Sacred Heart in Milan.

Climate change litigation is relatively rare in Italy. Only a few months ago, the Italian Supreme Court issued its first ruling in a climate change-related lawsuit brought against a corporation.

By a decision of 21 July 2025 (order No 20381), the Joint Chambers of the Court held that Italian courts have jurisdiction to entertain an action brought by individuals and NGOs seeking damages from a company based in Italy and its majority shareholders.

Background

In 2023, two NGOs, Greenpeace and ReCommons, together with twelve individuals domiciled in Italy, initiated proceedings before the Tribunal of Rome against ENI SpA (ENI). ENI is an Italian multinational oil and gas company. It is the the head of the ENI group (ENI Group), whose exploration, development and extraction activities are carried out in 37 countries, including Italy, Cyprus, Libya, Kenya, Indonesia, Oman, Russia, Mexico and Australia. The ENI Group is responsible for 0,6 % of global cumulative emissions from the industrial revolution until today and is ranked 30th among the so-called Global Carbon Majors.

The claimants alleged that ENI failed to adopt emissions reduction plans consistent with the internationally recognised objective of limiting global temperature increase to 1,5 °C. To support the claim, they relied inter alia on ENI’s decarbonisation plan for 2050, which envisages a reduction of only 35% of emissions by 2030 while simultaneously providing for an annual increase in oil production by 3-4%. Under this plan, the oil production would rise from the current level of 1,7 million barrels per day to 1,9 million barrels per day by 2026.

The action was also brought against ENI’s majority shareholders, namely the Italian Ministry of Economy and Finance (MEF) and Cassa Depositi Prestiti (CDP), an Italian public development bank controlled by MEF. According to the claimants, MEF and CDP contributed to ENI’s failure by omitting to exercise their shareholders’ powers to steer the company’s management towards more climate-friendly objectives.

The claimants argued that the defendants, through their climate-altering conduct, contributed to climate change and its adverse effects which are at the origin of the impairment of their right to life, health, and a healthy environment, as protected under the Italian Constitution (Articles 2, 9, 32, and 41), the European Convention on Human Rights (Articles 2 and 8), and the Charter of Fundamental Rights of the European Union (Articles 2 and 7).

On this basis, the claimants sought (i) a declaration that the defendants are jointly liable for ENI’s failure to comply with its climate-related obligations deriving, in particular, from the UN Framework Convention on Climate Change and the Paris Agreement; (ii) compensation for both pecuniary and non-pecuniary damages they suffered because of such failure; (iii) an order that ENI reduce its annual volume of greenhouse gases (“GHG”) emissions, and (iv) an order that MEF and CDP adopt a policy defining and monitoring ENI’s climate targets.

Substantively, the action was grounded on Articles 2043 and 2050 of the Italian Civil Code, concerning, respectively, tort liability and tort liability for hazardous activities. From a private international law perspective, the claimants contended that Italian courts are jurisdictionally competent based on Article 4(1) of the Brussels I bis Regulation, being the defendants all domiciled in Italy.

The defendants challenged the jurisdiction of the Tribunal of Rome. Of interest to this analysis is the defendants’ argument that, since the claimants grounded ENI’s liability on GHG emissions produced in 37 different countries, the Tribunal of Rome lacked jurisdiction under Article 7(2) of the Brussels I bis Regulation on the ground that the alleged conduct had, at least in part, occurred in countries other than Italy. ENI further argued that the conducts complained of could not be attributed to ENI, since they were carried out by companies belonging to the ENI Group, which are legally autonomous and independent entities.

Following such objections, the claimants availed themselves of the possibility granted by Article 41 of the Italian Code of Civil Procedure of seizing the Supreme Court for a final determination on the issue of jurisdiction. The proceedings before the Tribunal of Rome were stayed as a result.

The Supreme Court’s Order

By its order of July 2025, the Supreme Court dismissed the challenges raised by the defendants and ruled that Italian courts have jurisdiction to adjudicate the claim.

At the outset, the Court clarified that the claimants sought to have a declaration that the defendants are liable in tort for the damages caused by ENI’s failure to adopt all necessary measures to reduce the overall amount of GHG emissions released into the atmosphere in the course of its direct and indirect commercial and industrial activities. These activities, the claimants argued, included not only those carried out directly by ENI, but also those conducted through its subsidiaries.

This feature allowed the Supreme Court to distinguish the present case from another case, emphatically known in the Italian media under the name Giudizio Universale (the “Last Judgment”), which was brought against the Italian government before the Tribunal of Rome in 2021 and was dismissed as inadmissible in 2024. In Giudizio Universale, the claimants sought to compel the government to revise its climate legislation and policies, thereby infringing the principle of separation of powers. By contrast, the present case concerned a “mere action for damages”, which the Court considered “justiciable”, i.e., amenable to judicial review.

Turning to jurisdiction, the Supreme Court observed that the claimants did not seek to hold ENI’s subsidiaries directly liable for climate-altering activities carried out abroad. Rather, they sought to hold ENI, as the parent company, liable for the activities of the ENI Group as a whole. The alleged liability of the parent company – the Supreme Court observed – arises from the fact that, in the claimants’ view, ENI, in its capacity as parent company, failed to adopt a commercial and industrial plan applicable to the entire group which would ensure a reduction in GHG emissions.

Noting that the alleged liability arose from climate-altering conduct partly occurring outside Italy, the Supreme Court held that the jurisdiction of the Tribunal of Rome shall be assessed both under Article 4(1) (whereby persons domiciled in a Member State can be sued in the courts of that Member State) and Article 7(2) of the Brussels I bis Regulation (which confers jurisdiction in matters relating to tort on the courts of the place where the harmful event occurred or may occur). Despite mentioning the two provisions, the Court’s reasoning is centred on Article 7(2).

The Supreme Court recalled the case law of the Court of Justice, inaugurated by Mines de Potasse d’Alsace, whereby the term “harmful event” must be understood to comprise both the event giving rise to the damage and the damage, meaning that claimants may rely on Article 7(2) to bring their proceedings, at their choice, in either location.

The Court recognised that climate-altering activities, while occurring at the sites of production, transportation, and commercialisation of fossil fuels, are inherently diffuse in nature, as their effects contribute to global warming in the atmosphere as a whole.

With regard to the place where the damage occurred, the Court held that this should be localised at the claimants’ place of residence, namely Italy. According to the Court, this is where the claimants’ life expectancy, health conditions, and overall quality of life were adversely affected by climate change, and where they suffered individual, concrete, and actual harm to their legally protected interests.

As for the event giving rise to the damage, the Court ruled that it occurred in all places where GHG emissions were released in the atmosphere by ENI, either directly or through its subsidiaries. In the Court’s view, this means that the courts of several Member States have, in principle, jurisdiction under Article 7(2). These include Italian courts, since emissions were also produced in Italy.

The Court further noted that the claimants had identified the starting point of the causal chain in ENI’s industrial and commercial strategy of not reducing GHG emissions across the ENI Group. Since a decision of this type – the Court argued – is generally taken by ENI’s governing bodies, which operate at ENI’s registered office and operational headquarters in Rome, Italy, this entails that also the event giving rise to the damage can be localised in Italy. On this basis, the Court confirmed the jurisdiction of Italian courts under Article 7(2).

Finally, the Court declined to rule on whether ENI could be responsible for emissions produced by its subsidiaries. This issue, relating to corporate personhood, was held to concern the merits of the case and therefore fell outside its assessment on the jurisdiction of the seised court.

Comment

The decision was eagerly awaited by Italian scholars and NGOs. Nevertheless, the Supreme Court’s approach to matters of jurisdiction has largely fallen short of expectations.

Several aspects of the ruling appear problematic.

First, the Court contented itself to mentioning Article 4(1) of the Brussels I bis Regulation, but basically failed to apply it. This omission is difficult to justify. Article 4(1) provides that persons domiciled in a Member State may be sued in the courts of that Member State. Its application was rather straightforward in this case, as all the defendants were domiciled in Italy. The Court’s analysis should have begun and ended there. Instead, as observed, the Court focused almost exclusively on Article 7(2). The reasons for this choice are not stated in the Court’s order.

Both the choice of relying on Article 7(2) and the way in which Article 7(2) was applied by the Court are unconvincing.

As regards the first point, the Court failed to consider that Article 7(2) was simply inapplicable to the case. This provision applies in proceedings initiated in a Member State against a person domiciled in another Member State. This was not the situation at hand. Article 7(2) had thus no role to play from the outset.

The issues surrounding the interpretation and application of Article 7(2) warrant a more elaborate analysis.

Regrettably, the Court did not clearly identify what it considered to be the “event giving rise to the damage”. As described above, the Court initially appeared to regard the climate-altering emissions occurring in 37 different countries as the relevant event, only to later characterise the parent company’s decision not to reduce GHG emissions across the ENI Group as such. The overall impression is that the Court sought to demonstrate that the Tribunal of Rome would possess jurisdiction over the case no matter which conduct represents, in the circumstances, the event giving rise to the damage.

By adopting this approach, the Court missed an opportunity to clarify a critical issue likely to recur in current and future climate change litigation. In many such cases, claimants argue that a corporation’s decision not to reduce GHG emissions constitutes a negligent omission. This also appears to have been the claimants’ position in the present case, where their submissions largely emphasised ENI’s failure to reduce emissions to the extent that a reasonable operator would have done under similar circumstances.

This raises the following question: should a corporation’s decision not to reduce GHG emissions be regarded as a genuine omission, or rather as a negligent commissive act consisting in the emission of GHGs beyond the level required by the relevant duty of care? And first and foremost, does this distinction matter for private international law? Or should the characterisation of the event giving rise to the damage as commissive or omissive be rather left to the merits of the case?

In the present author’s view, this issue is also relevant at the jurisdictional stage. Properly localising the event giving rise to the damage for the purposes of Article 7(2) of the Brussels I bis Regulation requires a clear understanding of the true nature of the conduct in question. Depending on whether the conduct is characterised as commissive or omissive, it may be localised in different places, potentially conferring jurisdiction on courts in different States.

Applying this reasoning to the ENI case, if the event giving rise to the damage – namely, the emission of GHGs beyond a certain threshold – is characterised as commissive, it should be localised in the places where the emissions occurred. Given that the ENI Group’s emissions occur in multiple countries, this would possibly confer jurisdiction on courts of more than one Member State under the “event giving rise to the damage” limb of Article 7(2). Both courts in Italy and Cyprus would, for instance, be competent under Article 7(2) if we follow this characterisation.

If, by contrast, the conduct is characterised as omissive, it should be localised at the place where the decision not to reduce emissions was taken at the company’s headquarters. In ENI’s case, this is, univocally, Rome.

This analysis further implies that courts are not bound by the characterisation of the event giving rise to the damage as commissive or omissive advanced by the claimants. Rather, they should assess whether the conduct is commissive or omissive in light of both parties’ submissions, the evidence available, and the factual context.

Had the Italian Supreme Court undertaken such an analysis, it would likely have characterised ENI’s conduct as commissive. Based on the memorials available on Greenpeace’s website, it seems that the claimants essentially alleged that the volume of GHG emissions released by the ENI Group exceeded what a reasonable operator would have emitted under the applicable duty of care. Describing this conduct as a “decision not to reduce emissions” merely relabels the same commissive emitting behaviour.

A different conclusion might be warranted if the company were subject to a binding legal obligation to reduce emissions by a specific percentage. However, in the absence of such a binding obligation, the claimants’ argument rests on the contention that emitting a certain volume of GHGs breached the duty of care and constituted negligence. This, however, does not transform a commissive act into an omission.

In a judgment of 9 September 2025 the Danish Supreme Court clarified how Danish private international law determines the applicable law in recourse claims between insurance agencies and vehicle owners after an international traffic accident. The Court confirmed that, in the absence of codified conflict-of-laws rules, the starting point is the law of the place where the damage occurred, which may only be displaced by a clearly stronger connection to another country.

Background

In 2016, two separate traffic accidents occurred, one in Germany and one in Spain. Both accidents involved Danish-registered semi-trailers. The semi-trailers were attached to trucks registered in Poland and Lithuania, respectively, while the passenger cars involved in the accidents were registered in Germany and Spain.

The damage resulting from the accidents were compensated by the German and Spanish insurance agencies. In turn these agencies were reimbursed by the Danish insurance agency that in turn sought to recourse the expenses from the Danish vehicle rental company that owned the semi-trailers.

Whether the Danish insurance agency legally had a claim against the rental company was dependent on what law that should apply to the traffic accidents.

Judgment

The Danish Supreme Court initially held that the issue of determining the law applicable to an international traffic accident is based on uncodified principles. In this respect, it is noteworthy that Denmark does not apply either the EU’s Rome II Regulation or the 1971 Hague Convention on the Law Applicable to Traffic Accidents.

According to the Danish Supreme Court, the law applicable to a traffic accident should be based on the connecting factors relevant to the specific dispute. The starting point of this assessment is the place where the damage occurred (“hvor skaden er sket”),  in the sense that the application of another country’s law requires a strong connection to displace it.

In the case at hand, the Danish Supreme Court found that none of the cases involved such a strong connection to another country that could displace the application of the law in the country where the damage occurred. Hence, German respectively Spanish law should be applied in the cases.

Comment

Treating the law of the place where the traffic accident occurs as the presumptive applicable law is a natural starting point. The Danish conflict-of-laws solution does in that sense not deviate from how the outcome would have been under the Rome II Regulation or under the 1971 Hague Convention on the Law Applicable to Traffic Accidents.

Operating within a similarly uncodified conflict-of-laws system, the Norwegian Supreme Court likewise concluded in a 2024 judgment, previously discussed on this blog, that the law of the country where the damage occurred primarily should apply to an international traffic accident. However, whereas the Norwegian Supreme Court explicitly sought to align its reasoning with the Rome II Regulation, the Danish Supreme Court advanced no such arguments. ,

The absence of references to the Rome II Regulation or the 1971 Hague Convention does not necessarily imply that foreign conflict-of-laws solutions are irrelevant in Danish private international law. After all, international alignment of conflict-of-laws rules remains a central value in private international law that reflects the underlying objective of promoting international harmony of decisions. One could of course argue that the default rules of the Rome II Regulation and the 1971 Hague Convention will often lead to the same result. Nevertheless, the two instruments provide for different exceptions, which may affect the applicable law in individual cases.

From that perspective, it is unsatisfactory that the EU remains divided on what conflict-of-laws rules that shall govern international traffic accidents with some Member States applying the 1971 Hague Convention, others the Rome II Regulation and Denmark applying its own autonomous conflict-of-laws rules.

In 2025, the Court of Justice of the European Union gave some twenty rulings dealing either with legislative measures in the field of judicial cooperation in civil and commercial matters or, more generally, with issues of private international law (notably in connection with rules of EU primary law on EU citizenship or fundamental economic freedoms). This post, written by Maura Lospalluti, a PhD student at the Catholic University of the Sacred Heart in Milan, provides a retrospective overview of those rulings.   

The Brussels I bis Regulation 

Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I bis Regulation) formed the object of eleven rulings. One such ruling is also concerned with Regulation No 44/2001 (the Brussels I Regulation), the predecessor of the latter text.

In Deutsche Lufthansa (C-551/24), the Court discussed the interpretation of Article 7(1)(b), second indent, of the Brussels I bis Regulation. According to the latter provision, a person domiciled in a Member State may be sued in another Member State, in disputes regarding a contract for the provision of services, in the courts for the place where, under the contract, “the services were provided or should have been provided”.

The Court held that the above provision means that

a court of one Member State has jurisdiction … to hear a dispute relating to a claim for compensation brought against an air carrier, established on the territory of another Member State, by a company which is the assignee of a passenger’s claim arising from the performance of a contract of carriage concluded with that carrier, so long as that court is the court for the place where, under that contract, the services were provided or should have been provided.

In Apple Nederland Store (C-34/24), the Court was asked to clarify the interpretation of the rule of special jurisdiction laid down in Article 7(2) of the Brussels I bis Regulation. “[I]n matters relating to tort, delict, or quasi-delict”, a person domiciled in a Member State may be sued “in the courts for the place where the harmful event occurred or may occur”. In the Court’s view, Article 7(2) means that

within the market of a Member State allegedly affected by the implementation of anticompetitive conduct consisting of the charging by the operator of an online platform, aimed at all users established in that State, of excessive commission on the price of the apps and digital in-app products offered for sale on that platform, any court having substantive jurisdiction in that State to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users who have purchased digital products on that platform has international and territorial jurisdiction, on the basis of the place where the damage occurred, to hear that action with regard to all those users.

An on-line symposium was held on this blog concerning the above judgment: the introductory post of the symposium can be found here, preceded by an analysis by Burkhard Hess.

Article 7(5), on jurisdiction over disputes “arising out of the operations of a branch, agency or other establishment”, formed the object of the order given by the Court of Justice in Diamond Resorts Europe (C-815/24). The Court held that Article 7(5), which confers jurisdiction on “the courts for the place where the branch, agency or other establishment is situated”, must be read as meaning that

The full text of the order, not available in English, can be found here, in French.

The ruling given in Athenian Brewery SA (C-393/23) concerned, instead, Article 8(1) of the Brussels I bis Regulation. Where proceedings are brought against “a number of defendants”, a person domiciled in a Member State may be sued “in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings”. The Court held that Article 8(1)

must be interpreted as not precluding – in claims for a parent company and its subsidiary to be held jointly and severally liable to pay compensation for the damage suffered as a result of an infringement, by that subsidiary, of the competition rules – the court for the place of residence of the parent company seised of those claims from relying, in order to establish its international jurisdiction, on the presumption that where a parent company holds directly or indirectly all or almost all of the capital of the subsidiary that infringed the competition rules, it exercises a decisive influence over that subsidiary, provided that the defendants are not deprived of the possibility of relying on firm evidence suggesting either that that parent company did not hold directly or indirectly all or almost all of the capital of that subsidiary, or that that presumption should nevertheless be rebutted.

In Mutua Madrileña Automovilista (C-536/23), the Court clarified the interpretation of Article 13(2) of the Brussels I bis Regulation, read in conjunction with Article 11(1)(b). The former provision states that Articles 10, 11 and 12, that is, the rules on jurisdiction in matters relating to insurance, “shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted”. Pursuant to Article 11(1)(b), in the case of actions brought by the policyholder, the insured or the beneficiary, an insurer domiciled in a Member State may be sued in another Member State “in the courts for the place where the claimant is domiciled”. The Court held that under the provisions mentioned above

a Member State acting as an employer subrogated to the rights of an official injured in a road traffic accident, which continued to pay the remuneration of that official during the official’s incapacity to work, may, in its capacity as an ‘injured party’ within the meaning of that Article 13(2), sue the company providing insurance against civil liability resulting from the use of the vehicle involved in that accident not in the courts for the place where the official is domiciled, but in the courts for the place where the administrative body employing that official has its seat, where direct actions are permitted.

In BSH Hausgeräte (C-339/22), examined in this blog by Lydia Lundstedt here, the Court ruled on Article 4 and Article 24(4) of the Brussels I bis Regulation. Article 4 confers jurisdiction on the courts of the Member State where the defendant is domiciled. According to Article 34(4), where proceedings are concerned “with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered irrespective of whether the issue is raised by way of an action or as a defence”, exclusive jurisdiction lies with “the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place”. The Court held that Article 24(4)

must be interpreted as meaning that a court of the Member State of domicile of the defendant which is seised, pursuant to Article 4(1) of [the Brussels I bis Regulation], of an action alleging infringement of a patent granted in another Member State, does still have jurisdiction to hear that action where, in the context of that action, that defendant challenges, as its defence, the validity of that patent, whereas the courts of that other Member State have exclusive jurisdiction to rule on that validity.

The Court further stated that Article 24(4)

must be interpreted as not applying to a court of a third State and, consequently, as not conferring any jurisdiction—whether exclusive or otherwise—on such a court with regard to the assessment of the validity of a patent granted or validated by that State. Where a court of a Member State is seised, on the basis of Article 4(1) of [the Brussels I bis Regulation], of an action alleging infringement of a patent granted or validated in a third State in which the validity of that patent is raised as a defence, that court has jurisdiction, pursuant to Article 4(1), to rule on that defence, its decision in that regard being without effect on the existence or content of that patent in that third State and without resulting in any amendment to the national register of that State.

Various rulings have been given in 2025 regarding Article 25, on choice of court agreements. Under the latter provision, the parties to a dispute may agree on the jurisdiction of a court or the courts of a Member State, “unless the agreement is null and void as to its substantive validity under the law of that Member State”. For their agreement to be valid, it must comply with the requirements set out for this purpose in Article 25(1).

In E.B. (C-682/23), the Court held that Article 25(1)

must be interpreted as meaning that a third party, as the assignee of a claim for damages arising from the non-performance of a contract containing a jurisdiction clause, may rely on that clause vis-à-vis the original contracting party, as the assigned debtor of that claim, under the same conditions as those under which the other original party to the contract could have relied on that clause against that debtor, for the purposes of an action for recovery of that claim and without the consent of that debtor.

In Cabris lnvestments (C-540/24), examined in this blog by Pietro Franzina here and by Gilles Cuniberti, Brooke Marshall and Louise Ellen Teitz here, the Court held that Article 25(1)

must be interpreted as meaning that that provision covers a situation in which two parties to a contract domiciled in the United Kingdom agree, by an agreement conferring jurisdiction concluded during the transition period provided for by the Agreement on the withdrawal of the United Kingdom … from the European Union …, on the jurisdiction of a court of a Member State to settle disputes arising from that contract, even where that court was seised of a dispute between those parties after the end of that period.

In Società Italiana Lastre (C-537/23), the Court of Justice ruled on the interpretation of Article 25 and Article 4 of the Brussels I bis Regulation. Specifically, the Court held that Article 25(1)

must be interpreted as meaning that, in the context of assessing the validity of an agreement conferring jurisdiction, complaints alleging the imprecision or asymmetry of that agreement must be examined not in the light of criteria relating to matters which cause that agreement to be ‘null and void as to its substantive validity’ defined by the law of the Member States in accordance with that provision, but in the light of autonomous criteria which are derived from that article.

The Court went on to say that Article 25(1) and Article 4

must be interpreted as meaning that an agreement conferring jurisdiction pursuant to which one of the parties thereto may only bring proceedings before the sole court that it designates whereas it permits the other party to bring proceedings before, in addition to that court, any other competent court, is valid, in so far as, first, it designates courts of one or several States which are either Members of the European Union or parties to the [Lugano Convention of 30 October 2007], secondly, it identifies objective factors which are sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, and, thirdly, it is not contrary to the provisions of Articles 15, 19 or 23 of that regulation and does not derogate from an exclusive jurisdiction pursuant to Article 24 thereof.

In Pome (C-398/24), the Court held that Article 25(1) of the Brussels I bis Regulation

must be interpreted as meaning that a condition, imposed by the national law of the Member State whose court has been designated by the parties to an agreement as having jurisdiction, according to which an agreement conferring jurisdiction entered into by natural persons is valid only if the dispute at issue is connected with the economic or professional activity of those parties, does not amount to a ground for the agreement being ‘null and void as to its substantive validity’, within the meaning of that provision.

In Chmieka (C-99/24), the Court ruled on the interpretation of Article 66(1), whereby the Brussels I bis Regulation applies “only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015”. The Court held that the latter provision

must be interpreted as meaning that for the purpose of establishing the applicability ratione temporis of that regulation, legal proceedings are considered to be instituted, within the meaning of that provision, on the date on which the applicant brought his or her action, in a case in which there was subsequently a judgment, and not on the date on which the defendant, at a later stage, lodged a statement of opposition against that judgment seeking a review of the case.

In the same judgment, the Court also ruled on the interpretation of Article 5(3), Article 6(1) and the first subparagraph of Article 22(1) of the Brussels I Regulation, the predecessor of the Brussels I bis Regulation.

Pursuant to Article 5(3) (now Article 7(2) of the Brussels I bis Regulation), a person domiciled in a Member State may be sued in another Member State, in “matters relating to tort, delict or quasi-delict”,  in the “courts for the place where the harmful event occurred or may occur”. Article 6(1) of the Brussels I Regulation, which correspond to Article 8(1) of the Brussels I bis Regulation, provides that, where proceedings are brought against “a number of defendants”, a person domiciled in a Member State may be also sued “in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. Finally, Article 22(1) of the Brussels I Regulation (now Article 24(1) of the Brussels I bis Regulation) provides that exclusive proceedings over proceedings “which have as their object rights in rem in immovable property or tenancies of immovable property” lies with “the courts of the Member State in which the property is situated”.

The Court held, first, that:

legal proceedings for payment of compensation for the non-contractual use of immovable property after the termination of the tenancy agreement relating to that immovable property, which is situated in a Member State other than the one in which the defendant concerned is domiciled, do not constitute an action ‘in proceedings which have as their object rights in rem in immovable property’ and do not come within the concept of ‘tenancies of immovable property’, within the meaning of the first subparagraph of Article 22(1).

It added that

a claim for compensation for the non-contractual use of immovable property must be considered as coming within ‘matters relating to tort, delict or quasi-delict’, within the meaning of Article 5(3)

and that

Article 6(1) is applicable only where, on the date an action is brought by which an applicant sued several defendants before the court of a Member State, there is the same situation of fact and law so that it is expedient to hear and determine all the claims brought against those defendants at the same time to avoid the risk of irreconcilable judgments resulting from separate proceedings were those claims to be determined separately in different Member States.

The Brussels II ter Regulation

One ruling was given, in 2025, on Regulation 2019/1111 on matrimonial matters, matters of parental responsibility and child abduction (the Brussels II ter Regulation).

In Anikovi (C-395/23), examined in this blog by Pietro Franzina, the Court of Justice ruled on the interpretation of Articles 1(1)(b) and 7(1) of the Regulation. According to Article 1(1)(b), the regulation applies “in civil matters of attribution, exercise, delegation, restriction or termination of parental responsibility”. Article 7(1), for its part, provides that “[t]he courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised”.

The Court held that the above provisions

must be interpreted as meaning that judicial authorisation, sought on behalf of a minor habitually resident in a Member State, to sell the shares owned by that minor in immovable property situated in another Member State comes within the scope of parental responsibility, within the meaning of Article 1(1)(b) of that regulation, in that that authorisation concerns protection measures, as referred to in Article 1(2) of that regulation, with the result that, pursuant to Article 7(1) of that regulation, it is the courts of a Member State in which the minor is habitually resident at the time the court is seised which, in principle, have jurisdiction to grant that authorisation.

In the same judgment, the Court also ruled on the interpretation of Article 351 TFEU. The rule governs the relationship between European Union law and treaties concluded by the Member States before they acceded to the European Union. The Court held that:

Article 351 TFEU must be interpreted as governing the relations between a treaty concluded between a Member State and one or more third States before the date of that Member State’s accession to the European Union and [the Brussels II ter Regulation] where that treaty, although not referred to in Chapter VIII of that regulation, confers rights which a third State party to that treaty may require the Member State concerned to respect. In the event that that treaty is incompatible with [the Brussels II ter Regulation], and that incompatibility cannot be avoided by a court of that Member State in proceedings pending before it in a matter that is governed by both that treaty and that regulation, that court may apply the rules of that treaty to the detriment of those laid down by that regulation, as long as the measures necessary to eliminate that incompatibility have not taken effect, it being specified that that Member State must take all appropriate steps to adopt and implement those measures.

The Rome I Regulation (and the Rome Convention)

The Court of Justice dealt with of Regulation No 593/2008 on the law applicable to contractual obligations (Rome I) in one ruling. In another ruling, the Court clarified the interpretation of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations.

In Liechtensteinische Landesbank (C-279/24), the Court ruled on Article 6(1) of the Rome I Regulation. According to the latter provision, a contract concluded between a consumer and a professional is governed by “the law of the country where the consumer has his habitual residence”, provided, inter alia, that “the professional pursues his commercial or professional activities in the country where the consumer has his habitual residence” (lit. a), or “by any means, directs such activities to that country or to several countries including that country (lit. b)”. The contract shall fall within the scope of such activities.

The Court held that Article 6(1)

must be interpreted as not applying to a contract concluded between a consumer and a bank where the conditions set out in that provision were not met on the date on which that contract was concluded, but are subsequently met.

In Locatrans (C-485/24), analysed in this blog by Ugljesa Grusic, the Court ruled on the interpretation of Article 3 and Article 6 of the Rome Convention. The former states the general rule whereby the contract is governed by “the law chosen by the parties”. Article 6, instead, is concerned with individual contracts of employment. Specifically, Article 6(2) provides that, in the absence of choice, where the employee “does not habitually carry out his work in any one country”, the contract is subject to “the law of the country in which the place of business through which he was engaged is situated”. The Court of Justice held that

Articles 3 and 6 of the [Rome Convention], and in particular the last limb of Article 6(2), must be interpreted as meaning that where an employee, after having worked for a certain time in one place, is called upon to take up his or her work activities in a different place, which is intended to become the new habitual place of work for that employee, account should be taken of that latter place, in the context of the examination of all the circumstances, with a view to determining the law which would be applicable in the absence of a choice made by the parties.

The Rome III Regulation

In Lindenbaumer (C-61/24), examined by Pietro Franzina here, the Court ruled on Article 8(a) and 8(b) of Regulation No 1259/2010 on the law applicable to divorce and legal separation (Rome III). In the absence of a choice of law by the spouses, Article 8(a) provides that the law applicable to divorce and legal separation is “the law of the State where the spouses are habitually resident at the time the court is seized”. Failing that, the law “where the spouses were last habitually resident” applies, according to Article 8(b), provided that “the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized”. The Court held that the latter provisions

must be interpreted as meaning that the status of diplomatic agent of one of the spouses and his or her assignment to a post in the receiving State preclude, in principle, the ‘habitual residence’ of the spouses from being considered to be established in that State, unless it is determined, following an overall assessment of all the circumstances specific to the case, including, in particular, the duration of the spouses’ physical presence and their social and family integration in that State (i) that the spouses intend to establish in that State the habitual centre of their interests and (ii) that there is a sufficiently stable presence in the territory of that State.

The Maintenance Regulation

In Amozov (C-67/24), the Court ruled on Article 1(1), Article 6 and Article 7 of Regulation No 4/2009 on maintenance obligations.

According to Article 1(1), the Maintenance Regulation applies “to maintenance obligations arising from a family relationship, parentage, marriage or affinity”. The Court held that this provision

must be interpreted as meaning that an application to modify a decision on maintenance obligations given by a court of a third State other than a State which is a contracting party to the [Hague Convention of 23 November 2007 on the international recovery of child support], falls within the scope of that regulation where it seeks, on the one hand, a reduction of the amount of a maintenance allowance and, on the other, termination of the obligations in question and is brought before a court of a Member State by the maintenance debtor, a national of that Member State and habitually residing in the territory of that Member State, against the maintenance creditors, who habitually reside in the territory of that third State, of whom one is a national only of that third State and the others are nationals of that State and of the Member State in question.

Article 6 provides a ground of subsidiary jurisdiction. It states that, where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5 and no court of a State party to the Lugano Convention which is not a Member State has jurisdiction under that convention, “the courts of the Member State of the common nationality of the parties shall have jurisdiction”. The Court asserted that the above provision

must be interpreted as meaning that the rule whereby the courts of the Member State of the common nationality of the parties has subsidiary jurisdiction applies where, in addition to the nationality of the Member State of the court seised, the defendants hold the nationality of a third State.

Article 7 provides a forum necessitatis: “where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5 and 6, the courts of a Member State may, on an exceptional basis, hear the case if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected”. The dispute, however, “must have a sufficient connection with the Member State of the court seised”. The Court held that this provision

must be interpreted as meaning that a situation in which an application to modify a decision on maintenance obligations given by a court of a third State other than a State which is a contracting party to the [Hague Convention of 23 November 2007 on the international recovery of child support], seeking termination of the obligations concerned, is brought before a court of a Member State by the maintenance debtor, a national of that Member State and habitually resident in the territory of that Member State, against the maintenance creditor, a national of that third State and habitually resident in the territory of that third State, falls within the concept of ‘an exceptional basis’ for the purposes of that article, with the effect that a court of a Member State can hear a dispute pursuant to the rule on the jurisdiction of the forum necessitatis laid down in that article, provided that no such application could reasonably be brought, or the related procedure be conducted, or would be impossible before the courts of the third State concerned.

The Succession Regulation

In Lawida (C-57/24), which Anna Wysocka-Bar discussed in this blog, the Court ruled on Article 13 of Regulation No 650/2012 on matters of succession. Under the latter provision, “[i]n addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court”.

The Court held that Article 13

must be interpreted as meaning that the courts of the Member State in which a person habitually resides who applies to be freed from the legal consequences of failing to make a declaration of waiver of a succession, within the required period, do not have jurisdiction to approve such an application.

The Recast Insolvency Regulation

In Matthäus Metzler (case C-186/24), the Court was asked to clarify the interpretation of Article 31(1) of Regulation 2015/848 (the Insolvency Regulation). The rule provides that

[w]here an obligation has been honoured in a Member State for the benefit of a debtor who is subject to insolvency proceedings opened in another Member State, when it should have been honoured for the benefit of the insolvency practitioner in those proceedings, the person honouring the obligation shall be deemed to have discharged it if he was unaware of the opening of the proceedings.

The Court held that the latter provision

must be interpreted as meaning that obligations honoured for the benefit of a debtor who is subject to insolvency proceedings, when they should have been honoured for the benefit of the insolvency practitioner in those proceedings, also include the honouring of an obligation arising from a legal act concluded by the debtor after the opening of those insolvency proceedings and the transfer of the administration of the assets to the insolvency practitioner, provided that such a legal act is enforceable, in accordance with the law of the State of the opening of those proceedings, against the creditors who are parties to such proceedings.

Antonio Leandro commented on the ruling here.

The Regulation Creating a European Enforcement Order for Uncontested Claims

In Manuel Costa Filhos (case C-643/24), the Court ruled on the interpretation of Article 20(1) of Regulation 805/2004 creating a European Enforcement Order for uncontested claims (the EEO Regulation). It provides that “the enforcement procedures shall be governed by the law of the Member State of enforcement” and 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”. The Court held that the latter provision

must be interpreted as precluding legislation of the Member State of enforcement which enables the judgment debtor, in the context of the enforcement of a court decision delivered and certified as a European Enforcement Order, to oppose that enforcement on the ground that, during the proceedings which led to the delivery of that decision, the document instituting the proceedings was served on the judgment debtor by registered letter with acknowledgement of receipt, without it being written in, or accompanied by a translation into, either a language which that party understands or the official language of the Member State of enforcement or, as the case may be, one of the official languages of the place where service of that document is to be effected, and without it being accompanied by the standard form set out in Annex II to Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, as amended by Council Regulation (EU) No 517/2013 of 13 May 2013, which enables that party to be informed of his or her right to refuse to accept the document to be served.

Issues related to Private International Law Raised in Connection with EU Primary Law

In a least two cases centred on the interpretation of provisions of the TEU or the TFEU the Court of Justice had the chance to discuss issues of private international law, or related with private international law.

In Cupriak-Trojan (C-713/23), the Court ruled on Article 20 and Article 20(1) TFEU, which establish the right of every citizen of the Union “to move and reside freely within the territory of the Member States”. The Court read these rules in light of Articles 7 and 21(1) of the Charter of Fundamental Rights of the European Union (the Charter), which respectively establish the right of everyone “to respect for his or her private and family life, home and communications” and prohibit “[a]ny discrimination based on any ground such as … sexual orientation”.

In the Court’s view, the above provisions preclude a Member State from adopting

legislation … 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, or the transcription for that purpose 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.

An on-line symposium was held on this blog concerning the above judgment: the introductory post of the symposium can be found here.

Also worth of note for those interested in private international law is Royal Football Club Seraing (C‑600/23). The case concerned the second subparagraph of Article 19(1) TEU (“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”), read in conjunction with Article 267 TFEU (on the Court’s authority to give preliminary rulings) and Article 47 of the Charter of Fundamental Rights of the European Union (which enshrines the right to an effective remedy and to a fair trial). The Court ruled that the above provisions preclude:

the authority of res judicata from being conferred within the territory of a Member State on an award made by the Court of Arbitration for Sport (CAS), in the relations between the parties to the dispute in the context of which that award was made, where that dispute is linked to the pursuit of a sport as an economic activity within the territory of the European Union and the consistency of that award with the principles and provisions of EU law which form part of EU public policy has not first been subject to effective review by a court or tribunal of that Member State that is authorised to make a reference to the Court of Justice for a preliminary ruling.

The same provisions further preclude

probative value from being conferred, as a consequence of that authority of res judicata, on such an award within the territory of that Member State, in the relations between the parties to that dispute and third parties.

Gilles Cuniberti discussed the ruling in a post that can be found here.

After the Christmas break, the Court resumes its normal rhythm of hearings and publication of judgments and opinions until the “semaine blanche” in February.

The judgment of the first chamber (F. Biltgen reporting, the other judges being T. von Danwitz, I. Ziemele, S. Gervasoni and N. Fenger) in case C-77/24, Wunner, is scheduled for Thursday 15 January. The Oberster Gerichtshof (Supreme Court, Austria) has referred two questions on the interpretation of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II):

1. Must Article 1(2)(d) of the Rome II Regulation be interpreted as meaning that it also applies to claims for damages against an officer of a company which a creditor of the company bases on tortious liability for infringement of protective provisions (such as provisions of legislation on games of chance) by that officer?
2. If Question 1 is answered in the negative:

Must Article 4(1) of the abovementioned regulation be interpreted as meaning that, in the event of an action for damages based on tortious liability in respect of gaming losses suffered which is brought against an officer of a company offering online games of chance in Austria without a licence, the place where the damage occurred is determined by

(a) the place from which the player effects credit transfers from his or her bank account to the player account maintained by the company,

(b) the place where the company maintains the player account in which deposits from the player, winnings, losses and bonuses are entered,

(c) the place from which the player places bets via that player account which ultimately result in a loss,

(d) the player’s place of residence as the location of his or her claim to payment of the credit balance in his or her player account,

(e) the location of the player’s main assets?

Advocate General N. Emilou delivered his opinion last June 12, 2025. He proposes the Court of Justice answers as follows:

(1) Article 1(2)(d) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that the exclusion concerning ‘non-contractual obligations arising out of the law of companies’ laid down in that provision does not cover an alleged ‘non-contractual obligation’ of a company director arising out of the infringement of a duty or prohibition imposed by the law independently of his or her appointment, such as the prohibition on anyone to offer games of chance in a given Member State without a licence granted by the authorities of that State.

(2) Article 4(1) of Regulation No 864/2007 must be interpreted as meaning that, where a consumer alleges to have sustained gambling losses as a result of participating, from the Member State in which he or she is habitually resident, in the online games of chance offered to him or her by a provider established in another Member State without a licence granted by the authorities of the first State, the ‘damage’ within the meaning of Article 4(1) of that regulation occurred in that first State, as the country from which the bets were placed.

On the same day, a hearing is taking place in case C-176/25, Steizer. The Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) asks, in essence, whether the Rome I and Rome II Regulations must be interpreted as meaning that, in proceedings for infringement by a third party of intellectual property rights, the question of the formal validity of the contract of assignment between the holder of the rights and the assignor of those rights is governed by the law applicable to the contract under the rules laid down in the Rome I Regulation or by the law of the country for which protection of those rights is claimed under Article 8(1) of the Rome II Regulation.

In the case at hand, a natural person (BT) had,  for the purposes of its online business in Germany, photographs of its goods taken by a photographer in Poland on the basis of a verbal agreement that also included the transfer of exclusive rights of use to the photographs. Another natural person (IU) used the photographs for the purposes of his own online business in Germany without BT’s consent. BT then brought an action against IU in Germany, seeking, inter alia, an injunction against the unauthorised use of the photographs.  IU argues that the transfer agreement between BT and the photographer is governed by Polish law under the Rome I Regulation, and that it is invalid because it should have been concluded in writing in accordance with that law.

The questions read:

1. Is Article 8(1) of the Rome II Regulation to be interpreted as meaning that the law of the State for which protection is claimed also applies to the question of the (formal) validity of the assignment of exclusive rights to use photographs from the author to the assignee?
2. If Question 1 is answered in the negative, is the question of the (formal) validity of the assignment of exclusive rights to use photographs from the author to the assignee governed by the lex loci contractus and, consequently, are Articles 4 and 11 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘the Rome I Regulation’) applicable?since the question of the formal validity of the transfer agreement is incidental to the action for infringement of its intellectual property rights, that question should be governed by the law applicable to that non-contractual action, namely the law of the country for which protection is claimed (lex loci protectionis) under Article 8(1) of the Rome II Regulation. In this case, that would be German law; since German law does not require the assignment of rights to be in writing, the assignment agreement between BT and the photographer would be valid in form.

The preliminary ruling will be given by a chamber of five judges (C. Lycourgos, S. Rodin, Piçarra, N. Fenger, and O. Spineanu-Mattei reporting), supported by advocate general N. Emiliou’s opinion.

Finally, the opinion of advocate general M. Campos Sánchez-Bordona in case C-98/24, Koda, on which I reported last November, will be published on Thursday 29 January. The questions referred by the Obvodní soud pro Prahu 1 (District Court for Prague 1, Czech Republic) concern Regulation No 650/2012 on matters of succession. Judging from the hearing, admissibility under article 267 TFEU will be dealt with in the first place.

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.

This post was written by Dr Franziska Arnold-Dwyer, Associate Professor of Law at University College London (UCL).

On 24 November 2025, the Privy Council handed down judgment in Credit Suisse Life (Bermuda) Ltd v Ivanishvili [2025] UKPC 53 in an appeal from the Court of Appeal for Bermuda.

By way of background, it is worth noting that the Privy Council is the final court of appeal for UK overseas territories, Crown dependencies, and those Commonwealth countries – like Bermuda – that have retained the appeal procedure to the Privy Council. The Justices of the Privy Council are identical to the Justices of the UK Supreme Court (which is the highest court in the United Kingdom).

In Credit Suisse, the Privy Council decided an important point of substantive law – that the claimant’s awareness of a representation is not an element of the tort of fraudulent misrepresentation under Bermudian law and English law – but the focus of this note will be on two principles of private international law: the double actionability rule and the doctrine of renvoi.

Facts and Issues

The factual background to the case was, in brief, that, on the advice of Credit Suisse AG (“the Bank”), Mr Ivanishvili transferred cash and other assets amounting to some US$750 million, held on trust, to Credit Suisse Life (Bermuda) Ltd (“CS Life”, a subsidiary of the Bank) in 2011 and 2012 as premiums for two life insurance policies. In 2015, Mr Ivanishvili discovered that his relationship manager, Mr Lescaudron, an employee of the Bank, had been dealing fraudulently with the policy assets. Mr Lescaudron was convicted of criminal offences in Switzerland in 2018. Mr Ivanishvili brought proceedings against CS Life in the Bermudian courts, alleging breach of contract and breach of fiduciary duty in 2017, and fraudulent misrepresentation in 2020.

As regards the fraudulent misrepresentation claim, the issues on the cross-appeal were whether the Bermuda Court of Appeal was right to hold that the misrepresentation claim failed because: (1) Mr Ivanishvili had not pleaded and proved that he had any conscious awareness or understanding of the representations made to him; and/or (2) the claim was subject to the law of Georgia relating to limitation and was brought after the expiry of the three-year limitation period prescribed by Georgian law. It was in this context that the Privy Council examined what system of law applied to the misrepresentation claim [116].

It was common ground between the parties that the place where the acts constituting the alleged tort were committed was Georgia [124]. By recommending investment in the policies, Mr Lescaudron (on behalf of CS Life) impliedly represented to Mr Ivanishvili that the Bank did not intend to manage the policy assets fraudulently [115]. This implied misrepresentation was made at meetings in Georgia in 2011, at which the life insurance policies were proposed [114]. It was also where the misrepresentations were acted on by Mr Ivanishvili by signing documents necessary to enter into the life insurance policies [124].

Double Actionability

At common law, a claim in tort arising from an act done in a foreign country is generally “actionable” only if the act gives rise to liability under both (1) the law of the forum where the claim is brought and (2) the law of the foreign country where the act was done (Boys v Chaplin [1971] AC 356). This is known as the double actionability rule. The Privy Council pointedly noted that it would have been open to either party to invite the Privy Council not to follow the double actionability rule and that instead the court should apply only the law of the place where the tort was committed [123]. That the Privy Council might have been receptive to such an argument might be deduced from that the Privy Council noted:

• the uncertain scope of the “flexible exception” to the double actionability rule ([118]-[119], referencing Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 and Sophocleous v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 2167),
• that the double actionability rule had been strongly criticised by the UK Law Commissions (see Private International Law: Choice of Law in Tort and Delict , Law Com No 193 and Scot Law Com No 129 (1990)) ([120]),
• that in the UK the double actionability rule had been replaced first by a locus delicti choice of law rule for most torts under the Private International Law (Miscellaneous Provisions) Act 1995, s.11(1) ([120]), and then by a lex loci damni rule in the Rome II Regulation (EC) No 864/2007, art. 4(1) (which has been retained in UK law after the withdrawal of the United Kingdom from the European Union) ([121]), and
• that the double actionability rule has also been rejected in Canada and Australia ([122]).

The defects of the double actionability rule identified by the UK Law Commissions are usefully summarised in Dicey, Morris & Collins on The Conflict of Laws (16th ed, 2022), [35-013] and were also cited by the Privy Council ([120]):

• it is anomalous to require actionability by two systems of law, such an approach being unknown in any other area of UK private international law,
• it is “parochial in appearance” and unjustifiable in principle to apply the substantive law of the forum in cases involving a tort regardless of the factual situation,
• it gives an unfair advantage to the defendant because the claimant cannot succeed unless liability is established under two systems of law, and
• the formulation and application of the “flexible exception” is speculative and uncertain.

Yet, the double actionability rule remains applicable in England in defamation claims (excepted from the 1995 Act and the Rome II Regulations) where it serves to protect English publishers from claims under foreign – potentially draconic – laws. Moreover, the alternatives – lex loci delicti and lex loci damni rules – have also given rise to problems. The Australian courts have resorted to renvoi (rejected by the Privy Council – see below) to moderate outcomes from applying a strict lex loci delicti rule (see Neilson v Overseas Projects Corporation of Victoria [2005] HCA 54). The Rome II Regulation lex loci damni rule can cause friction with the loci delicti rule for choice of forum in the Brussels I Regulation (EC) No 1215/2012, art.7(2) by leading to different outcomes on choice of law and jurisdiction which could ultimately reflect in the complexity and costs of litigation.

On the basis of the Privy Council’s decision that there is no legal requirement that the claimant was aware of the representation and understood it to have been made, Mr Ivanishvili could show an actionable tort under Bermudian law. But under the double actionability rule the claim would still be barred because the claim was outside the applicable limitation period under Georgian law ([183]-[184]). The “flexible exception” did not apply because the claim did not have a significant connection with Bermuda ([188]-[189]). To get around the limitation period bar under Georgian law, Mr Ivanishvili sought to rely on, inter alia, “renvoi”.

Renvoi

“Renvoi is concerned with what happens when the … court refers an issue to a foreign system of law … and where under that country’s conflict of laws rules the issue is referred to another country’s law” (Lord Collins in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46, [124]). The foreign law expert evidence showed that, if the misrepresentation claim were brought in Georgia, then under its conflict of laws rules the claim would be regarded as governed by the law of Bermuda. Seeking to build on an article by Professor Adrian Briggs (‘In Praise and Defence of Renvoi’ (1998) 47 ICLQ 877), Mr Ivanishvili argued that, applying the doctrine of renvoi, the misrepresentation claim, including the question of limitation, would be governed solely by Bermudian law ([192]).

The Privy Council forcefully rejected that argument: English law, from which Bermudian law is not said to differ in that respect, has never applied the doctrine of renvoi in the field of tort ([193]). Several key textbooks (Briggs on Private International Law in English Courts; Dicey, Morris & Collins on The Conflict of Laws; Cheshire, North & Fawcett on Private International Law) were cited in support ([193]). The Privy Council noted that, except for specific areas of law outside the law of obligations, renvoi had been discredited for introducing unnecessary complexity, the possibility of renvoi stalemate (“circulus inextricabilis”) and the undesirability of subordinating the choice of applicable law to another country’s choice of law rules ([197]-[200]). To the extent renvoi could be used as a tool to restrain forum shopping, the Privy Council commented that forum shopping can be controlled directly under the doctrine of forum non conveniens ([216]). Accordingly, Mr Ivanishvili’s misrepresentation claim failed.

However, he did not leave empty-handed as his breach of contract claim was upheld ([58]).

Assessment

The renvoi argument was spirited but bound to fail. The Privy Council made it abundantly clear that there is no room for the doctrine in tort law and the law of obligations more widely. Perhaps more importantly, there is no judicial appetite for deferring “to the rules chosen by another country’s legal institutions, whatever those rules and the policies underlying them might be” [200]. As for double actionability, the Privy Council gave some hints that it does not look favourably on the rule and might have been prepared to abolish or restrict it had the point been argued by one of the parties. Given how rarely double actionability issues come before the courts, this is a missed opportunity. To me, this Privy Council judgment stands out for its engagement with the academic scholarship as well as practical concerns in the areas of private international law discussed in this note (and also in relation to the substantive law issues which I have left out).

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.

Before the Christmas break (from 22 December 2025 to 11 January 2026), the Court of Justice will publish several decisions and opinions related to private international law.

As of 30 November 2025, the scheduled calendar includes the decision of 2 December in case C-34/24, Right to Consumer Justice et Stichting App Stores Claims.

The main dispute concerns collective action for damages brought by Dutch foundations against Apple Inc. (domicile in the US) and Apple Distribution International Ltd. (with seat in Ireland), under the Netherlands wet afwikkeling massaschade in collectieve actie (Law on the Settlement of Mass Claims in Collective Action, ‘WAMCA’), as a result of alleged infringements of Article 102 TFEU causing users of the Netherlands Apple App Store to suffer damage. The Rechtbank Amsterdam (Netherlands) requires the interpretation and application of Article 7(2) of the Brussels I bis Regulation. The central question raised is which court has territorial jurisdiction to settle these disputes and whether the Regulation offers the possibility of applying national referral rules allowing for the concentration of related claims.

A hearing took place on 10 December 2024 (see my post here). Advocate General Campos Sánchez-Bordona published his opinion on 27 March 2025:

Article 7(2) of [the Brussels I bis Regulation] must be interpreted as meaning that:

– if, in a case involving the abuse of a dominant position which consists of charging commission on the price of apps offered for sale on an online platform specifically targeted at the whole of a Member State, the sale of those apps is accepted as the event giving rise to the damage, the place where that event occurred may be situated at the domicile of a user purchasing those apps, within that Member State;

– the place where the damage occurred may be treated as the place of domicile, within the market concerned, of a user who suffered the effects of the abuse of a dominant position, by paying an additional cost when purchasing the apps;

– as EU law currently stands, the interpretation of Article 7(2) of [the Brussels I bis Regulation] does not differ where the action was brought by an entity which is qualified under national law to bring representative actions, which may include claims for damages, to protect, but not in name, the interests of multiple users;

– the allocation of international and territorial jurisdiction to a court of a Member State, as a result of the application of Article 7(2) of [the Brussels I bis Regulation], is compatible with a national rule which permits a court to decline jurisdiction in favour of another court which is already seised of a similar action, where that rule contributes to achieving the objective of the sound administration of justice, a matter which it is for the referring court to determine.

The proposals are consistent with the Court of Justice’s existing case law, which, like the Brussels I Regulation itself, was not developed with collective litigation (or torts in today’s digital world) in mind. The fact that the case has been allocated to the grand chamber (K. Lenaerts, T. von Danwitz, F. Biltgen, I. Jarukaitis, L. Arastey Sahún, I. Ziemele, J. Passer, M. Condinanzi, F. Schalin, A. Kumin, N. Jääskinen, Z. Csehi, B. Smulders, S. Gervasoni, and O. Spineanu-Matei as reporting judge) most probably indicates the Court’s intention to depart from its previous jurisprudence and, at the same time, provide guidance to the Commission in view of the recast of the current regulation.

On Wednesday 3 December a hearing will take place in case C-716/24, Ponner. The Oberlandesgericht Frankfurt am Main (Germany) has referred two questions to the Court for the interpretation of Regulation 655/2014 establishing a European Account Preservation Order procedure (the EAPO Regulation):

Must Article 2(c) of [the EAPO Regulation], read in conjunction with Recital 8 of Regulation (EU) No 655/2014, be interpreted as meaning that the opening of insolvency proceedings not covered by Regulation (EU) 2015/848 … on insolvency proceedings (recast), but conducted in a third country, precludes the issuing of an account preservation order under Article 7(1) of [the EAPO Regulation] or the forwarding of the request for account information under Article 14(3) of [the EAPO Regulation] if the national law of the Member State responsible for issuing the account preservation order recognises the insolvency proceedings in the third country concerned?

 Must the first sub-paragraph of Article 14(1) and (3) of [the EAPO Regulation] – namely the ‘reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State’ to be provided by the creditor and ‘well substantiated’ – be interpreted as meaning that circumstances which do not specifically indicate the existence of an account in the Member State concerned, but which generally imply strong economic links between the debtor and the Member State concerned, such as, for example, payments to the debtor via a payment service provider with registered office in the Member State concerned which is a subsidiary of the debtor, or the existence of an agency or branch of the debtor with registered office in that Member State?

The facts can be summarised as follows. EJ obtained an enforceable default judgment from the Landgericht Frankfurt am Main, against DX N.V., a company based in Curaçao, whose business consists of operating games of chance. On 29 May 2024, EJ requested information about the accounts it believed DX N.V. held in Cyprus, as well as their preventive seizure under Article 14 of Regulation No 655/2014. In view of the involvement of Cypriot companies in the collection of bets, EJ considered that it had reason to believe that that company held accounts in Cyprus. It also argued that DX N.V. was a ‘letterbox company’ which, as a result, had no seizable assets in Curaçao. On 5 June 2024, the request for information relating to the said bank accounts was rejected. EJ lodged an immediate appeal with the referring court against that court’s decision. In this context, it presented further evidence to establish that DX N.V. did not have any accounts in Curaçao, but may have had accounts in Cyprus. EJ also indicated that, according to the Curaçao commercial register, insolvency proceedings had been initiated in respect of the assets of DX N.V. since 10 June 2024.

The court, sitting in a chamber composed of five judges (I. Jarukautis, M. Condinanzi, R. Frendo, A. Kornezov and N. Jääskinen as reporting judge) will be supported by the opinion of advocate general R. Norkus

The same chamber is in charge of the preliminary ruling in case C-279/24, Liechtensteinische Landesbank, to be published on Thursday 4 December (see here for a summary of facts). The Oberster Gerichtshof (Supreme Court, Austria) has referred these questions to the Court:

Must the legal consequences of orders for the acquisition of financial products placed by a consumer domiciled in State A (here Italy) on the basis of an ongoing business relationship with a bank domiciled in State B (here Austria) be assessed in accordance with the law resulting from Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation) if the conditions for the application of Article 6 of the Rome I Regulation were met when the individual orders were placed but not when the business relationship was entered into and the parties had at that time chosen the law of State B for the entire business relationship in accordance with Article 3 of the Rome I Regulation?

If question 1 is answered in the affirmative:

Is the exception in Article 6(4)(a) of the Rome I Regulation applicable where a bank opens accounts for a consumer domiciled in another Member State on the basis of a contract and subsequently acquires financial products for the consumer on the basis of the consumer’s orders that are attributed to the accounts, where the consumer may (also) place the orders by means of remote communication?

If question 1 is answered in the affirmative and question 2 is answered in the negative: Must a choice of law made before the conditions for the application of Article 6 of the Rome I Regulation were met be regarded as unfair within the meaning of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts […] after those conditions were met if the contract does not refer to the legal consequences of Article 6(2) of the Rome I Regulation?

In his opinion published on 22 May 2025, advocate general R. Norkus proposes the Court should answer that

The legal effects of orders for the purchase of financial products given by a consumer residing in State A to a bank established in State B within the framework of an ongoing commercial relationship must be assessed by reference to the law designated by the parties in the contract that gave rise to the commercial relationship, even if, after that contract was concluded, the conditions for the application of Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) are satisfied and were satisfied when the various orders were placed.

The decision in case C-485/24, Locatrans, will be published one week later, on Thursday 11 December, in answer to a request from the French Cour de Cassation on the 1980 Rome Convention on the law applicable to contractual obligations:

Are Articles 3 and 6 of the [Rome Cnvention] to be interpreted as meaning that, in the case where the employee carries out the same activities for his employer in more than one Contracting State, the full duration of the employment relationship should, in order to determine the law which would be applicable in the absence of a choice made by the parties, be taken into account in order to determine the place where the person concerned habitually carried out his work or should the most recent period of work be taken into account where the employee, having worked for a certain time in one place, then carries out his activities in a lasting manner in a different place which is clearly intended by the parties to become a new habitual place of work?

I reported here on the publication of the opinion by advocate general R. Norkus, which has been commented by our editor Ugljesa Grusic in October in the EAPIL blog. The deciding chamber is composed of judges F. Biltgen, I. Ziemele, S. Gervasoni, M. Bošnjak and A. Kumin as reporting judge.

Finally, on the same day advocate general J. Richard de la Tour will publish his opinion in case C- 791/24, TERVE Production, to be decided by the same formation of judges as case C-485/24, Locatrans. The Supreme Court of Slovakia has referred three questions to the Court of Justice on the interpretation of the Brussels I bis Regulation:

Must the provisions of Article 7(1) of [the Brussels I bis Regulation] be interpreted as meaning that an action to substitute the approval of the appellant’s draft agreement concerning the purchase of shares with a court ruling should be considered an action ‘in matters relating to a contract’?

If the first question is answered in the negative, must the provisions of Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that an action to substitute the approval of the appellant’s draft agreement concerning the purchase of shares with a court ruling should be considered an action ‘in matters relating to tort, delict or quasi-delict’?

Must the provisions of Article 24(2) of [the Brussels I bis Regulation] be interpreted as also applying to the main proceedings in view of the fact that the appellant requests that the court in the main proceedings consider, as a preliminary issue, its plea that the resolution of the general meeting approving the transfer of the shares of the other shareholders (including the appellant’s shares) to the respondent is non-existent or invalid?

The dispute, which opposes a Slovak company, TERVE Production, and a Luxembourg company, Intesa Sanpaolo Holding International S.A., seeks to obtain a court order requiring Intesa to accept a draft contract for the purchase of shares belonging to TERVE.  Both were shareholders in the Slovak bank VÚB, with Intesa holding by far the majority of the shares. Following the decision of VÚB’s general meeting on 18 December 2020 to delist its shares from the stock exchange, Intesa issued, in place of the issuing bank and in accordance with the Slovak Securities Act, a mandatory public takeover bid for the purchase of all listed shares. The transfer of the shares of all remaining shareholders, carried out in connection with the exercise of the mandatory squeeze-out right pursuant to the Securities Act, was approved by the VÚB general meeting on 19 April 2021.

On 18 August 2021, asserting its mandatory sell-out right on the basis of the Slovak Securities Act, TERVE filed an action with the Okresný súd Bratislava V (District Court of Bratislava V, Slovak Republic) seeking a court order replacing Intesa’s acceptance of the draft contract for the purchase of its shares. To justify the jurisdiction of the Slovak court, TERVE relied on Article 7(1) of Regulation Brussels I bis. The court declined jurisdiction. Upon appeal by TERVE, the Krajský súd v Bratislave (Regional Court in Bratislava, Slovak Republic) set aside the decision at first instance, basing its jurisdiction on Article 7(2) of the same Regulation. Intesa lodged an appealed against that decision with the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), arguing that only the Luxembourg courts have jurisdiction, in accordance with the general rule on jurisdiction in Article 4 of the Brussels I bis Regulation.

In the main dispute Intesa claims that TERVE no longer owns the shares with respect to which Intensa’s declaration of intent is to be substituted as a result of exercising the right of squeeze-out under the Securities Law. TERVE, in turn, raises, as a preliminary questions, the validity or existence of the resolution of the general meeting of VÚB, a. s. of 19 April 2021, which approved the transfer of the shares of all the other shareholders of VÚB, a. s. to Intesa. The referring court wonders whether the fact that that annulment is not the sole or main subject matter of the proceedings at issue could nevertheless be decisive in concluding that there is exclusive jurisdiction on the basis of Article 24(2) of Regulation Brussels I bis, according to which the courts of the Member State in which the company has its registered office have jurisdiction to rule on the validity of the transfer of shares.

The request for apreliminary ruling has been allocated to a chamber composed of judges F. Biltgen (reporting), I. Ziemele, A. Kumin, S. Gervasoni and M. Bošnjak.

Denmark does not apply the Brussels II ter Regulation in jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. Jurisdiction in international parental-rights cases is assessed against domestic rules, unless the Hague Convention of 19 October 1996 on protection of children, to which Denmark is a party, provides otherwise. Under the domestic rules of Denmark, Danish courts may assert their jurisdiction on the ground that the child has habitual residence in Denmark at the time the proceedings are initiated. If the child moves during the proceedings, the courts of Denmark retain jurisdiction.

This jurisdictional rule was tested in a Supreme Court judgment of 4 September 2025 (case BS-2041/2025-HJR), where a man in Denmark, who had lived for a period with a Mexican woman and her child, claimed parental rights over the child before the Danish authorities. Although he prevailed on the international procedural issue of jurisdiction, he ultimately lost on the merits.

Background

A child was born in Ireland in 2016 to a Mexican mother and an Irish father. Shortly after the child’s birth, the mother and child moved to Mexico. In 2019, the mother married a man in Denmark and moved there together with her child. Two years after the marriage, Danish authorities granted the married couple joint custody over the child. One year thereafter, the couple separated. During a transition period of three months, the child lived with the mother’s ex-husband.

A custody dispute arose between the parties. Danish authorities decided that the child should temporarily reside with the Danish man while the parental responsibility case was pending. The temporary residence decision was not complied with and the ex-husband has not spent time with the child since the summer of 2023. In 2024, the mother moved again to Mexico with the daughter now residing with yet a new man.

Judgment

The case went to the Danish Supreme Court to determine whether Danish courts retained jurisdiction over the parental rights dispute. Before the Supreme Court, the mother argued that the case should be dismissed for lack of jurisdiction.

The Danish Supreme Court first held that Section 448 g(1)(1) of the Danish Procedural Code (retsplejeloven) provides that a case concerning parental responsibility may be heard in Denmark if the child has its habitual residence there. Referring to the preparatory works to the Procedural Code, the Supreme Court stated that Danish international jurisdiction is determined on the basis of the circumstances at the time when the proceedings are initiated. That jurisdiction remains unchanged even if the child moves from Denmark during the proceedings, unless the child moves to a Contracting State of the 1996 Hague Convention on the protection of children.

The Supreme Court found that it was undisputed that the child was habitually residing in Denmark when the parental-rights proceedings were initiated. As Mexico is not a party to the 1996 Hague Convention, there were no grounds for dismissing the case because of the child’s subsequent change of habitual residence.

On the merits, the Supreme Court, referring to the best interests of the child, concluded that the mother should have sole custody and parental responsibility for the child.

Comment

With private international law terminology, the Danish judgment is an expression of the principle of perpetuatio fori. Under article 7 of the Brussels II ter Regulation, the same jurisdictional idea of continuity applies in parental-rights cases. That the exception for a child’s change of habitual residence to another 1996 Hague Convention state also prevails was confirmed in the judgment CC, C-572/21, ECLI:EU:C:2022:562.

This post was contributed by Gilles Cuniberti, Brooke Marshall and Louise Ellen Teitz. They are the authors (with the late Peter Mankowski) of a commentary on the 2005 Hague Convention on Choice of Court Agreements forthcoming with Edward Elgar.

On 9 October 2025, the CJEU delivered its judgment in Case C-540/24, Cabris Investment already discussed yesterday on this blog and in several other interesting posts (see here and here).

The case was concerned with an exclusive choice of court agreement stipulated in a consultancy contract between two companies incorporated in the United Kingdom. The choice of court agreement provided for the exclusive jurisdiction of the commercial court of Vienna, Austria.

The CJEU was referred five questions aimed at determining the instrument applicable to the choice of court agreement. The Austrian referring court wondered whether the Brussels I bis Regulation, the 1968 Brussels Convention or a bilateral treaty between Austria and the UK applied.

It did not, however, ask whether the 2005 Hague Convention on Choice of Court Agreements applied, and the CJEU did not mention it.

So, did it apply?

International Case

Article 1 of the Hague Convention provides that it only applies “in international cases”, and that for the purposes of its rules on jurisdiction,

a case is international 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.

In deciding that the Brussels I bis Regulation did apply in this case, the CJEU followed its previous judgment in Inkreal and ruled that the Brussels I bis only applies when there is an international element, but that this international element can be constituted by the mere choice of a foreign court (within the EU). Therefore, there was an international element in this case, irrespective of whether the parties were both domiciled in the UK, and their contract had no link with any other state than the UK.

The choice of a foreign court, however, is insufficient to make a case international for the purpose of the Hague Convention, as Article 1 expressly provides that this should be determined “regardless of the location of the chosen court”.

Yet, the judgment reveals that there was another link between the case and Austria: the parties had also provided that:

This contract and the relationship between the parties shall be governed by and construed in accordance with Austrian law.

The issue arises whether a choice of foreign law is enough to make a case international within the meaning of Article 1 of the Hague Convention.

One view is that Article 1 does not exclude this possibility, as it excludes  when there is only a choice of a foreign court. One could thus consider that including a choice of foreign law – one of the ‘elements relevant to the dispute’ – could trigger the application of the Convention.

Another view is that the exclusion of the choice of a foreign court as a relevant element must be interpreted as meaning that only objective elements can be relevant, and that the parties cannot not, merely by a contractual term, turn a domestic case into an international one. This would be consistent with Article 3 of the Rome I Regulation, which excludes taking into account the choice of foreign law to determine whether a contract is international, but the Rome I Regulation does not apply in all the the Contracting States of the Hague Convention and is not the basis for interpreting the Hague Convention. However, some scholars have suggested that national law should be used to interpret the meaning of the required connection, and one can fear that the CJEU would find the Rome I Regulation definition to be controlling in its interpretation of internationality under the Convention.

By neglecting to discuss the possible applicability of the Hague Convention in Cabris Investment, it could be that both the Austrian referring court and the CJEU assumed the second view to be correct.

Territorial scope of application

Application of the Hague Convention in the Courts of EU Member States

From the perspective of the EU, the Hague Convention is an instrument of EU law, since it was concluded by the EU itself on behalf of the EU Member States (Article 216(2) of the TFEU). The effect of Article 67 of the Brussels I bis Regulation, which regulates conflicts with EU instruments, is that the Brussels I bis gives way to the Hague Convention where the Hague Convention applies.

Article 26(6) of the Hague Convention governs its relationship with the Brussels I bis Regulation. According to it, the Hague Convention

shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention, whether adopted before or after this Convention … a) where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation.

In effect, it therefore provides that the Convention gives way to the Brussels I bis when all parties are resident in an EU Member State.

The question that the facts of Cabris Investment invites is when the residence of the parties is to be adjudged for the purposes of Article 26(6)(a). If their residence is be assessed at the time of the conclusion of the choice of court agreement, then the Hague Convention would appear to give way to the Brussels I bis on these facts, since the agreement was concluded during the transition period, during which time the UK was to be treated, both for the purposes of the Brussels I bis and the Hague Convention, as though it were an EU Member State. If, instead, the residence of the parties is to be assessed at the time proceedings were commenced, which was after the end of the transition period, then the Convention would apply and not give way to the Brussels I bis Regulation.

In our forthcoming commentary, it is suggested that the relevant point in time to assess the parties’ residences under Article 26(6)(a) should be determined by the same yardsticks as are prevailing elsewhere under the Convention. As mentioned above, it is also suggested that for the purposes of Article 1 that a case should be treated as international if it is international either at the time of conclusion of the choice of court agreement or at the time proceedings are commenced. Applied to Article 26(6)(a), that would suggest that the Hague Convention should apply if both parties were resident in a Contracting State that is not an EU Member State either at the time the agreement was concluded or at the time the proceedings were commenced. If that view is right, the facts of Cabris Investment properly fell within the territorial scope of the Hague Convention, not the Brussels I bis Regulation.

Application in the UK

From the perspective of the UK, whose courts will most likely be called upon to recognize or enforce the Austrian judgment, whether the Austrian court assumes jurisdiction based on Brussels I bis Regulation or the Hague Convention will ultimately matter little. The mere fact that recognition or enforcement of an Austrian judgment is sought before a court in the UK is enough to satisfy the criterion of internationality in Article 1(3) of the Hague Convention. The mere fact that the Austrian courts were nominated in an exclusive jurisdiction agreement would mean that an English court, for example, would enforce the Austrian judgment under Chapter II of the Hague Convention. That is so regardless of the basis on which the Austrian court ultimately assumes jurisdiction.

On 3 July 2025, Advocate General Norkus delivered an opinion in Case C‑485/24 Locatrans Sarl v ES ECLI:EU:C:2025:528.

The case concerns the determination of the habitual place of work under Article 6(2)(a) of the 1980 Rome Convention on the law applicable to contractual obligations of a driver who, under a single employment contract, worked for his employer in two distinct stages: first, across several states, and later, during the period preceding the end of the employment relationship, on a permanent basis in a single state.

The opinion is significant because it sheds light on how Article 6(2)(a) of the Rome Convention applies to a novel situation, though it may be criticised for lacking clarity and consistency with earlier case law.

Facts

Locatrans Sàrl is a transport company established in Luxembourg. ES was resident in France. The parties entered into an employment contract on 15 October 2002, which stipulated, inter alia, that Luxembourg law would apply and that the countries essentially covered by the transport business were Germany, the Benelux countries, Italy, Spain, Portugal and Austria. On 31 March 2014, Locatrans informed ES that, after analysing his activity over the preceding 18 months, it had found that he had carried out more than 50% of his employment activity in France and that it was therefore obliged to register him with the French social security system. Following the termination of his contract, ES brought proceedings in France on 8 January 2015.

The referring court (the French Cour de cassation – Chambre sociale) was unsure whether, for the purposes of determining the habitual place of work under Article 6(2)(a) of the Rome Convention, it should take into account the entire duration of the employment relationship (which, according to the referring court, would point to the application of Luxembourg law, under which the claim would fail) or the most recent period of work (which, according to the referring court, would point to the application of French law, under which the claim would succeed) “where the employee, having worked for a certain time in one place, then carries out his…activities in a lasting manner in a different place which is clearly intended by the parties to become a new habitual place of work” ([17]).

Novelty of the Situation

The Court of Justice of the European Union has addressed the determination of the habitual place of work under European private international law instruments in cases involving changing working patterns, beginning with Mulox and Rutten (concerning itinerant commercial representatives) and Weber (concerning a cook working on a ship and an offshore installation). It has also considered the habitual place of work of a lorry driver in Koelzsch.

However, in none of these cases did the Court directly addressed the situation of an employee who first worked in several states and then, on a permanent basis, in a single state, where the claim concerned the termination of employment.

AG Opinion

The conclusions of the Advocate General are not surprising. He opined that, where the state in which the work is carried out during the second stage is clearly intended by the parties to become a new habitual place of work, and where the dispute concerns the termination of the contract, it is necessary to refer to the most recent period of work ([58]). Furthermore, 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 (tempus regit actum)” ([51]).

The opinion is noteworthy for the way in which it positions Locatrans within the existing case law. However, it may be criticised for a lack of clarity regarding the meaning and relevance of the “temporal criterion”, as well as for inconsistency with an earlier AG opinion on the role of the parties’ intention in changing the habitual place of work.

Locatrans and Earlier Case Law

In Mulox and Rutten, the employees had offices in their places of residence. The CJEU held that this was the crucial factor in determining the habitual place of work.

In Weber, the employee did not have an office and therefore no professional base from which he worked. According to the CJEU, where an employee carries out the same kind of work in two or more countries, the habitual place of work ‘is, in principle, the place where [the employee] spends most of his working time’ (Weber, [50]), assessed over the entire period of employment (Weber, [51]-[52]), unless the intention of the parties (Weber, [54]) or the link between the subject-matter of the dispute and another place of work (Weber, [58]) indicate that that place of work should be regarded as the habitual place of work. However, where an employee carries out different kinds of work in two or more countries, qualitative criteria relating to the nature and importance of the work carried out in each country become relevant (Weber, [58]).

In Koelzsch, the CJEU held that, in determining the habitual place of work of a lorry driver, the referring court had to take particular account of the place from which the employee carried out his transport tasks, received instructions concerning his tasks and organised his work, the place where his work tools were located, the places where the transport was principally carried out and where the goods were unloaded and the place to which the employee returned after the completion of his tasks (Koelzsch, [49]).

In Locatrans, the Advocate General tied together these strands of case law in the following way:

I would point out, first, that…the general rule that the country in which the employee habitually carries out his or her work in performance of the contract is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the essential part of his or her duties vis-à-vis his or her employer… is the starting point for the assessment by the national courts in all cases where, as in the present case, the employment contract is performed in the territory of several Contracting States. ([47], footnotes omitted)

In the second place,… in order to identify the State which may be regarded as ‘the place in which or from which’ the employee performs the greater part of his or her obligations towards his or her employer, the Court has established qualitative and temporal criteria which the national courts must take into consideration. However, although, according to the Court, the temporal criterion must, in principle, take into account all of an employee’s term of employment with his or her employer, the Court has provided for the application of that temporal criterion in the specific case where the subject matter of the dispute in question is ‘more closely connected with a different place of work’. In that case, it is the most recent period of work which should be taken into account by the national court in its assessment, and not all of an employee’s term of employment. ([48], footnotes omitted)

… the referring court’s question appears to lie at the intersection of two lines of case-law that appear, at first sight, to be distinct. However, … despite their apparent divergence, those two approaches form part of a single line of case-law under which the Court of Justice has established a general rule based on taking account of qualitative and temporal criteria in its application. In that regard, it should be borne in mind that the national courts must take account of the qualitative criterion, which is the decisive criterion. However, in the absence of qualitative elements, or where they are not sufficiently precise, the temporal criterion becomes relevant. Moreover, those two criteria may be concomitant and complementary. In all cases, national courts must take into account the principle of proximity and the protection of workers. ([50], footnote omitted)

The “Temporal Criterion”

This is where the opinion becomes a bit unclear. What is the “temporal criterion”? What is its relevance?

According to the Advocate General, the “temporal criterion” was laid down in Weber. It will be remembered that in this case the CJEU held that, where an employee carries out the same kind of work in two or more countries, the habitual place of work ‘is, in principle, the place where [the employee] spends most of his working time’ (Weber, [50]) assessed over the entire period of employment (Weber, [51]-[52]).

But there is a caveat: the intention of the parties (Weber, [54]) or the link of the subject-matter of the dispute with another place of work (Weber, [58]) may indicate that that place of work should be regarded as the habitual place of work. Although, according to the Advocate General, this might, at first sight, appear to be an exception to the “temporal criterion”, it is

rather the application by the Court of that temporal criterion to a specific situation. The Court has stated that weight will be given to the most recent period of work where the employee, after having worked for a certain time in one place, then takes up his or her work activities on a permanent basis in a different place, since the clear intention of the parties is for the latter place to become a new habitual place of work. (Locatrans, [46])

I doubt the correctness of referring to this caveat as the specific application of the temporal criterion. The Advocate General’s classification seems to lie in the fact that he separated all criteria relevant for determining the habitual place of work into “qualitative” and “temporal”. While “qualitative” criteria are “based on the nature and importance of work done in various places within the Contracting States” (Locatrans, fn 58), “quantitative” criteria are “based on the relative duration of periods of time spent working in each Contracting State” (Locatrans, fn 59). It seems that, because the parties can agree to change the place of work without changing the nature or importance of work done in various places, the Advocate General classified the intention of the parties as a “temporal” criterion.

But this seems to be a category error. Criteria relevant for determining the habitual place of work can be divided into “objective” and “subjective”. The intention of the parties is a subjective criterion. Other criteria listed above are objective and can be further divided into “qualitative” and “temporal”.

The Advocate General’s classification of the criterion of parties’ intention did not affect the outcome of the case, but it did reduce the clarity of his argument.

Role of Parties’ Intention

The last point I want to make is the statement made by the Advocate General in [51] of his opinion:

since one of the objectives of the Rome Convention is to fortify confidence in the stability of the relationship between the parties to the contract, a change in the applicable law resulting from changes in factual circumstances must also be the result of a clear intention on the part of the parties (emphasis added)).

This seems to indicate that the habitual place of work can change only if both the factual circumstances and the intention of the parties change.

However, this conflicts with the dicta from the opinion of Advocate General Wahl in Schlecker, where Advocate General Wahl gave an example of “a very long posting (over 10 years)” (Schlecker, [43]) which would lead to the change of the habitual place of work regardless of what the parties initially intended. It is a shame that the Advocate General did not explain how this point fit into the determination of the habitual place of work.

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?

On 17 September 2025, the French Supreme Court for private and criminal matters (Cour de cassation) delivered four judgments ruling on the validity of jurisdiction clauses, including in the Società Italiana Lastre SpA (SIL) v. Agora SARL case which the court had referred to the CJEU. The four judgments gave the opportunity to the Cour de cassation to apply the ruling of the CJEU, but also to interpret it.

Background

Readers will recall that in Case C‑537/23, Società Italiana Lastre SpA (SIL) v. Agora SARL, the CJEU ruled that

an agreement conferring jurisdiction pursuant to which one of the parties thereto may only bring proceedings before the sole court that it designates whereas it permits the other party to bring proceedings before, in addition to that court, any other competent court, is valid, in so far as, first, it designates courts of one or several States which are either Members of the European Union or parties to the [2007 Lugano Convention],  secondly, it identifies objective factors which are sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, and, thirdly, it is not contrary to the provisions of Articles 15, 19 or 23 of that regulation and does not derogate from an exclusive jurisdiction pursuant to Article 24 thereof.

In this case, the relevant jurisdiction clause was included in a supply agreement, and provided:

the court of Brescia [(Italy)] will have jurisdiction over any dispute arising from or related to this contract. [SIL] reserves the right to bring proceedings against the purchaser before another competent court in Italy or elsewhere.

The first requirement laid down by the CJEU seemed to mean that if a clause was drafted in such a way that it could be interpreted as granting jurisdiction to courts outside the EU/Lugano judicial area, it was not sufficiently precise and thus was invalid. But the CJEU fell short of saying it. As a result, commentators disagreed on whether the relevant clause was actually valid (see here, here and here).

Far from settling the issue, Lastre had given rise to new issues of interpretation, that national courts would have to address, starting with the referring court, the Cour de cassation (which rejected requests to refer further questions to the CJEU on the meaning of the judgment).

Was this clause valid, then?

Effet Utile and Narrow Interpretation

The Cour de cassation rules that the CJEU left the interpretation of asymmetric jurisdiction clauses to national courts, and that, pursuant to Recital 19 of the Preamble to the Brussels I bis Regulation and paragraph 56 of the judgment of the CJEU in Lastre, this should be done by respecting the will of the parties, including by giving it an effet utile.

S’agissant de la réserve exprimée au point 60 de son arrêt, la Cour de justice renvoie cependant au juge national le soin d’interpréter la clause, le cas échéant afin de lui faire produire un effet utile pour se conformer à l’autonomie de la volonté des parties dont le respect nécessaire est aussi rappelé au considérant 19 du règlement Bruxelles I bis et au point 56 de l’arrêt.

In this context, it seems that the Court understands giving an effet utile to the clause as meaning that the clause should be interpreted in way which validates it rather than in a way which does not.

The Court then rules that, where the contractual relationship does not have any  objective connection with a third State, a jurisdiction clause providing that any ‘competent court’ has jurisdiction’ must be interpreted as referring only to courts of the Member States or of States parties to the Lugano Convention so that it meets the test of the CJEU. In Lastre, the Cour de cassation rules that in the absence of any objective connection of the contract with a third State, the clause should be interpreted as referring to ‘competent courts’ as designated by the Brussels I bis Regulation or the Lugano Convention, and should thus be found to be valid. As the result, the Court declines the jurisdiction of French courts.

The judgment suggests that the Cour de cassation considered that it was faced with two options. The first was to find that the geographical scope of the clause was not limited, and that it thus, on the face of it, granted jurisdiction to any court of a third State which might retain jurisdiction under its own jurisdictional rules. But such a clause would not meet the requirements laid down by the CJEU, and would have to be invalidated. The second option was to narrow the interpretation of the clause in order to validate it and to find that it only granted jurisdiction to the courts of EU/Lugano States. The Cour de cassation chose the second option and ruled that, in effect, the effet utile principle entails a validation principle.

Additional Role for Objective Criteria

The effet utile interpretation of the Cour de cassation was tested in one of the four cases which involved African parties only. An Egyptian bank had lent money to a Cameroon company. The repayment of the loan was secured by a personal security issued by an individual based in Cameroon. The loan provided for the exclusive jurisdiction of the commercial court of Paris (which confirms that French courts are an attractive forum for parties from francophone Africa), but the security contract provided:

Without prejudice to the right of the beneficiary or creditors to bring legal proceedings before the courts in whose jurisdiction the assets of the caution are located, the caution irrevocably accepts that any dispute relating to this deed of cautionnement shall be brought before the Commercial Court of Paris.

Clearly, it was difficult to consider that the parties only contemplated European courts when they drafted this clause.

Nevertheless, the Cour de cassation rules that the clause satisfies the Lastre test, because the clause relied on an objective criterion, namely the location of the assets of the debtor, to grant jurisdiction, and that this suffices to validate the clause. In this case scenario, it is unnecessary to rely on the rules of the European law of jurisdiction to determine the competent courts.

— H/T: Marie-Elodie Ancel

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!

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.

A recent judgment from the Swedish Supreme Court interprets the principle judgments from the Court of Justice of the EU (CJEU) holding arbitration in investment arbitration as incompatible with EU law as conservatively as possible by allowing for invalidation only for “EU internal” relations. Hence, the arbitral award is upheld in relation to a Swiss investor, but invalidated in relation to EU investors. Still, the peculiar Swedish invalidation action that is not limited in time and that exists as an alternative to a traditional time-limited actions of having an arbitral award set aside, raises the question whether a Swedish arbitral award ever is final. As much speaks for that time-limited challenging possibilities are sufficient, the Swedish lack of time-limitation stands out and declines the international value of a Swedish arbitral award compared to other arbitral seats.

Background

Five investors initiated arbitration proceedings against the Republic of Poland under the Energy Charter Treaty (ECT). Whereas four of the investors were domiciled in the EU, the fifth investor was a Swiss citizen domiciled in Switzerland. The investors claimed that actions taken by the Polish state had made their investments in Poland useless. The arbitral tribunal dismissed the investors’ claims and held them liable to pay all the costs related to the arbitration procedure.

As the arbitral tribunal had had its seat in Sweden, the investors challenged the arbitral award in the Svea Court of Appeal, claiming that it should be invalidated according to Section 33 of the Swedish Arbitration Act (officially: lag [1999:116] om skiljeförfarande) as the arbitration clause was incompatible with EU law and hence also incompatible with Swedish public policy (ordre public).

Historically, the Swedish public policy exception has been conservatively used. However, since the EU court of justice held in its landmark judgment Achmea, C-284/16, EU:C:2018:158 that has changed. As follows from the Achmea ruling, arbitration clauses in bilateral investment treaties are incompatible with EU law. This has challenged the Swedish traditional approach to the public policy exception. Not only has the CJEU confirmed that the legal principle also extends to ECT arbitration (Komstroy, C-741/19, EU:C:2021:655), it has also, on the request of the Swedish Supreme Court, held that the legal principle stands also in a situation when an investor has initiated ad hoc arbitration against a state (PL Holdings, C-109/20, EU:C:2021:875). Applying the legal principles of the CJEU, the Swedish Supreme Court held in its final judgment (judgment in case T 1569-19 of December 14, [in Sweden reported as “the Investment Agreement”, NJA 2022 p. 965]) that an “EU internal” investment agreement is incompatible with EU primary law and that it therefore must be considered to be ordre public in Sweden.

With references to the judgments above, Svea Court of Appeal found in its judgment of December 20, 2023 that the arbitral award was to be invalidated in its entirety. That judgment was appealed to the Swedish Supreme Court that made another assessment of the invalidation issue.

The Supreme Court’s Judgment

In its judgment of 26 May 26, 2025 in case T-555-24 (titled “Blue Gas Holding”, not yet given a Swedish NJA-reference) the Supreme Court emphasized that the Swedish Arbitration Act allows for partial invalidation of an arbitral award and that a strong rationale for arbitration is that awards become final and binding. Therefore, the Supreme Court concluded that invalidation must not be used more than what is necessary. In the delicate assessment of what parts of an award that are separable from each other, the Supreme Court held that it is decisive whether a remaining standing part of the award would constitute res judicata for a new trial of the other parts of the award. In such a case, the parts are not separable.

In this case, the Supreme Court stressed that the invalidation ground based on the Achmea principle applied solely to “EU internal” investment agreements. Since the Swiss investor was to be considered a third country investor under the ECT, the legal relationship between Poland and the Swiss investor did not classify as “EU internal”. The Achmea based ground for invalidation of the arbitral award did not extend to him. Hence, that part of the award could also be treated separately from the remainder of the dispute.

In the case at hand, the Supreme Court ruled that the validation ground based on the Achmea principle only concerned “EU internal” investment agreement. As the legal relationship between Poland and the Swiss investor was not such an “EU internal” relation, it could be treated separately from the rest of the dispute. As the Swiss investor was to be considered a third country investor, the ground for invalidation of the arbitral award did not extend to him. Therefore, the Supreme Court concluded that the arbitral award should not be invalidated regarding the relation between the Swiss investor and Poland. Additionally, the Swiss investor was held liable to pay for the arbitral proceedings as well as for the court procedure.

Comment

Even if it is reasonable and clarifying that the Swedish Supreme Court upholds the finality idea of arbitral awards as much as possible, the judgment raises issues of the Swedish Arbitration Act’s peculiar separation of invalidation issues and the possibility to setting awards aside. The Swedish Arbitration Act stands out internationally by having two separate legal possibilities for challenging arbitral awards. An arbitral award can either be set aside under Section 34 on e.g. the grounds that the arbitrators have exceeded their mandate or if there has been an irregularity that has influenced the outcome. Such an action must be brought within two months from the date the award was rendered. Beside the time-limited possibility of setting an arbitral award aside, an award may also be invalidated under Section 33 if e.g. the matter was unarbitrable or if the award is ordre public. Quite notably, a Swedish invalidation action is not time-limited. The idea behind is that invalidation is reserved for grave breaches, e.g. that an arbitral award is incompatible with Swedish public policy (ordre public).

That invalidation actions now has been made accessible for new types of arbitral awards, one can question whether a Swedish arbitral award is less firm (i.e. not fully final) compared to an award rendered under an arbitral seat that does not offer time-unlimited actions against arbitral awards. The issue boils down to whether the Achmea principle requires that actions against wrongful arbitral awards are unlimited in time or whether it is sufficient to time limit such challenges. This issue is left open in the Achmea judgment. However, in the predecessor landmark case EcoSwiss, C-126/97, EU:C:1999:269, the CJEU not only established the principle that national law must not undermine EU law. It actually did examine a national procedural law time-limit for challenging an arbitral award. The Court held that “[s]uch a period, which does not seem excessively short compared with those prescribed in the legal systems of the other Member States, does not render excessively difficult or virtually impossible the exercise of rights conferred by Community law”. Bearing that in mind, much speaks for that challenge actions may be time-limited. A time-limitation of the Swedish invalidation action seems necessary to mitigate the effects of the Achmea ruling for Swedish arbitration to be an attractive alternative in the highly competitive legal market for international commercial arbitration. On the other side, the invalidation possibility under Swedish law can also be viewed as putting pressure on the arbitrators to render effective and enforceable awards.

This post was written by Marco Buzzoni,  Doctoral Researcher at the Luxembourg Centre for European Law (LCEL).

By a post of 16 July 2025, Professor Gilles Cuniberti reported on this blog about a ruling of the Grenoble Court of Appeal that refused enforcement of a Luxembourg judgment because the certificate required by Article 53 of the Brussels I bis Regulation had neither been provided to the French enforcement authority nor served on the debtor prior to the first enforcement measure.

The post draws attention to an important and yet often overlooked feature of the Brussels I bis Regulation: the role of the Article 53 certificate in cross‑border enforcement proceedings. Echoing some of Professor Cuniberti’s earlier contributions (in English, see, eg, here and here), the post emphasises the ‘formal’ character of the certificate and urges a more liberal redrafting of Articles 42 and 43 of the Regulation.

While I share Professor Cuniberti’s concern for streamlining cross-border enforcement among Member States, I contend that the certificate fulfills an important function under the Regulation. As the Commission is currently considering a new recast, this post therefore advances reasons to reinforce, rather than undermine, its significance within the overall Brussels I bis system.

Leaving aside the specifics of the Grenoble case, Professor Cuniberti’s core arguments rightfully shed light on a major ambiguity concerning the value of Article 53 certificates.

According to the conventional interpretation, the Article 53 certificate is often perceived, as Professor Cuniberti argues, as a ‘purely formal requirement which serve[s] no purpose’ other than facilitating the tasks of enforcement authorities in the Member State of enforcement. This reading purportedly aligns with earlier case law issued by the Court of Justice under Regulation 44/2001 (ECJ, Case C-619/10, Trade Agency), and draws on distinctions between this Regulation and subsequent ‘second-generation’ instruments that abolished exequatur proceedings, such as Regulation 805/2004 (the ‘EEO Regulation’) and Regulation 1896/2006 (the ‘EOP Regulation’).

On further reflection, however, the abolition of exequatur in the 2012 Brussels I recast raises the question of how the responsibilities once handled at that intermediate stage should now be divided between the court of origin and the authorities of the Member State(s) of enforcement. These responsibilities may involve disputes about the enforceability of the judgment, as well as interpreting the scope of the obligations arising from it. To the extent that the Article 53 certificate contains some information on each of these points, one might wonder which role it should play in allocating tasks between the State of origin and the State(s) of enforcement.

Against this backdrop, Professor Cuniberti advances some theoretical and practical reasons to keep treating the Article 53 certificate as a ‘mere formality’. To do so, he relies in particular on the wording of Article 39 of the Brussels I bis Regulation, which provides: ‘A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required’.

Relying on this principle, Professor Cuniberti argues that enforcement should be carried out as expeditiously as possible. As a matter of policy, he thus advocates for suppressing the service requirement under Article 43 of the Regulation, and contends that the lack of the certificate should not necessarily impede the enforcement of the underlying judgment in the other Member States.

In my view, this approach may overlook a critical point: if the enforceability of the judgment in the Member State of origin is indeed a paramount requirement for cross-border enforcement, which authority is best suited to determine whether this prerequisite is met when a dispute arises between the parties?

From Professor Cuniberti’s standpoint, the answer is simple: disputes about the (un)enforceability of the judgment under Article 39 of the Brussels I bis Regulation can be adjudicated in the Member State of enforcement, even though the issues presented will almost always be governed by the domestic procedural law of the Member State of origin. Although that answer fits traditional conflict‑of‑laws logic, this outcome may seem at odds with the (admittedly implicit) allocation of tasks created by Articles 42, 43 and 53 and with the Regulation’s broader objectives.

In my opinion, these provisions should be interpreted as conferring on the court of origin the authority to rule conclusively on issues such as the judgment’s enforceability and the precise content of its operative part, using the certificate as the vehicle for doing so. Rather than downgrading the Article 53 certificate, the forthcoming recast of Brussels I bis should therefore consider strengthening it.

An Implied Allocation of Authority Favouring the Court of Origin

By requiring creditors to provide the enforcement authorities with the Article 53 certificate and to serve it on the debtor prior to the first enforcement measure, Articles 42 and 43 of the Brussels I bis Regulation effectively allow disputes concerning the enforceability of the judgment and other issues concerning the title to be pre-emptively settled by the authorities in the Member State of origin in accordance with their own law, rather than to be second-guessed by the authorities in the Member State(s) of enforcement based on the interpretation of foreign law.

When issuing the certificate under Article 53, the court of origin must indeed declare, inter alia, whether the judgment has already become enforceable ‘without any further conditions having to be met’, whether it can be enforced against all defendants or only some of them, and under which terms (see Annex I to the Regulation).

By expanding the role of the Article 53 certificate compared to its predecessor, the Brussels I bis Regulation has thus implicitly displaced traditional conflict-of-laws solutions in a manner consistent with the abolition of exequatur, which is inspired by the idea that challenges against the decision should, when possible, be adjudicated in the Member State of origin (see eg Articles 45(1)(b), (2), and (3) of the Brussels I bis Regulation).

In my view, the determinations made by the court of origin in the certificate should be binding on the authorities in the Member State(s) of enforcement, provided they do not fall within one of the grounds for refusal of recognition and enforcement set out in Article 45 of the Brussels I bis Regulation. This position is consistent with the Court of Justice’s holding in Trade Agency (cit above), and also comports with the Court’s statement that the Article 45 grounds are exhaustive (ECJ, Case C-139/10, Prism Investments).

In addition to fostering the principle of mutual trust, this solution also acknowledges the practical reality that the court of origin is better positioned to adjudicate questions requiring the application of its own procedural law. If Professor Cuniberti is correct in noting that, in most cases, a Luxembourg judgment looks ‘identical to a French judgment’, that might not always be true in all contexts (for how difficulties may arise even among similar legal systems, see, eg, Cass Civ 2, 2 Dec 2021, No 20-14.092). Furthermore, this approach also prevents fragmentation that might arise in case of conflicting rulings stemming from parallel enforcement attempts in several Member States.

In my view, the same rule of deference towards the certificate should also apply to disputes concerning the applicability of the Brussels I bis Regulation as a whole. Indeed, deciding whether a national measure constitutes a ‘judgment’ within the meaning of Article 2(a) of the Regulation (ECJ, Case C-568/20, H Limited), or whether the legal proceedings were ‘instituted’ on or after the relevant date set out in the Regulation (ECJ, Case C‑99/24, Chmieka) may at times require a technical assessment of the content of domestic procedural rules, which is best to be left to the court of origin acting under the supervision of the Court of Justice (see eg ECJ, Case C-579/17, Korana). Indeed, this approach seems to correspond to an emerging trend observed during the empirical research conducted in the course of the EFFORTS Project (see, in particular, M Buzzoni and C Santaló Goris, Report on Practices in Comparative and Cross-Border Perspective, 2022, pp 18-20).

Necessary Improvements to the Current Enforcement Framework

Even though I disagree with Professor Cuniberti’s conclusions, I nonetheless largely share his critiques about the current drafting of Arts 42, 43, and 53. Indeed, these provisions not only create considerable uncertainty about how the Regulation’s uniform rules interact with the law of the Member State of origin and that of the Member State of enforcement, but also leave major gaps in the procedure governing the issuance of Article 53 certificates.

To address these difficulties, the EU legislature should therefore consider several measures to streamline cross-border enforcement and to advance the path opened in 2012 by the abolition of exequatur:

Firstly, the contents of the certificate should be refined and updated to better reflect the diversity of judgments covered by the Regulation (see eg Bundesgerichtshof, 25.01.2018, IX ZB 89/16, BeckRS 2018, 1121).

Secondly, Article 53 of the Brussels I bis Regulation should clarify that the certificate must be issued by a judge (ideally, the one who issued the decision whose enforcement is sought).

Thirdly, the provision should also set out a lean procedure for issuing the certificate, explicitly allowing any interested party to request it during the merits proceedings or to apply ex parte after the judgment and setting a short time‑limit to issue the certificate.

Fourthly, the Regulation should create a uniform remedy in the State of origin for challenging wrongly issued certificates, keeping disputes from spilling into the requested State(s). The appeal should be subject to a strict time limit and distinguish between certificates issued ex parte versus those granted after adversarial proceedings.

Fifthly, creditors should likewise have a prompt remedy against refusals to issue the certificate or against certificates whose content is inaccurate.

Sixthly, retain the rule that the certificate must be served—under the service rules of the State of origin—on the person against whom enforcement is sought before the first enforcement measure. That service triggers the debtor’s right to challenge the certificate in the State of origin and to file a pre‑emptive Article 45 action for refusal of recognition.

Finally, the Regulation should clarify that contesting the certificate does not preclude enforcement abroad, although the measures set out in Article 44 of the Brussels I bis Regulation remain available.

The forthcoming recast gives the EU legislature a rare chance to explicitly codify the allocation of authority between the court of origin and the authorities of the Member State of enforcement. For the reasons set out above, I believe a swiftly issued, judicially reviewable Article 53 certificate — served on the debtor before the first enforcement measure — delivers upstream certainty and downstream efficiency. It lets the court of origin apply its own procedural law, spares enforcement authorities from second‑guessing foreign rules, and gives debtors a single point of challenge in case of parallel proceedings across Member States.

Far from encouraging procedural chicanery, strengthening the certificate is the logical next step toward the Regulation’s promise of mutual trust and the free circulation of judgments. Rather than downplaying its importance, the Commission should elevate the Article 53 certificate so that it serves as a trait d’union between Europe’s diverse judicial systems.

An employment dispute between a Greek stewardess and her employer offered the Supreme Court of Greece the opportunity to discuss the interpretation of Articles 20 and 21 of the Brussels I bis Regulation, on jurisdiction over individual employment contracts. The Supreme Court’s ruling on the matter (Ruling No 1453 of 2024) relies heavily on the judgment of the Court of Justice in the case of ROI Land Investments.

Background and Facts

A dispute arose between a Greek stewardess living in Piraeus (hereinafter, the plaintiff, or P) to an air carrier established in Saudi Arabia (the first respondent, or R1) and the CEO of the latter (the second respondent, or R2).

The business of R1 consists in carrying State and government officials and senior executives of Saudi companies. On 11 July 2022 P was working on a flight operated between Geneva and Cairo, on board a plane owned by R1, when, shortly after the pilot’s announcement that the landing procedures had started, a sudden loss of control of the plane caused serious injuries to P. As soon as the plane landed in Cairo, P was brought to the nearest hospital. She was later transported to Greece, where she underwent numerous operations. Wh was eventually diagnosed with a 90% professional incapacity

P decided to bring proceedings before the Piraeus Court of First Instance, alleging the accident had been caused by the negligence of her employer’s agents during the flight.

The following facts are undisputed: an employment contract was concluded in Greece, signed by P and R2; R2 had signed  the contract in his capacity as the CEO of R1, hence on behalf of R1; P was to be reimbursed by R1 for any costs incurred to travel between Piraeus and any airport she was instructed to go to serve as stewardess under the contract; P used to spend the time between flights at special dormitories in Riyadh, owned by R1; R2 had no domicile in Greece, but temporarily resided there.

The First Instance and Appellate Rulings

P’s sued R1 and R2 before the Piraeus Court of First Instance in 2018, seeking compensation for lost income, patrimonial and moral damages and reimbursement for medical expenses, requesting a total amount close to 3 million Euros. R1 did not enter an appearance. R2 appeared, instead, but challenged the jurisdiction of Greek courts.

The Piraeus Court dismissed the latter defence and asserted its jurisdiction over the case (decision No 1840/2021, unreported). It did so on the basis of domestic rules, namely Article 33 of the Greek code of civil procedure (whereby Greek courts have jurisdiction to entertain a case relating to a contract, where the latter was concluded in Greece), Article 37 of the same code (whereby several defendants can be jointly sued in Greece where one of them resides in the country), and Article 40 (which confers jurisdiction on Greek courts where the defendant owns property in Greece, as R2 did in the circumstances).

Unhappy about the provisions of the ruling regarding the substance of the dispute, P lodged an appeal before the Piraeus Court of Appeal. The Court of Appeal determined that the Greek courts lacked jurisdiction. It observed that the dispute fell within the scope of Section 5 (on individual employment contracts) of Chapter II (on jurisdiction) of the Brussels I bis Regulation.

Specifically, the Court of Appeal considered that pursuant to Article 21(1)(b), which also applies to employers domiciled outside the EU (according to Article 21(2)), an employer may be sued: (i) in 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; or (ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated. The Court found, however that none of the latter conditions were met in the circumstances.

The Court of Appeal then turned to Article 6(1) of the Regulation. This provides that, if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State is determined by the law of that Member State. However, contrary to the view endorsed at first instance, it considered that the jurisdiction of Greek courts could not be asserted, in the circumstances, on the basis of Greek domestic rules. The Court of Appeal held, in particular, that the the First Instance Court had erred in asserting that the disputed contract was concluded at the plaintiff’s residence (in Piraeus).

The case, in the view of the Court of Appeal, fell under the objective purview of Article 21 of the Brussels I bis Regulation, on jurisdiction over individual employment contracts. The Court of Appeal ruled that the necessary conditions for extending international jurisdiction under Article 21 were not met, particularly concerning the absence of an express agreement between the parties regarding the attribution of jurisdiction to Greek courts.

This assertion refers to domestic procedural law, specifically Article 33 of the Greek Code of Civil Procedure, the application of which is not permitted. Based on the above, it follows that the first instance court did not have international jurisdiction to adjudicate the dispute. By ruling otherwise, it erred in the interpretation and application of the Brussels I Regulation.

The Court of Appeal went to note that P could not rely on Greek procedural law (Articles 22, 33, and 37 of the Code of Civil Procedure), given the clear provisions of the Brussels I bis Regulation, It concluded that the lower court made an erroneous assumption by evaluating the jurisdiction based on domestic law rather than the provisions of the Regulation.

The Court of Appeal ultimately dismissed the lawsuit on grounds of jurisdiction, since the Court of First Instance had not taken into account the Brussels I bis Regulation and had failed to see that the Greek do not possess jurisdiction over the case under the Regulation.

The Ruling of the Greek Supreme Court

By the time the case reached the Supreme Court of Greece, the legal landscape surrounding the case had changed, notably as a result of the clarification provided by the Court of Justice of the European in ROI Land Invstment regarding the application of Article 6 of the Brussels I bis Regulation in litigation over employment matters. In 2022, the Court of Justice ruled in ROI Land Investment that the reservation made in Article 6(1) of the Regulation in respect of the application of Article 21(2) precludes a court of a Member State from relying on the domestic rules of jurisdiction ‘where the conditions for Article 21(2) of that regulation to apply are satisfied, even where those rules would be more favourable to the employee’. Instead, where the conditions for either Article 21(2) or any other of the provisions set out in Article 6(1) of the Regulation to apply are not satisfied, Article 6(1) must be interpreted as a meaning that ‘a court of a Member State is at liberty to apply those rules in order to determine jurisdiction’.

Relying on Articles 6(1) and 21(2) of the Brussels I bis Regulation, together with Articles 3, 4, and 33 of the Greek Code of Civil Procedure, the Supreme Court of Greece found that the Court of Appeal had erred in declining jurisdiction. It held that Greek dohave jurisdiction to adjudicate claims arising from an employment contract for compensation due to a workplace accident, as the employment contract from which these claims arose was concluded in Greece for the purposes of Article 33 of the Greek Code of Civil Procedure.

The latter provision, the Supreme Court explained, applies in the circumstances: (a) because it concerns claims made by an employee arising from an individual employment contract against an employer whose registered offices are not in a EU Member State, but rather in a country outside the Union, namely Saudi Arabia; and (b) because the conditions for applying Article 21(2) or any other provisions of Article 6(1) of the Regulation for determining international jurisdiction of Greek courts are not met; the Greek courts are neither the courts of the place of habitual performance of her work as a flight attendant, nor the courts of the place of establishment of the business that hired her, which is distinct and not identical to her employer’s business, and there was no explicit agreement between the parties regarding the extension of international jurisdiction for Greek courts.

Concluding Remarks

While the Court of Appeal emphasized the primacy of the Regulation over domestic law, the implications of domestic rules on jurisdiction at the place of conclusion of the contract remain of crucial importance. The case highlights the complex interplay of domestic rules and EU rules concerning jurisdiction in employment matters, and underlines the need for a nuanced understanding of both sets of provisions.

On 17 April 2025, the Court of Appeal of England and Wales delivered a judgment in Hipgnosis SFH 1 Ltd v Manilow ([2025] EWCA Civ 486; Sir Julian Flax C, with LJJ Phillips and Snowden agreeing) on the interpretation and effect of an asymmetric jurisdiction clause.

Facts

The parties had entered into a contract containing the following dispute resolution clause:

This Agreement and any related dispute or claim (contractual or non-contractual) shall be governed by, and construed in accordance with, English law. Each party irrevocably submits for all purposes of this Agreement (including any such dispute or claim) to the exclusive jurisdiction of the English courts. Any judgment obtained in the English courts may be enforced in any other jurisdiction. Notwithstanding the foregoing, any claims made by BM against Hipgnosis related to the Purchase Price may be brought by BM in the courts of Los Angeles, California or New York City, New York and solely in connection with such claims, Hipgnosis hereby agrees to submit to the jurisdiction of the courts located in Los Angeles, California and New York City, New York.

A dispute arose. One party (Hipgnosis) commenced proceedings in England, seeking declarations in respect of receipts due under the contract and the purchase price. 16 days later, the other party (BM) brought a claim related to the purchase price, along with some other claims, in California. The jurisdiction of English courts depended on the interpretation and effect of the jurisdiction clause.

Lower Court’s Judgment

The High Court ([2025] EWHC 444 (Ch); Smith J) stayed the purchase price claim, controversially holding that:

although the English Proceedings were properly commenced by C and that service out was regular, that was only because D had not, at this stage, made their choice as to jurisdiction, which choice was conferred on D (but not on C) by Phrase [4]. Exercising that choice – by commencing the Los Angeles Proceedings within a reasonable time of the commencement of English Proceedings by C and by making the Application – crystallised the floating jurisdiction between England on the one hand and Los Angeles/New York on the other in favour of Los Angeles. [18]

The claimant appealed.

Court of Appeal’s Judgment

The Court of Appeal addressed the issues of the meaning and effect of the jurisdiction clause and the exercise of jurisdictional discretion.

This was a complex clause. It was exclusive for Hipgnosis – it could only commence proceedings in England for any dispute or claim related to the contract. It was partly exclusive and partly unilaterally non-exclusive for the other party – BM had an option to bring claims related to the purchase price in Los Angeles or New York. This means that the English proceedings were properly commenced. On the other hand, the Los Angeles proceedings were also properly commenced to the extent to which they related to the purchase price; however, the bringing of other claims in Los Angeles breached the clause.

The court also had to consider whether the clause permitted parallel proceedings. Following Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] EWHC 1328 (Comm), [40], and Etihad Airways PJSC v Flöther [2020] EWCA Civ 1707, [4], the court held that this ‘is a possibility which is inherent in an asymmetric jurisdiction clause’ and noted that ‘there are only parallel proceedings because the respondent chose to exercise the option’ [56]. The High Court’s conclusion that the exercise of the option crystallised the floating jurisdiction in favour of Los Angeles courts was dismissed as ‘heretical and contrary to authority’, as ‘the jurisdiction of the English court is determined at the date of issue of proceedings’ [57].

The court did not decide whether Article 5(2) of the Hague Convention applied to asymmetric jurisdiction clauses [72]. However, if it did not apply, and if the court had discretion not to exercise jurisdiction, the Court of Appeal nevertheless refused to stay the purchase price claim on the basis that ‘the English court is the one court where all the issues between the parties can be determined in a single jurisdiction’ [71].

Discussion

The Court of Appeal’s judgment appears sound. The main lesson this case teaches us is that parties must take great care when incorporating an asymmetric jurisdiction clause into their agreement. They should clearly specify which claims are covered by the jurisdictional option and consider whether the option must be exercised within a particular timeframe and what should happen if proceedings are commenced pursuant to the clause by either party. Lack of clarity can, as Hipgnosis demonstrates, result in a breach of a jurisdiction clause and in parallel proceedings.

This post was contributed by Fabien Marchadier, who is a professor of private international law at the University of Poitiers.

On 28 May 2025, the Cour de cassation delivered its judgment in Real Madrid Club de Fútbol v. Société éditrice Le Monde following the preliminary ruling by the Court of Justice of the European Union (Case C-633/22, reported on this blog). By its judgment (covered by Geert Van Calster in his blog), the French Supreme Court quashed the appeal ruling which refused to enforce the Spanish judgments on several grounds. Drawing conclusions from the ruling of the CJEU, the Court of Cassation found, unsurprisingly, that in reviewing the Spanish decision, the Court of Appeal had exceeded its powers by making several prohibited substantive revisions.

Background

Following the publication of an allegedly defamatory article, Real Madrid Football Club and one of its medical team members had brought an action against the newspaper Le Monde and one of its journalists before the Spanish courts. In two final judgments, they were awarded substantial damages for non-pecuniary loss (EUR 300,000 in principal for the club and EUR 30,000 in principal for the member of its medical team).

With a view to enforcement in France, they sought and obtained two declarations of enforceability of the Spanish decisions from the directeur des services de greffe judiciaires of Paris first instance court following a summary examination, in accordance with the Brussels I Regulation No. 44/2000 then applicable.

The Court of Appeal overturned these declarations, considering that the Spanish decisions violated the freedom of the press protected under the right to freedom of expression (Article 11 of the Charter of Fundamental Rights of the European Union and Article 10 of the European Convention on Human Rights) and were therefore contrary to French public policy.

On appeal by the applicants, the Court of Cassation referred several questions to the CJEU for a preliminary ruling. On 4 October 2024, the Court delivered an ambiguous judgment (Advocate General Chaumont, in his opinion, sees it rather as “a decision striking a balance between the requirement of mutual trust in the justice system within the European Union and that of protecting freedom of expression”).

The CJEU does not rule out a refusal of recognition, at least in part, if the amount of damages is manifestly disproportionate to the damage to reputation, such that it is likely to have a deterrent effect on the exercise of press freedom in the requested State. The Court of Justice does not rule clearly on this point and leaves it to the national courts to decide. However, they do not enjoy complete freedom. The Court of Justice subjects them to significant methodological constraints. These constraints are based, for the most part, on the principle of prohibition of review of the merits in a context of mutual trust.

Judgment of the Court of Cassation

The ruling handed down by the Court of Cassation reflects these ambiguities and constraints. It first confirms the very principle of reviewing the proportionality of a financial penalty, whether compensatory or punitive. It then confirms that the parameters of proportionality include the extent of the offender’s resources. From this twofold perspective, the appeal judgment referred to the Court of Cassation is not open to criticism.

However, by disregarding the fault committed by the perpetrator, as assessed in terms of its nature and seriousness by the Spanish court, and by failing to establish, even by way of a reference value (such as the average remuneration of journalists in the sector concerned; on the contrary, the net loss and the liquid assets do not sufficiently establish the press publisher’s financial resources ), the extent of the debtors’ assets, the Court of Cassation rules that the Court of Appeal failed to apply the methodology for reviewing the proportionality of the amount of damages awarded by the Spanish courts. Furthermore, although this may seem obvious, where there are several convictions against different persons, the disproportionate nature of the sentence must be assessed in relation to each of them, taking into account their particular circumstances, in particular their financial situation, and not globally, taking all sentences together.

Finally, in carrying out this review, the Court of Cassation can only note the discrepancy between the judgment delivered by the Court of Appeal and the guidelines laid down by the Court of Justice in its preliminary ruling. By re-examining the assessment of the damage and the seriousness of the fault committed, the Court of Appeal violated the principle of prohibition lof review on the merits (revision au fond). It is bound not only by the findings of fact of the Spanish courts, but also by the conclusions drawn from them. It is irrelevant that the member of the medical team was not named in the article or in the denial published by the Spanish press. Nor are the difficulties in quantifying the non-pecuniary damage relevant. The Spanish court did not ignore these factors when it set the amount of damages. They form an integral part of the judgment. They do not allow for an assessment of their manifest disproportion.

Next Step

The Court of Cassation allows the appeal on five different grounds and refers the case back to a different panel of the Paris Court of Appeal. The judgment of the Court of Cassation gives methodological reminders which do not prejudge the outcome of the proportionality review. It will therefore be for the trial judge to distinguish clearly between the case of a legal person and that of a natural person and not to deviate from the “narrow path” (to use the expression of Advocate General Chaumont) laid down by the Court of Justice. It will also have to establish the resources of the debtors in order to assess in concrete terms whether the amount of damages is substantial for each of the debtors, to the extent that it threatens the economic foundations of Le Monde. If the Court of Appeal upholds its decision not to recognize the Spanish decisions, it will have to meet two challenges.

In order to remain within the limits of the review authorized by the Court of Justice, it would have to find that the Spanish decisions constitute not a mere violation of the right to freedom of expression, but a manifest violation, without revisiting the assessment of the damage or the seriousness of the fault.

In other words, the review of the international regularity of the foreign decision is not an opportunity to reopen the proceedings that took place abroad. It must focus on elements that have not already been examined by the court of the State of origin of the decision. However, it appears that in balancing the interests at stake (the protection of reputation on the one hand and the exercise of freedom of the press on the other), the Spanish court did not fully comply with the case law of the European Court of Human Rights. It set the amount of damages in consideration of the fault and the harm, but without concern for the weight of this sentence on the debtors and, for the newspaper, the practical consequences of such a debt for the continuation of its activity. Does this methodological failure in itself  amount to a clear violation of freedom of expression? If not, it will depend on an assessment of the resources of the journalist and Le Monde. If these resources are insufficient to the point of making the sentence clearly disproportionate (which remains to be demonstrated), the referring court will face a second challenge.

Traditionally, when a foreign decision is subject to a ground for non-recognition, it has no effect (or almost no effect, as there are effects independent of the international regularity of a decision) in the requested State. The alternative is binary.

In its preliminary ruling, the Court of Justice decided to break new ground. In order to minimize the impact on the objective of free movement of decisions, it opened up a third possibility. Despite the violation of public policy, despite the clear violation of a fundamental right, in this case freedom of expression, the decision is still intended to circulate. The award of damages, which gave rise to the violation of the fundamental right, should be reduced to the extent that it is manifestly disproportionate. The prohibition of review of the merits and the principle of mutual trust, which are so decisive in limiting the powers of review of the court of the requested State, are neutralized here. Their importance varies in the service of a single end: the free movement of judgments in Europe. From a theoretical point of view, the reasons put forward in support of this solution are reasonably convincing.

However, this solution poses a formidable practical problem that the Court of Cassation, which only reviews errors of law, has obviously not addressed. How can manifest disproportion be assessed in concrete terms? Is it sufficient to establish the point at which the infringement of freedom of expression is no longer justified? If the purpose of the review is to remove the manifest nature of the violation, without necessarily eliminating the violation itself, how can a distinction be made between what is debatable (damages in a substantial amount) and what is unacceptable (damages in a manifestly disproportionate amount)? In this regard, Advocate General Chaumont considers that cassation will give the referring court the opportunity “to decide the issue with greater nuance”.

Leaving the trial judge with broad discretion, with the Court of Cassation’s review limited to the existence of sufficient reasoning is a solution. This point remains to be clarified.

Regarding Private International Law, May 2025 will be a quiet month at the Court of Justice. Subject to updates, there is just one opinion scheduled, to be published on Thursday 22. In case C-279/24, Liechtensteinische Landesbank, AG R. Norkus has been asked to support the Court acting in a chamber of five judges (I. Jarukaitis, A. Arabadjiev, M. Condinanzi, R. Frendo and N. Jääskinen, the latter as reporting judge), in a  request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria).

The main dispute opposes AY, a consumer resident in Italy, to Liechtensteinische Landesbank, a bank headquartered in Austria. In 2013, AY had opened a securities deposit account and a current account with Liechtensteinische Landesbank. In accordance with the bank’s general terms and conditions, all legal relationships between the parties to the contract were governed by Austrian law. In 2016, AY attended an event in Italy at which a bank employee introduced the bank to the investors present. In 2017 and 2018, he bought on his own initiative unsecured exchange traded notes through the bank, giving purchase orders by remote communication; he also bought shares in the fund that had been presented at the Padua event. Having suffered a financial loss as a result of the purchases, AY filed with the Austrian courts an action for compensation for the damages suffered. The lower courts dismissed his claim. AY brought an appeal on a point of law before the Oberster Gerichtshof (Supreme Court).

In a nutshell, AY argues that, after 2016, the bank directed its activity towards Italy within the meaning of Article 6(1)(b) of Regulation No 593/2008. By way of consequence, the choice of law contained in the bank’s general terms and conditions is unfair, for the consumer’s attention was not drawn to the fact that, pursuant to Article 6(2) of the Regulation, he may rely on the protection of the mandatory provisions of the law in force in the country where he has his habitual residence.

The Austrian Oberster Gerichtshof asks the Court of Justice to decide on the following issues:

1. Must the legal consequences of orders for the acquisition of financial products placed by a consumer domiciled in State A (here Italy) on the basis of an ongoing business relationship with a bank domiciled in State B (here Austria) be assessed in accordance with the law resulting from Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation) if the conditions for the application of Article 6 of the Rome I Regulation were met when the individual orders were placed but not when the business relationship was entered into and the parties had at that time chosen the law of State B for the entire business relationship in accordance with Article 3 of the Rome I Regulation?
2. If question 1 is answered in the affirmative:

Is the exception in Article 6(4)(a) of the Rome I Regulation applicable where a bank opens accounts for a consumer domiciled in another Member State on the basis of a contract and subsequently acquires financial products for the consumer on the basis of the consumer’s orders that are attributed to the accounts, where the consumer may (also) place the orders by means of remote communication?

3. If question 1 is answered in the affirmative and question 2 is answered in the negative: Must a choice of law made before the conditions for the application of Article 6 of the Rome I Regulation were met be regarded as unfair within the meaning of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts […] after those conditions were met if the contract does not refer to the legal consequences of Article 6(2) of the Rome I Regulation?

Albeit not directly related to the interpretation of PIL acts, two further cases are worth being mentioned in the blog in view of their potential consequences for cross-border private relationships. The first is C-43/24, Shipov, where, among other, the Varhoven kasatsionen sad (Supreme Court, Bulgaria) is 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 1 and C 490/20 2 in relation to the application of Directive 2004/38/EC 3 and Article 21(1) TFEU9, 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?

A hearing will take place on Thursday 22.

The second case worth following is C-789/23, Tatrauskė. The Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court, Lithuania) has referred the following question to the Court of Justice:

Must Article 21(1) of the Treaty on the Functioning of the European Union 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 data?

AG M. Szpunar’s opinion will be delivered on Thursday 22.

This post was written by Lea Marion who is a Member of the Paris Bar.

The legal characterization of claims for abrupt termination of established commercial relationships — an action specific to French law (Article L. 442-1, II of the French Commercial Code) — continues to be a fertile ground for uncertainty and doctrinal debate.

Caught between its traditional classification as a tortious claim under French domestic law (Cass. com., 6 February  2007, No 04-13.178) and the temptation of a contractual reading under the aegis of the Court of Justice of the European Union (C-196/15, Granarolo), recent jurisprudence reflects a deeper tension: that of the delicate balance between national legal autonomy and the European objective of harmonization.

Background: A Fragile Consolidation of Dual Qualification

On 12 March 2025, the Paris Court of Appeal, faced with a question regarding the applicable law for an action based on Article L. 442-1, II of the French Commercial Code, reaffirmed that within the EU legal order, such actions fall within the contractual sphere.

In doing so, the Court aligned itself with the CJEU’s Granarolo ruling — interpreting Regulation No 44/2001 — and extended its reasoning to conflicts of laws, following the logic set out in Recital 7 of the Rome I and Rome II Regulations, which call for coherent interpretations alongside the Brussels I bis Regulation.

On the same day, however, the First Civil Chamber of the French Cour de cassation, faithful to its traditional understanding of Article L. 442-1, II, reaffirmed the tortious nature of the action in the context of international litigation outside the scope of EU Regulations.

From these two decisions, a seemingly stable jurisprudential framework appeared to emerge: a dual characterization — contractual under EU law, tortious under French domestic and international private law — reconciling the demands of both legal orders.

Renewed Debate: The Question of Characterization Referred to the CJEU

Where one might have believed the matter settled, the French Cour de cassation, by a decision of 2 April 2025, has reignited the debate by referring a preliminary question to the CJEU.

The dispute involved a French company and a Cypriot company bound by an air transport services agreement governed by the laws of Jersey concluded in 1995 – an agreement falling within the scope of the Rome Convention, as it predates the entry into force of the Rome I Regulation and which, since 1 August 2004, falls under the interpretative jurisdiction of the Court of Justice. The case law developed under the Convention nevertheless remains relevant for the application of Rome I, insofar as the provisions are identical or substantially similar. Following an allegedly abrupt termination without sufficient notice, the Cypriot service provider brought an action before French courts on the basis of Article L. 442-1, II of the French Commercial Code.

In support of its claim, the service provider argued, firstly, that Article L. 442-1, II applied as a mandatory overriding provision, governing any economic relationship involving at least one operator established in France or where performance took place in France; and secondly, that pursuant to Article 4 of the Rome II Regulation, the applicable law should be French law, as it bore the most significant connection to the dispute.

In its judgment, the Cour de cassation observed that the dispute raised a preliminary issue regarding the legal characterization of the action, and seized the opportunity to refer the following question to the CJEU:

Must Article 1(1) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations, and Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), be interpreted as meaning that a damages action based on the abrupt termination of established commercial relations, assessed under legislative provisions governing restrictive practices in competition, and therefore arising from a statutory obligation to refrain from certain conduct, falls within the scope of non-contractual obligations, independently of any contractual links that may exist between the parties?.

Hopes for a European Alignment on the Tortious Qualification

In its reference, the Cour de cassation subtly highlighted the extra-contractual nature of the action, signaling its preference for recognizing the tortious characterization of abrupt termination under EU law.

In Granarolo, the CJEU had justified the contractual classification, in the absence of a written contract, through a comparative law analysis:

in a significant number of Member States, long-standing commercial relationships established without a written contract may, in principle, be deemed to fall within an implied contractual relationship, the breach of which may give rise to contractual liability.

This approach, however, strained both French law and the CJEU’s own case law. French law, notably, treats the indemnity action — whether or not a contract exists — as based on a statutory provision aimed at ensuring the orderly conduct of economic life, independent of contractual obligations (see Advocate General’s opinion, para 19).

It also overlooked the Brogsitter case, where the CJEU held that it is for the referring court to determine

whether the claims brought seek to obtain compensation for damage the cause of which can be reasonably regarded as a breach of the contractual obligations binding the parties, requiring the interpretation of the contract (C-548/12, para 26).

However, the CJEU’s position evolved significantly in Wikingerhof (C-59/19), a case concerning an alleged violation of German competition law.

The Court there held that

where the applicant relies, in its application, on rules on non-contractual liability, namely the breach of an obligation imposed by law, and it is not necessary to examine the content of the contract between the parties to assess the legality of the defendant’s conduct, the action falls within non-contractual matters within the meaning of Article 7(2) of Regulation No 1215/2012.

It is this Wikingerhof judgment — and French scholarly commentary pointing out that the ruling made no reference to Granarolo, thus raising the prospect of its abandonment — that has led the French Cour de cassation to seek clarification from the CJEU.

The forthcoming ruling from the CJEU could mark a decisive turning point in the litigation of abrupt terminations of established commercial relationships.

In his opinion of 3 April 2025 in C-713/23, Wojewoda Mazowiecki, Advocate General (AG) Richard De la Tour expressed the view that the Articles 20 and 21(1) TFEU, read with Article 7 of the Charter of Fundamental Rights, allow a Member State to refuse the transcription of a same-sex marriage certificate lawfully issued in another Member State, as long as alternative means are available to ensure that the marriage is recognised by third parties. However, they do preclude a Member State from refusing to recognize such a marriage altogether — through any means or document proving the marital relationship and chosen surname — solely because its national law does not allow same-sex marriage.

Facts of the Case

Jakub Cupriak-Trojan, a Polish and German national, and Mateusz Trojan, a Polish national, married in Berlin, Germany, and later moved to Poland. Following their marriage, Mr. Cupriak-Trojan legally added his spouse’s surname under German law, and Polish authorities updated his records accordingly.

However, their request to have their German marriage certificate transcribed into the Polish civil registry was denied by the Polish authorities on the grounds that Polish law does not recognize same-sex marriages, deeming transcription contrary to Poland’s fundamental legal principles, including the legal requirement in Poland that marriage be between a man and a woman.

The couple challenged the refusal, with the ruling resulting therein stating that national law and public policy do not accommodate same-sex marriages. It was further held that the refusal did not infringe EU law or the European Convention on Human Rights, as the matter was unrelated to free movement rights.

The couple appealed, and a preliminary question was referred to the Court of Justice of the European Union. The question asked whether EU law, particularly Articles 20 and 21 TFEU and the Charter of Fundamental Rights, prevents a Member State from refusing to recognize and transcribe a same-sex marriage certificate, thereby restricting the couple’s ability to reside in Poland as a legally married couple with a shared surname on the grounds that the law of the host Member State does not provide for same-sex marriage. The case raises fundamental questions about the matters of personal status and the overarching principles of EU law, particularly concerning the freedom of movement and the right to private and family life.

Analysis of the Advocate General

AG De La Tour analyses that the refusal from Polish authorities has significant implications, as it directly affects the couple’s legal status, their ability to exercise rights as spouses and their access to various legal benefits linked to marriage within Poland. He notes that, while matters of personal status, including marriage, traditionally fall under the competence of Member States, they must exercise this power in compliance with EU law, particularly with regard to the freedom of movement and residence of EU citizens.

In support of this, AG De La Tour refers to the Court’s established case law (Coman (C-673/16), Pancharevo (C-490/20) and Mirin (C-4/23)), which confirms that civil status documents issued in one Member State must be recognized by other Member States for the purpose of exercising EU rights, even if Member States are not required to grant them full civil effects. This principle has been applied in cases concerning the recognition of identity details such as names and gender changes. The Court has held that refusal to recognize such elements can create serious administrative and personal inconveniences, thereby restricting the freedom of movement guaranteed under Article 21(1) TFEU. AG De La Tour extends this reasoning to same-sex marriages, asserting that failure to recognize such marriages similarly restricts the right to freedom of movement by creating legal uncertainties and barriers for same-sex couples who move between Member States.

In addition, AG De La Tour emphasizes the relevance of Article 7 of the Charter of Fundamental Rights of the European Union, which guarantees the right to private and family life. This provision aligns with Article 8 of the European Convention on Human Rights, which has been interpreted by the European Court of Human Rights as requiring States to provide legal recognition and protection for same-sex couples. Notably, the European Court of Human Rights has ruled in several cases that Poland has failed to comply with its obligations under Article 8 of the European Convention on Human Rights by not providing any legal framework for same-sex unions. While the European Court of Human Rights has clarified that States are not obliged to legalize same-sex marriage, they must nevertheless ensure adequate recognition and protection for same-sex couples. The European Court of Human Rights has also acknowledged that States retain a wide margin of appreciation in deciding whether to register same-sex marriages conducted abroad, as demonstrated in Orlandi and Others v. Italy and Formela and Others v. Poland.

Against this backdrop, AG De La Tour concludes that while EU law imposes an obligation on EU Member States to recognize same-sex marriages for the purposes of free movement, it does not necessarily mandate the registration of such marriages in national civil registers if domestic law does not provide for them. However, the particular administrative practice in Poland, which effectively requires transcription in the civil register for same-sex spouses to prove their marital status, renders such transcription necessary in this case. This means that, in practice, Poland’s refusal to transcribe the marriage creates a disproportionate obstacle to the free movement rights of the individuals concerned.

To address these complexities, AG De La Tour suggests distinguishing between two distinct obligations: first, the obligation to recognize a marriage for free movement purposes, which derives from EU law, and second, the obligation to register it in a national civil register, which remains within the Member State’s competence. This approach seeks to balance the division of competences between the EU and Member States while ensuring that fundamental rights protections for same-sex couples are upheld. Furthermore, AG De La Tour notes that alternative mechanisms, such as allowing same-sex spouses to adopt a joint surname or enabling them to rely on foreign marriage certificates, could provide a form of recognition that facilitates their rights without necessarily requiring full registration in Poland’s civil status registry.

AG De La Tour’s opinion emphasizes that the distinction made is consistent with the Court’s case law regarding civil status documents related to same-sex couples or their children. Such documents must produce effects in another Member State, even if that State does not recognize the legal situation in question.

A contrary interpretation would imply recognizing an unlimited right to freedom of movement and residence for EU citizens, extending to personal status, except in cases of abuse of rights. In particular, the issue would arise as to whether this solution applies when the refusal to register a foreign marriage is based on grounds other than the absence of a difference in sex between the spouses.

Regarding civil status, according to AG De La Tour, the Court would shift from an approach based on the Union citizen’s freedom of movement as part of their identity, to one that connects this freedom directly with the right to respect for family life. This right would become an autonomous principle within the framework of free movement, combined with the prohibition of discrimination based on sexual orientation.

AG De La Tour notes that, even in situations where the best interests of the child are paramount, the Court has not fully adopted this approach. Furthermore, the European Commission has published the proposal for a regulation requiring Member States to recognize parenthood established in another Member State for purposes beyond the exercise of EU rights, such as freedom of movement.

In conclusion, AG De La Tour proposes that Member States cannot be required under EU law to register a same-sex marriage from another Member State unless registration is the only means for an individual to prove their marital status. The obligation for civil registration related to freedom of movement should, therefore, be limited to cases where there is uncertainty as to the identity of the Union citizen and that uncertainty can be dispelled by that means alone.

Comment

AG De La Tour’s Opinion in Wojewoda Mazowiecki case reinforces the principle that while Member States retain competence over matters of personal status, they must exercise this competence in a manner that does not undermine the rights of EU citizens, particularly their freedom of movement and residence.

The opinion emphasizes that restrictions on the recognition of same-sex marriages should not impose disproportionate obstacles on individuals seeking to exercise their EU-based rights. The CJEU’s case law has consistently affirmed that barriers to free movement cannot be justified by national legal traditions alone if they result in obstacles in the enjoyment of these rights. Broadly, this reasoning also aligns with the commitment of EU law to ensuring non-discrimination, a principle which is embedded in both the Treaties and the Charter.

Non-discrimination is a fundamental right under EU law, protected notably by Article 21 of the Charter of Fundamental Rights and Article 19 TFEU. This right, if it is to be effective, requires Member States to revisit and, where necessary, adapt their laws and administrative practices that could otherwise undermine the exercise of Union rights. In this context, the refusal to recognize a same-sex marriage for purposes linked to the exercise of free movement rights creates a legal limbo for affected couples, placing them at a disadvantage compared to heterosexual spouses. Such legal uncertainty can manifest in various ways, from difficulties in proving one’s marital status to the denial of rights related to family reunification, social security and inheritance.

Basically, by drawing a distinction between recognition and registration, AG De La Tour attempts to strike a balance between national legal autonomy and the foundational principles of EU law. While Member States are not obliged to grant full civil effects to same-sex marriages concluded in other States, they cannot create administrative or legal barriers that make it impossible for individuals to prove their status when exercising their EU rights. This approach is pragmatic, as it acknowledges the diversity of legal traditions within the EU while ensuring that this diversity does not translate into discrimination or disproportionate burdens. This also highlights the functional yet respectful nature of EU law toward national identities. EU law is primarily concerned with the ultimate objective — in this case, ensuring the full and unrestricted exercise of EU rights. The means to achieve this goal, including procedural aspects, remain within the competence of the Member States, allowing them to implement Union objectives in ways that align with their legal traditions and national specificities.

However, a convincing analysis must account not only for the EU integrationist values (freedom of movement and non-discrimination), but also for the legitimate interests of Member States in regulating personal status according to national constitutional traditions. EU law itself, although strongly committed to integration, recognizes that Member States’ competences must be respected, provided that they are exercised without undermining the essence of EU rights. In this regard, it is important to note that in Poland, the restriction of marriage to opposite-sex couples is explicitly enshrined in the Constitution. Article 18 of the Polish Constitution defines marriage as a union between a man and a woman, placing it under the protection and care of the Republic of Poland. A similar constitutional entrenchment is found in Hungary, where the Fundamental Law in Section L, as amended in 2020, explicitly defines marriage as the union of a man and a woman and affirms that “the mother shall be a woman, the father shall be a man”. The Romanian Constitution, particularly Article 48, defines the family as being founded on a freely consented marriage and a 2018 referendum, which failed to meet the minimum turnout requirement, sought to specify that marriage is a union between a man and a woman. These constitutional definitions reflect deliberate national choices about the regulation of personal status, rooted in the respective countries’ constitutional identities.

The challenge, therefore, lies in balancing these competing instances through solutions. EU private international law provides several models for balancing and the coexistence of different values: for example, the principle of “partial recognition” (recognizing a status only for specific purposes) – Coman (C-673/16), paragraph 45, and Pancharevo (C-490/20), paragraph 57, or the use of certificates (such as the European Certificate of Succession under Regulation (EU) No 650/2012) that allow individuals to prove personal status without requiring full recognition within the “host” legal order. Therefore, the concept of “recognition without full effect” permits a limited acknowledgment of foreign acts or documents, sufficient to enable the exercise of fundamental freedoms, without compelling Member States to modify their internal legal regimes.

It is therefore essential to question whether such techniques provide solutions which can be considered effective. Without delving too deeply into the details that a thorough analysis would require, the main issue lies in the gap between EU legal obligations and the “willingness” or “ability” of Member States to comply. While the EU ensures and promotes fundamental freedoms, Member States may retain reservations, particularly when national legal principles, such as those concerning marriage, conflict with broader EU mandates. Thus, while these solutions offer methods to delicate balance national and EU law, they do not always ensure comprehensive or consistent rights across Member States. At its core, even the Coman case, despite the ruling of the Court of Justice of the European Union, cannot be considered resolved, and the saga continues before the European Court of Human Rights (Application no. 2663/21).

In essence, AG De La Tour’s opinion highlights the limitations of the current legal framework. This raises the question of whether the reliance on case law to address these issues exposes a broader need for a legislative solution at the EU level. One promising initiative is the proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood, which also introduces the European Certificate of Parenthood. However, the proposal focuses on parenthood. If feasible and conceivable, a similar initiative addressing marriage could prevent such situations by establishing clear rules and obligations on the mutual recognition of legal relationships formed in another Member State. And it could represent the (perhaps not too distant?) next step following both the LGBTIQ Equality Strategy 2020-2025 and its update by the European Commission in the 2025 work programme for the 2024-2029 period.

On 20 March 2025, the Danish Supreme Court ruled (in case BS-34884/2024-HJR) that a Chinese arbitral award could not be enforced in Denmark due to a lack of proper service.

Background

In 2020, a Chinese arbitral tribunal held that the investments that an investor had made for a company should be repaid. Since the defendant was domiciled in Denmark, the investor sought to enforce the Chinese arbitral award there. Both China and Denmark are contracting parties to the United Nation’s Convention on the Recognitoion and Enforcement of Foreign Arbitral Award of 1958 (the New York Convention), which generally requires contracting States to recognize foreign arbitral awards. However, during the enforcement proceedings, the Danish defendant argued that he had not been served and was unaware of the arbitral proceedings in China.

The Legal Issue

The issue for the Danish Supreme Court was whether the Chinese arbitral award could be enforced or if the exemption for lack of service in Article V(b) of the New York Convention could apply. Section 39 of the Danish Arbitration Act that implements said grounds for refusal which mirrors Article 36(1)(a)(ii) of UNCITRAL’s model law. Under this provision, lack of “proper notice” of the arbitral proceedings is a ground for refusal. That is such a fundamental principle that cannot be derogated from. Citing the Swedish Supreme Court’s judgment NJA 2010 p. 219, the Danish Supreme Court held that it is the actual service that what matters is not the form of service, but whether actual service has occurred.

The Supreme Court’s Findings

The Court concluded that the respondent had not been properly served. Attempts to serve the respondent about the arbitral procedure had been made to outdated postal addresses in China, despite the tribunal being aware that the respondent resided in Denmark. Furthermore, no attempt was made to inform the respondent via email or other reasonable means. Given this lack of proper notice, the Court held that enforcing the award would violate fundamental principles of due process. Accordingly, the Chinese arbitral award was declared unenforceable in Denmark.

Comment

This decision underscores the importance of ensuring that arbitral proceedings comply with basic procedural fairness, especially when enforcing awards across borders.

On 27 March 2025 the Court of Justice handed down the judgment in the Ławida case (C-57/24) concerning the scope of jurisdiction to receive declaration on waiver of succession under Article 13 of the Succession Regulation. The preliminary question originates from Poland.

Facts of the Case

BA is a minor habitually resident in Poland. The deceased ZJ (a BA’s relative) was habitually resident in Germany at the time of death. Therefore, German courts have jurisdiction. BR is BA’s legal representative. Acting through BR, BA mistakenly failed to make a declaration on waiver of succession ‘within the required time limit’.

BR applied to a Polish court, in accordance with procedure described in Polish law, for an approval for BA to be freed from the legal consequences of such failure. Such an approval, in accordance with Polish law, would allow for waiving succession. The Polish court had doubts as to the extent of its jurisdiction distinguishing between ‘receiving a declaration’ and approving the application, which would free the heir from the legal consequences of the failure to make such a declaration within the required time limit.

Provisions of the Succession Regulation on waiver of succession

Article 13 of the Succession Regulation provides for ‘an alternative forum’ (as nicely put by the Court in para. 37) for accepting certain declarations (for instance, a declaration concerning the waiver of the succession). The purpose of this additional, alternative jurisdiction is, as Recital 32 explains, ‘to simplify the lives of heirs’, who might live in a Member State other than the one with jurisdiction over the particular succession case. This additional jurisdiction is vested with the courts of the Member State of the habitual residence of a person, which wants to make such declaration.

For this purpose, Article 13 requires that the law applicable to the succession case (lex successionis) provides for the possibility of making such a declaration before a court and that under the law of the Member State where such a declaration is to be received such declarations are also possible to be made before a court. Recital 32 adds that such declarations can be made before other authorities which are competent to receive these declarations under national law in that Member State (for instance, notaries).

The ‘conditions and effects’ of the waiver of succession are governed by the lex successionis pursuant to Article 23(2)(e) of the Succession Regulation. Article 28 Succession Regulation adds only, in accordance with favor validitatis approach, that a declaration is valid as to ‘form’ where it meets the requirements of either the law applicable to the succession (lex successionis) or the law of the Member State in which a person making the declaration has habitual residence.

As noted by Recital 32 persons making this declarations in their Member States should themselves inform the (generally) competent court or authority of the existence of such declarations within any time limit set by the law applicable to the succession. The practicalities of presenting such declarations in a Member State having (the general) jurisdiction over a given succession case were already subject to the case law of the Court of Justice (in TN, NN case, C-617/20 commented on the blog here and MYa case, C-651/21). This case however concerns a different aspect, at first sight, the extent of the jurisdiction of the court of a Member State of the habitual residence of a person making the declaration, but in fact – in my view – the case concerns the law applicable to the waiver.

The judgment of the Court of Justice

The Court of Justice stated in the judgment that ‘the courts of the Member State in which a person habitually resides who applies to be freed from the legal consequences of failing to make a declaration of waiver of a succession, within the required period, do not have jurisdiction to approve such an application’. In practical terms it means that, once the time limit for making the declaration is missed and an additional action must be taken, BA cannot waive succession in front of a Polish court.

Comments

The Court of Justice, as suggested by the referring court, based its reasoning on the literal wording of Article 13 of the Succession Regulation noting that ‘the courts of the Member State of the habitual residence of the heir are to have jurisdiction only to ‘receive’ those declarations’ (para. 31).

Later, the Court of Justice explained that:

Article 28 of Regulation No 650/2012 is conceived in such a way as to recognise the validity of the declarations referred to in that article, in particular where the conditions laid down by the law of the State of the habitual residence of the heir making the declaration – when the law of that State is applicable – are satisfied … (para. 36).

This part of the judgement seems problematic, especially when it refers to the law of the Member State of the habitual residence of the heir making a declaration as ‘applicable’. Here, additionally, it might be noticed that the Court of Justice, just like the referring court, on several occasions speaks about ‘the required time limit’ (for example, at para. 32). It seems that the Court has in mind the time limit provided for in Polish law for making a declaration on waiver of succession. In this context, the more general questions arise as to which law applies to the waiver of succession and to which – if any – matters the law of the habitual residence of the heir making the declaration applies.

Pursuant to Article 23(2)(e) of the Succession Regulation, the law applicable to succession (lex successionis) governs:

the transfer to the heirs … of the assets, rights and obligations forming part of the estate, including the conditions and effects of the …  waiver of the succession ….

Hence, the conditions of waiver and its effects are governed by lex successionis. The only exception to the applicability of lex successionis in that respect is the ‘form’ of such declaration. Pursuant to Article 28 of the Succession Regulation the declaration would also be valid as to its form if it would comply with the law of the habitual residence of the person making it. This provision clearly complements Article 13. If a person is making a declaration in the Member State of his or her habitual residence this declaration will be made in the form provided for in the law of that Member State.

Given the above, it seems that in a case as the one at hand, the court of a Member State of habitual residence of the person making the declaration ‘receives’ the declaration, but the law applicable to the admissibility of such declaration, any requirements to be met by the heir, including time limits and any institutions designed to remedy the missing of the prescribed time limit, as well as effects of such declaration are governed by lex successionis. Only the ‘form’ of the declaration might be conform with the law of the forum. Hence, in this particular case the institution provided for in Polish law designed for the heir who missed the time limit for making a declaration is not applicable. It is the German law which governs the institution designed for the heir who missed the time limit for making such declaration.

One might wonder whether the outcome of the case be different if German law was applied by the Polish court to the declaration on waiver and any institution designed to remedy the missing of the prescribed time limit …  For sure, the above case proves that the application of Succession Regulation in a way that it indeed can ‘simplify the lives of heirs’ does require understanding of the boundaries between different applicable laws, as well as understanding and application of foreign succession laws when needed.

The author of this post is Antonio Leandro, Professor of Public and Private International Law at the University of Bari (Italy).

On 27 March 2025, the Court of Justice delivered its judgment in the Auto1 European Cars case (C-186/24 Matthäus Metzler, acting as insolvency practitioner in insolvency proceedings, v Auto1 European Cars BV), which deals with Article 31 of the European Insolvency Regulation (Recast) (EIR).

Legal Background

Article 31 of the EIR addresses the case of third parties that fulfil an obligation in favour of the insolvent debtor in a Member State after the opening of the insolvency proceedings in another Member State, when they should have done so for the benefit of the insolvency practitioner (on the topic, see Hrycaj, Article 31, in Cuniberti, Leandro (eds), The European Insolvency Regulation and Implementing Legislations – A Commentary, Edward Elgar, 2024). The payment yields the debt-discharging effect if the third parties are unaware of the opening of the insolvency proceedings. The unawareness is presumptively tied to fulfilling the obligation before the publications outlined in Article 28.

Facts

The facts underlying Auto1 European Cars have already been described on this blog by Marta Requejo Isidro and are quite simple. In the framework of insolvency proceedings opened in Austria in May 2022, a dispute arose between the insolvency practitioner and Auto 1 – a company based in the Netherlands with a branch in Austria – about the payment that the latter made in June 2022 to the insolvent debtor under a sale contract signed in Austria. The deed of sale had been concluded in Austria after the opening of the insolvency proceedings. The good (a car) was handed over in Austria as well. Auto1 paid the price from a German bank account.

The Austrian insolvency practitioner sued Auto1 for the payment of the car’s price, claiming that the car had been sold after the opening of the insolvency proceeding, that is, when the Austrian lex concursus qualifies any acts concluded by the insolvent debtor as unenforceable against the insolvency estate. Auto 1 contested this claim, arguing that the car was outside the insolvency estate. Since Auto1 made the payment from a German bank account, it further contended any connections of its obligation with the State of the proceeding. Moreover, it asserted not to be aware of the opening. Accordingly, Auto 1 invoked Article 31 of the EIR to be discharged from its obligation or other compensation corresponding to the selling price of the car.

The Preliminary Questions

In order to rule on the insolvency practitioner’s contentions against the Auto1’s allegations, the Austrian Supreme Court deemed it necessary to ask the CJEU a) whether Article 31 includes ‘obligations arising from a legal transaction which the debtor did not conclude until after the opening of the insolvency proceedings and the transfer of powers to the insolvency practitioner’, and, if so, 2) whether Article 31 applies if the payor, the insolvent debtor, and obligation to be honoured have only connections with the Member State of the insolvency proceedings, while the payment is made through a bank account located in another Member State.

The Court’s Ruling

The CJEU focused on the first question and stated that Article 31 also applies to legal acts that the insolvent debtor has concluded after the opening of the insolvency proceedings, provided that the acts are enforceable against the lodged creditors.

The Court held that Article 7 and, hence, the law of the State in which the insolvency proceedings have been opened (lex concursus) apply to assess such requirement. Accordingly, should the lex concursus permit a post-opening act to be enforced against the lodged creditors, Article 31 covers the obligation arising out of such an act and protects the honouring party.

The Courts added that, if Article 31 were meant to include unenforceable acts, the insolvency practitioner would be prevented either from recovering assets that the debtor has unduly distracted from the insolvency estate after the opening – in blatant contrast with EIR’s aim to impede cross-border asset removals to the detriment of the lodged creditors – or from suing third parties for unjust enrichment.

Comment

In Grontimmo, the CJEU had clarified that Article 31 refers to third parties rather than creditors. In Auto1 European Cars, the Court adds, on the one hand, that the provision applies to acts that the insolvent debtor concludes after the opening of the insolvency proceeding, but, on the other hand, that creditors regain protection because Article 31 works as long as such acts are enforceable against them under the lex concursus.

The Court relies on the lex concursus to outline the exact scope of Article 31. In its words, ‘that provision cannot be understood independently of Article 7 …, which determines the law applicable to insolvency proceedings and their effects’ (Auto1 European Cars, para 22). The lex concursus does not govern the debt-discharge effect, which is uniformly established by Article 31. Instead, it applies to determine specific prerequisites of Article 31, regardless of whether the obligation originates from acts that the debtor has concluded before or after the opening of the insolvency proceedings.

More in detail, the lex concursus applies, under Article 7(2)(b), to determines ‘the assets which form part of the insolvency estate and the treatment of assets acquired by or devolving on the debtor after the opening of the insolvency proceeding’, and, under Article 7(2)(m), to govern ‘the voidness, voidability or unenforceability of legal acts detrimental to the general body of creditors’.

Therefore, Article 31 encompasses any act entailing the removal of assets, as long as the payor is unaware of the opening when fulfilling its obligation and the lex concursus permits the legal act to be enforced against the lodged creditors.

As the issue of enforceability primarily concerns acts detrimental to creditors, the interaction between Articles 7, 16, and 31 warrants a final remark, albeit it was not to the Court’s attention.

It is well known that, under specific conditions, Article 16 renders detrimental acts immune from the lex concursus (see Wautelet, in the commentary edited by Cuniberti and Leandro, mentioned above). It is also well known that Article 16 applies, in principle, to legal acts concluded before the opening of the proceedings (Lutz, paras 35-36). Accordingly, for the purposes of Article 31, the lex concursus would apply without exceptions to determine the act’s enforceability only in relation to post-opening acts.

On 27 March 2025, the Court of Justice will hand down the judgment in case C-186/24, Auto1 European Cars.

The request for a preliminary ruling arises in relation to insolvency proceedings opened by the Landesgericht Linz (Regional Court of Linz) on May 2022. The main dispute opposes the insolvency practitioner to Auto1, a company headquartered in the Netherlands with a branch in Austria. it concerns the payment, which should (allegedly) have been made to the insolvency estate, of an amount corresponding to the value of a vehicle sold by the insolvent debtor to Auto1.

On 2 June 2022, the debtor sold a car to Auto1 for EUR 48,870. After the car was handed over in Austria, Auto1 paid the agreed purchase price into a German bank account provided by the debtor.

The insolvency practitioner filed a claim against Auto1 seeking payment of EUR 48,870, arguing that the car had been sold after the opening of the insolvency proceedings.

Auto1 contested this claim, arguing that the vehicle had not been in the debtor’s possession at the time when the insolvency proceedings were opened, and had therefore not been part of the insolvency estate. It contended that it maintained only a branch in Austria, but was established in the Netherlands, and that it – and not the Austrian branch – had made the credit transfer in Germany from a German bank. By way of consequence, the only domestic connection of the contract of sale at issue was that it had been signed in Austria and the vehicle had been handed over there. It further argued that the claim asserted by the appellant did not exist, because the foreign connection entailed the applicability of Article 31 of Regulation 2015/848. It claimed that it could only be held liable if it had known about the opening of insolvency proceedings, which had not been the case.

[NoA: according to said Article 31, ‘Where an obligation has been honoured in a Member State for the benefit of a debtor who is subject to insolvency proceedings opened in another Member State, when it should have been honoured for the benefit of the insolvency practitioner in those proceedings, the person honouring the obligation shall be deemed to have discharged it if he was unaware of the opening of the proceedings’]

Seized on appeal (Rekurs) by the insolvency practitioner, the Austrian Supreme Court has referred the following questions to the CJEU:

1. Is Article 31(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (‘the 2015 Insolvency Regulation’) to be interpreted as meaning that obligations honoured for the benefit of the debtor which should have been honoured for the benefit of the practitioner in the insolvency proceedings also include, within the meaning of that provision, such obligations arising from a legal transaction which the debtor did not conclude until after the opening of insolvency proceedings and the transfer of powers to the insolvency practitioner?