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Societa Italiana Lastre (Judicial cooperation in civil and commercial matters - Agreement conferring jurisdiction - Judgment) [2025] EUECJ C-537/23 (27 February 2025)
URL: http://www.bailii.org/eu/cases/EUECJ/2025/C53723.html Cite as:
EU:C:2025:120,
[2025] EUECJ C-537/23,
ECLI:EU:C:2025:120
( Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EU) No 1215/2012 – Article 25(1) – Agreement conferring jurisdiction – Assessment of the validity of the agreement – Imprecise and asymmetric nature – Applicable law – Concept of ‘null and void as to its substantive validity’ )
In Case C‑537/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), made by decision of 13 April 2023, received at the Court on 22 August 2023, in the proceedings
Società Italiana Lastre SpA (SIL)
v
Agora SARL,
THE COURT (First Chamber),
composed of T. von Danwitz, Vice-President of the Court, acting as President of the First Chamber, A. Kumin (Rapporteur) and A. Arabadjiev, Judges,
Advocate General: A.M. Collins,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Società Italiana Lastre SpA (SIL), by F. Boucard, avocat,
– the French Government, by R. Bénard and B. Dourthe, acting as Agents,
– the Czech Government, by A. Edelmannová, M. Smolek and J. Vláčil, acting as Agents,
– the European Commission, by S. Noë and W. Wils, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 25(1) 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 (OJ 2012 L 351, p. 1; ‘the Brussels Ia Regulation’).
2 The request has been made in proceedings between Società Italiana Lastre SpA (SIL) (‘SIL’), a company incorporated under Italian law, and Agora SARL, a company incorporated under French law, concerning the jurisdiction of the French courts to hear an action on a guarantee brought by Agora in respect of SIL in the context of an action for damages brought against those two companies.
Legal context
International law
The Hague Convention of 30 June 2005 on Choice of Court Agreements
3 Article 5(1) of the Hague Convention of 30 June 2005 on Choice of Court Agreements, signed on 1 April 2009, the conclusion of which was approved, on behalf of the European Union, by Council Decision 2014/887/EU of 4 December 2014 (OJ 2014 L 353, p. 5), provides:
‘The court or courts of a Contracting State designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State.’
Lugano II Convention
4 Article 1 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007 (‘the Lugano II Convention’), the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008 (OJ 2009 L 147, p. 1) provides:
‘1. This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.
…
3. In this Convention, the term “State bound by this Convention” shall mean any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community.’
5 Title II of that convention, entitled ‘Jurisdiction’, includes, inter alia, Sections 1 and 2 thereof which cover the general provisions on jurisdiction and the rules on special jurisdiction, respectively.
‘If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing, or
(b) in a form which accords with practices which the parties have established between themselves, or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’
European Union law
The Brussels Convention
7 Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 399, p. 32), as amended by the successive conventions on the accession of new Member States to that convention, (‘the Brussels Convention’), provided:
‘If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing,
or
(b) in a form which accords with practices which the parties have established between themselves;
or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
…
If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.
…’
The Brussels I Regulation
8 Article 23(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘the Brussels I Regulation’) provided:
‘If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’
The Brussels Ia Regulation
9 Recitals 4, 6, 15, 16 and 18 to 20 of the Brussels Ia Regulation read as follows:
‘(4) … Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.
…
(6) In order to attain the objective of free circulation of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding and directly applicable.
…
(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.
(16) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. …
…
(18) In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.
(19) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.
(20) Where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement, including the conflict-of-laws rules of that Member State.’
‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).
2. This Regulation shall not apply to:
(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;
(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;
(c) social security;
(d) arbitration;
(e) maintenance obligations arising from a family relationship, parentage, marriage or affinity;
(f) wills and succession, including maintenance obligations arising by reason of death.’
11 Chapter II of the regulation, entitled ‘Jurisdiction’, includes Sections 1 to 5 and 7 thereof, entitled, respectively, ‘General provisions’, ‘Special jurisdiction’, ‘Jurisdiction in matters relating to insurance’, ‘Jurisdiction over consumer contracts’, ‘Jurisdiction over individual contracts of employment’, and ‘Prorogation of jurisdiction’.
12 Article 15 of the same regulation, which is in Section 3 of Chapter II thereof, provides:
‘The provisions of this Section may be departed from only by an agreement:
…
(2) which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section;
…’
13 Article 19 of the Brussels Ia Regulation, which is in Section 4 of Chapter II thereof, provides:
‘The provisions of this Section may be departed from only by an agreement:
…
(2) which allows the consumer to bring proceedings in courts other than those indicated in this Section; …
…’
14 Article 23 of the same regulation, which is in Section 5 of Chapter II thereof, provides:
‘The provisions of this Section may be departed from only by an agreement:
…
(2) which allows the employee to bring proceedings in courts other than those indicated in this Section.’
15 Article 25 of that regulation, which is in Section 7 of Chapter II thereof, provides:
‘1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing;
(b) in a form which accords with practices which the parties have established between themselves, or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
…
4. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
16 For a project commissioned by two natural persons, as the project owners, Agora concluded a contract for the supply of panelling with SIL.
17 That contract for supply included an agreement conferring jurisdiction (‘the agreement conferring jurisdiction at issue’), which stipulated that ‘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’.
18 After finding defects in the execution of the project in question, in November 2019 and January 2020 the owners of the project sued Agora and SIL for liability and compensation before the tribunal de grande instance de Rennes (Regional Court, Rennes, France).
19 Agora brought an action on a guarantee against SIL. On the basis of the agreement conferring jurisdiction at issue, SIL opposed that action on a guarantee on grounds of a lack of international jurisdiction.
20 By an order of 11 February 2021, the tribunale de grande instance de Rennes (Regional Court, Rennes) rejected that plea of the lack of jurisdiction. SIL brought an appeal against that decision.
21 By judgment of 4 November 2021, the cour d’appel de Rennes (Court of Appeal, Rennes, France), without examining the validity of the agreement conferring jurisdiction at issue with regard to Italian law, confirmed that decision on the ground that the agreement conferring jurisdiction at issue was unlawful, in that it gave SIL a wider choice of courts to bring proceedings before than it gave Agora, without stating the objective factors on the basis of which the parties had agreed to determine the relevant court which could be seised, with the result that it conferred on SIL a discretion which was contrary to the objective of foreseeability which jurisdiction clauses must meet.
22 SIL brought an appeal on a point of law before the Cour de cassation (Court of Cassation, France), the referring court. SIL submits that the cour d’appel de Rennes (Court of Appeal, Rennes) infringed Article 25(1) of the Brussels Ia Regulation, since the validity of an agreement conferring jurisdiction should be assessed in the light of the law of the Member State whose courts are designated pursuant to that agreement and, therefore, in the present case, in the light of Italian law rather than French law.
23 In that regard, the referring court is uncertain as to the precise meaning of the first sentence of Article 25(1) of the Brussels Ia Regulation, in that that provision provides, in essence, that an agreement conferring jurisdiction must be binding, in principle, unless it is ‘null and void as to its substantive validity under the law of [the Member State whose courts are designated by that agreement]’.
24 In the present case, the question first of all arises as to whether the validity of an agreement conferring jurisdiction, disputed due to its alleged imprecision or asymmetry, must be examined in the light of autonomous criteria derived from Article 25(1) of the Brussels Ia Regulation as well as the objectives of foreseeability and legal certainty pursued by that regulation or whether that examination must be carried out in the light of criteria relating to causes of that agreement being ‘null and void as to its substantive validity’, with the consequence that validity should, in accordance with the first sentence of Article 25(1), be assessed pursuant to the law of the Member State of the court designated by that agreement. In that context, the referring court wishes to know, inter alia, whether the concept of ‘null and void as to its substantive validity’ must be interpreted strictly, to the effect that the causes of nullity would be limited to fraud, error, deceit, violence and incapacity.
25 Next, if the validity of an agreement conferring jurisdiction, disputed due to its alleged imprecision or asymmetry, should be examined in the light of autonomous criteria derived from Article 25(1) of the Brussels Ia Regulation and the objectives of foreseeability and legal certainty pursued by that regulation, the referring court wishes to know whether that provision must be interpreted as meaning that an agreement conferring jurisdiction which requires one of the parties to bring proceedings before the sole court that it designates, whereas it permits the other party to bring proceedings, in addition to that court, before any other competent court, is valid.
26 Finally, if the validity of an agreement conferring jurisdiction, disputed due to its alleged asymmetry, must be examined in the light of criteria relating to the causes of ‘substantive’ nullity of that agreement, within the meaning of that provision, the referring court asks which national law applies for the assessment of that validity if that agreement permits one of the parties to bring proceedings before the courts of several States and that party has not yet exercised its choice at the time when the court is seised.
27 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Where there is an asymmetric jurisdiction clause which gives only one of the parties the ability to select a court which is competent under the rules of ordinary law but which differs from the court named in that clause and where the other party maintains that the clause is unlawful because it is too imprecise and/or because it is one-sided, should that matter be determined in accordance with autonomous rules derived from Article 25(1) of the Brussels Ia Regulation and the objective of foreseeability and legal certainty pursued by that regulation, or should it be determined by applying the law of the Member State designated by the clause? To put it another way, does it pertain to the substantive validity of the clause, within the meaning of that provision? Or should the substantive validity of the clause be interpreted strictly and regarded as relating purely to the material grounds for invalidity, which are principally fraud, error, deceit, violence and incapacity?
(2) If the question of whether the clause is imprecise or one-sided is to be determined in the light of autonomous rules, must Article 25(1) of the Brussels Ia Regulation be interpreted as meaning that a clause should or should not be applied if it allows one party to bring proceedings before only one court but allows the other party to bring proceedings either before that same court or before any other court which has competence under ordinary law?
(3) If the asymmetry of a clause amounts to a substantive condition, how is Article 25(1) of the Brussels Ia Regulation to be interpreted, in particular the requirement to refer to the law of the State of the designated court in a situation where multiple courts are designated by the clause, or where the clause designates one court but leaves it open to one of the parties to choose a different court but where this choice has not yet been exercised on the date when a court is seised of the matter:
– is the applicable national law that of the sole court to be expressly designated, even if proceedings could equally be brought before other courts?
– if multiple courts have been designated, is it possible to refer to the law of the court before which proceedings have actually been brought?
– lastly, in view of recital 20 of the Brussels Ia Regulation, should reference to the law of the Member State designated be understood to mean the material rules of the State or its conflict-of-law rules?’
Consideration of the questions referred
The first question
28 By its first question, the referring court asks, in essence, whether Article 25(1) of the Brussels Ia Regulation 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 in the light of criteria relating to matters which cause that agreement to be ‘null and void as to its substantive validity’ as defined by the law of the Member States in accordance with that provision, or whether the examination of those complaints must be made in the light of autonomous criteria which are derived from that article.
29 In accordance with the first sentence of Article 25(1) of the Brussels Ia Regulation, ‘if the parties … have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State’.
30 The Brussels Ia Regulation does not define the concept of ‘null and void as to its substantive validity’, nor does it refer to the laws of the Member States for the definition of that concept. In accordance with the settled case-law of the Court on that point, it follows from the requirement for uniform application of EU law and from the principle of equality, that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must, as a general rule, be given an autonomous and uniform interpretation throughout the European Union, which must be established by reference to the usual meaning of those terms in everyday language, while also taking into account the context in which they are used and the objectives pursued by the legislation of which they form part (see, to that effect, judgments of 10 June 2021, Commissioners for Her Majesty’s Revenue and Customs (Innocent agent), C‑279/19, EU:C:2021:473, paragraph 23, and of 4 October 2024, AFAÏA, C‑228/23, EU:C:2024:829, paragraph 39 and the case-law cited).
31 In the first place, according to the usual meaning in everyday language, the term ‘substantive’ is used, in judgments and in procedural documents, to indicate that after having examined issues of jurisdiction, formal requirements and admissibility, the court addresses the very issues which relate to the subject matter of the proceedings, namely questions of fact or law which the court must decide at the request of parties.
32 However, it must be observed that, since the first sentence of Article 25(1) of the Brussels Ia Regulation provides that the courts that the parties have agreed are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship shall have jurisdiction ‘unless’ the agreement conferring jurisdiction is ‘null and void as to its substantive validity’ under the law of the Member State whose courts are designated, that provision is merely a conflict-of-laws rule. Accordingly, that provision indicates which national law applies as regards whether, notwithstanding the fact that all of the conditions of validity laid down in that article are satisfied, such an agreement is null and void on other grounds under that national law.
33 In the second place, as regards the context of the first sentence of Article 25(1) of the Brussels Ia Regulation, it must be observed that recital 20 thereof has wording analogous to that provision, since it states that ‘where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement’.
34 Furthermore, it should be observed that, according to settled case-law, the provisions of Article 25 of the Brussels Ia Regulation, due to the fact that they derogate from the rule laid down in Article 4 thereof, pursuant to which jurisdiction is to be determined by the general principle of that the defendant’s courts have jurisdiction, and from the rule that special jurisdictions are determined by Articles 7 to 9 thereof, must be strictly interpreted with respect to the conditions that they lay down (see, to that effect, judgment of 8 March 2018, Saey Home & Garden, C‑64/17, EU:C:2018:173, paragraph 24).
35 It must be observed that, in addition to the reference to the concept of ‘null and void as to its substantive validity’, Article 25(1) of the Brussels Ia Regulation lays down conditions for validity that pertain to agreements conferring jurisdiction themselves, both as regards their substance, namely that ‘the parties … have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship’, and as regards their form.
36 Consequently, it must be held that that concept covers the general causes of nullity of a contract, namely, in particular, those which vitiate consent, such as error, deceit, violence or fraud, and incapacity to contract, causes which, unlike the conditions of validity pertaining to the agreement conferring jurisdiction themselves, are not governed by the Brussels Ia Regulation but by the law of the Member State whose courts are designated.
37 In the third place, it is consistent with the objectives pursued by the Brussels Ia Regulation to interpret the concept of ‘null and void as to its substantive validity’ regarding an agreement conferring jurisdiction as referring solely to its nullity in respect of general causes of nullity of a contract under national law of the court designated by that agreement.
38 As is apparent, inter alia, from recitals 4, 6, 15 and 16 of the Brussels Ia Regulation, that regulation seeks to unify the rules of conflict of jurisdiction in civil and commercial matters in an EU legal instrument which is binding and directly applicable. It is also apparent that the EU legislature wished to adopt jurisdiction rules that are highly predictable and transparent in order to ensure legal certainty and facilitate the sound administration of justice.
39 The Court has repeatedly held that, in order to attain those objectives, in particular that of legal certainty, it is necessary to strengthen the legal protection of persons established in the European Union, by enabling both the applicant to identify easily the court before which he or she may bring proceedings and the defendant reasonably to foresee the court before which he or she may be sued. In that context, the objective of legal certainty requires that the national court seised may easily decide on its own jurisdiction, without being obliged to examine the merits of the case (judgment of 29 July 2024, FTI Touristik (International element), C‑774/22, EU:C:2024:646, paragraph 33 and the case-law cited).
40 In the fourth place, the interpretation given in paragraphs 32 and 36 of the present judgment is appropriate given the origins of Article 25(1) of the Brussels Ia Regulation. In the explanatory memorandum for the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM(2010) 748 final), at the origin of the Brussels Ia Regulation, the European Commission emphasised, in page 9 of that memorandum, that the amendment of Article 23 of the Brussels I Regulation, which became Article 25 of the Brussels Ia Regulation, was intended to introduce ‘a harmonised conflict of law rule on the substantive validity of choice of court agreements, thus ensuring a similar outcome on this matter whatever the court seised … [reflecting] the solutions established in [the] Hague Convention [of 30 June 2005] on the Choice of Court Agreements’.
41 In the present case the referring court’s questions relate to whether the alleged imprecision or asymmetry of the agreement conferring jurisdiction at issue is capable of being a ground for that agreement being ‘null and void as to its substantive validity’, within the meaning of the first sentence of Article 25(1) of the Brussels Ia Regulation, which must be examined having regard to the national law of the courts designated by that agreement, or whether that assessment must be made having regard to autonomous criteria, derived from that article.
42 As regards, in the first place, the assessment of whether an agreement conferring jurisdiction is sufficiently precise for the purpose of determining the court or courts of a Member State which is to settle any disputes which have arisen or which may arise between the parties, it should be recalled that the case-law of the Court, relating to the first sentence of the first paragraph of Article 17 of the Brussels Convention and to the first sentence Article 23(1) of the Brussels I Regulation, held that the terms ‘have agreed’, which appear in those provisions, cannot be interpreted as meaning that it is necessary for such a clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause state the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case being examined by the court (judgments of 9 November 2000, Coreck, C‑387/98, EU:C:2000:606, paragraph 15, and of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 43).
43 Moreover, the Court has held, in essence, that in order to facilitate the mutual recognition and enforcement of judicial decisions, the first sentence of the first paragraph of Article 17 of the Brussels Convention lays down a requirement as to precision which the agreement conferring jurisdiction must satisfy (see, to that effect, judgment of 9 November 2000, Coreck, C‑387/98, EU:C:2000:606, paragraph 17).
44 It follows that, pursuant to the first sentence of the first paragraph of Article 17 of the Brussels Convention and to the first sentence of Article 23(1) of the Brussels I Regulation, the condition that the parties ‘have agreed’ on a court or courts of a contracting State or a Member State includes a requirement of precision in order to be valid.
45 Since Article 25 of the Brussels Ia Regulation, which, according to the table in Annex III to that regulation, corresponds to Article 23 of the Brussels I Regulation, also contains the words ‘have agreed’, that case-law is capable of being applied to Article 25(1) of the Brussels Ia Regulation (see, to that effect, judgment of 25 April 2024, Maersk and Mapfre España, C‑345/22 to C‑347/22, EU:C:2024:349, paragraph 52 and the case-law cited), with the result that, in accordance with the latter provision, an agreement conferring jurisdiction must, in order to be valid, identify with sufficient precision the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them.
46 In addition, the imposition of the requirement of precision necessarily assists in the attainment of the objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16 of the Brussels Ia Regulation.
47 Therefore, the requirement for precision which determines whether an agreement conferring jurisdiction is valid must be examined having regard not to criteria relating to the causes of an agreement being ‘null and void as to its substantive validity’, within the meaning of the first sentence of Article 25(1) of the Brussels Ia Regulation, but to autonomous criteria which are derived from that Article 25 as interpreted by the Court.
48 As regards, in the second place, the assessment of the alleged asymmetry of an agreement conferring jurisdiction, it should be noted that, in accordance with Article 25(4) of the Brussels Ia Regulation, agreements conferring jurisdiction have no legal force, inter alia, if they are contrary to the conditions for validity set out in Articles 15, 19 and 23 of that regulation. It follows from those latter articles that an agreement conferring jurisdiction retains its validity if it permits the weaker party to an insurance contract, a consumer contract or an employment contract to bring proceedings before courts other than those which are, in principle, competent pursuant to the provisions of Sections 3 to 5 of Chapter II of that regulation, to which those articles respectively relate. By contrast, pursuant to Article 25(4), such an agreement is null and void if it provides for an exclusion of jurisdiction for the benefit of the insurer, co-contractor or employer.
49 As is apparent from recital 18 of the Brussels Ia Regulation, asymmetry between the parties is a feature of insurance contracts, consumer contracts and employment contracts, which the provisions of Articles 15, 19 and 23 of that regulation seek to correct by giving the weaker party the benefit of the rules of jurisdiction more favourable to its interests than the general rules (see, to that effect, judgment of 29 July 2024, FTI Touristik (International element), C‑774/22, EU:C:2024:646, paragraph 44).
50 Thus, as regards those contracts, Article 25(4) of the Brussels Ia Regulation, read in conjunction with Articles 15, 19 and 23 thereof, expressly governs the situations in which an asymmetric agreement conferring jurisdiction is valid and those in which it is not.
51 Therefore, it must be held that the validity of an agreement conferring jurisdiction in view of its alleged asymmetry must be examined having regard not to criteria relating to the causes of an agreement being ‘null and void as to its substantive validity’, within the meaning of the first sentence of Article 25(1) of the Brussels Ia Regulation, but to autonomous criteria which are derived from that Article 25 as interpreted by the Court.
52 That interpretation is not called into question by the fact that Article 17 of the Brussels Convention provided that: ‘if the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention’ and thus implicitly accepted the validity of an agreement conferring jurisdiction notwithstanding its asymmetry. Admittedly, neither Article 23 of the Brussels I Regulation nor Article 25 of the Brussels Ia Regulation contain an equivalent rule as regards the validity of such an agreement which is asymmetric. However, it suffices to note, as the Commission does in its written observations, that it is apparent from the reasons given for the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM(1999) 348 final, p. 19), which led to the Brussels I Regulation, that the objective of deleting that rule reflected nothing other than the choice of the EU legislature to ‘[confirm] that the jurisdiction conferred by a choice-of-forum clause is an exclusive jurisdiction …, while enabling the parties to agree that this jurisdiction is not exclusive [, this] additional flexibility [being] warranted by the need to respect the autonomous will of the parties’.
53 Having regard to the foregoing considerations, the answer to the first question, is that Article 25(1) of the Brussels Ia Regulation 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 second question
54 By its second question, the referring court asks, in essence, whether Article 25(1) of the Brussels Ia Regulation 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.
55 In the first place, to the extent that, in the present case, the agreement conferring jurisdiction at issue appears to permit SIL to bring proceedings before courts of different States, in that it provides that that company reserves the right to bring proceedings ‘before another competent court in Italy or elsewhere’, it should be observed that, although the wording of the first sentence of Article 25(1) of the Brussels Ia Regulation refers to the courts ‘of a Member State’, that provision cannot be interpreted as meaning that the parties must necessarily designate the courts of a single and the same Member State.
56 To impose such a limit would be contrary to the freedom of choice of the parties which, as is apparent from recital 19 of the Brussels Ia Regulation, should be respected, subject to, first, the exceptions provided for in Article 25(4) of that regulation, read in conjunction with Articles 15, 19 and 23 thereof, in matters of insurance contracts, consumer contracts and employment contracts, in which agreements conferring jurisdiction may derogate only to a limited extent from the jurisdiction rules laid down by that regulation, and, second, the courts which have exclusive jurisdiction, in accordance with that Article 25(4), read in conjunction with Article 24 of the same regulation.
57 Furthermore, the courts with jurisdiction pursuant to the provisions of Chapter II of the Brussels Ia Regulation confirm the fact that the parties may, in certain situations, bring proceedings before several Member States. It is clear from Article 4(1), and Article 5(1) of that regulation, read in conjunction with Articles 7 and 8 thereof, that a person domiciled in a Member State may not only be sued before the courts of that Member State, but also before the courts of another Member State, notably if the place of performance of the contractual obligation concerned, the place where a harmful event occurred or the domicile of another defendant is located in that other Member State.
58 Thus, in the present case, the validity of the agreement conferring jurisdiction at issue cannot be called into question having regard to Article 25(1) of the Brussels Ia Regulation on the ground that that agreement permits a party to bring proceedings before the courts of different Member States or States that are parties to the Lugano II Convention, within the meaning of the first sentence of Article 23(1) thereof, read in conjunction with Article 1(3) thereof.
59 In the second place, it should be noted that an agreement conferring jurisdiction which designates with sufficient precision the courts of the Member States or States that are parties to the Lugano II Convention which may be seised, namely, on the one hand, a particular court and, on the other hand, other courts which have jurisdiction pursuant to the provisions of Chapter II, Sections 1 and 2 of the Brussels Ia Regulation as well as of Title II, Sections 1 and 2 of that convention, satisfies the requirement of precision resulting from Article 25(1) of that regulation and the objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16 of that regulation. That would amount to, in fact, a reference to the general rules of jurisdiction provided for by that regulation and that convention.
60 However, it must be clarified that, if, in referring to ‘another competent court … elsewhere’, the agreement conferring jurisdiction at issue must be interpreted as meaning that it also designates one or several courts of one or more States which are not Members of the European Union or parties to the Lugano II Convention, it would be contrary to the Brussels Ia Regulation. In that case, that agreement conferring jurisdiction would not be consistent with the objectives of foreseeability, transparency and legal certainty referred to in recitals 15 and 16 of that regulation, to the extent that EU law does not, in itself, make it possible to designate the courts which have jurisdiction, as that designation is, where appropriate, the result of the application of the rules of private international law of third countries.
61 On such a hypothesis, there would be an increased risk of conflicts of jurisdiction arising which would be detrimental to legal certainty, since the application of those national rules would be likely to lead to divergent answers (see, to that effect, judgment of 8 February 2024, Inkreal, C‑566/22, EU:C:2024:123, paragraph 31).
62 Hence, the agreement conferring jurisdiction at issue is incapable of satisfying the requirement of precision, in the light of the case-law referred to in paragraph 42 of the present judgment, unless it may be interpreted as designating the court of Brescia and the courts of Member States or States that are parties to the Lugano II Convention as having jurisdiction to resolve disputes between the parties.
63 In the third place, as regards the validity of an agreement conferring jurisdiction which confers greater rights on one party than on the other, it must be held that, save in the cases expressly prohibited by the Brussels Ia Regulation, the asymmetric nature of such an agreement is not such as to call into question its validity on the basis of the requirements set out in Article 25 of the regulation.
64 In the same way as the Brussels Convention and the Brussels I Regulation, Article 25 of the Brussels Ia Regulation is based on the principle of the parties’ freedom of choice (see, to that effect, judgments of 9 November 2000, Coreck, C‑387/98, EU:C:2000:606, paragraph 14; of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 26; and of 18 November 2020, DelayFix, C‑519/19, EU:C:2020:933, paragraph 38). As is clear from paragraph 56 of the present judgment, the conclusion must be drawn from recital 19 of the Brussels Ia Regulation that the EU legislature intended that respect for that principle should prevail, with the result that it is appropriate to give effect to the parties’ choice, subject to the exceptions laid down in Article 25(4) of that regulation, read in conjunction with Articles 15, 19, 23 and 24 thereof. In addition, as is clear from paragraphs 48 to 50 of the present judgment, Articles 15, 19 and 23, to which Article 25(4) refers, explicitly permit the conclusion of agreements conferring jurisdiction which are asymmetric in favour of the weaker party to an insurance contract, a consumer contract or an employment contract, respectively. Accordingly, the asymmetric nature of such an agreement does not render it unlawful, if the parties have freely consented to it.
65 In the present case, subject to the verifications to be made by the referring court, the agreement conferring jurisdiction at issue does not appear either to be contrary to the provisions of Articles 15, 19 or 23 of the Brussels Ia Regulation or to derogate from an exclusive jurisdiction pursuant to Article 24 thereof, with the result that it is not contrary to Article 25 of that regulation, notwithstanding its asymmetric nature.
66 In any event, it is clear from the second sentence of Article 25(1) of the Brussels Ia Regulation that the jurisdiction of the court designated by the agreement conferring jurisdiction is exclusive unless the parties have agreed otherwise. Therefore, the fact that, under the terms of the agreement conferring jurisdiction at issue, only Agora is required to comply with that exclusive jurisdiction conferred on the court of Brescia does not appear, in itself, to be contrary to that Article 25.
67 In the light of the forgoing considerations, the answer to the second question is that Article 25(1) and (4) of the Brussels Ia Regulation 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 II 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.
The third question
68 In view of the answer given to the first question, there is no need to answer the third question.
Costs
69 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
1. Article 25(1) 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
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.
2. Article 25(1) and (4) of Regulation No 1215/2012
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 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008, 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.
