Cour de cassation 1ère Chambre civile; 2022-09-07; 1re Civ., 7 décembre 2022, pourvoi n° 21-17.492
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2022:C100887
Date: 2022-12-07
Subject matter: Judicial cooperation in civil matters
Origin: France

82022FR1207(51)_ENG_SUMJURE
JURE summary
JURE summary
Mr K (hereinafter ‘the plaintiff’) resides in France. He took out a loan with the Luxembourg bank Landsbanki (hereinafter ‘the defendant’), represented in this case by its liquidator. The loan contract contains a potestative provision (unilateral jurisdiction clause) giving the bank full discretion in calculating the repayment due by the plaintiff.
The defendant obtained a Luxembourgish judgment dated 27 April 2016 against the plaintiff. The defendant applied for recognition in France. The request was granted by the Cour d'appel d'Aix-en-Provence (hereinafter ‘the Court of Appeal’) in a judgment recognising the enforceability of the Luxembourgish decision. The plaintiff appealed to the Cour de cassation (hereinafter ‘the Supreme Court’).
The plaintiff complained that the judgment recognised the Luxembourgish judgement, even though this decision was flawed in that it admits the jurisdiction of the Luxembourg courts. The latter ruled that the defendant’s claim before them was a counterclaim to the plaintiff's original claim for the admission of a debt to the liabilities of the insolvency proceedings. However, as a consumer, the bank's later claim falls within the jurisdiction of the court of his place of domicile, in this case, France. The Court of Appeal's decision was vitiated by a lack of legal basis under Articles 15, 16, 35 and 45 of the Brussels I Regulation (1).
The Supreme Court dismissed the appeal on the grounds that Articles 34 and 36 of the Brussels I regulation allow recognition of a decision to be denied only if it is manifestly contrary to the public policy of the requested State. The Court pointed out that the decision cannot be reviewed on its merits.
The Supreme Court added that the exception of non-recognition if a decision is contrary to public policy applies to the infringement of a rule of law essential to the legal order of the Union, and therefore to that of the requested Member State, or of a right recognised as fundamental in these legal orders, in accordance with the principles laid down in Case C-681/13.
Thus, in holding that the clause disputed by the plaintiff did not violate Article 1174 of the code civil, in its wording before the 2016 amendment, which prohibited potestative clauses, the Court of Appeal correctly reasoned its decision.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
(2) Judgement of the Court of Justice of 16 July 2015, Diageo Brands BV vs. Simiramida-04 EOOD, C-681/13, ECLI:EU:C:2015:471.
(3) Code civil (Civil Code).