Opinion of the Advocate General — ECLI:EU:C:2023:889
Date: 2023-11-16
Language of the case: Spanish
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-345/22 – 1 
Case C-345/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 May 2022 
Referring court: 
Audiencia Provincial de Pontevedra (Spain) 
Date of the decision to refer: 
16 May 2022 
Appellant: 
Maersk A/S 
Respondent: 
Allianz Seguros y Reaseguros, S. A. 
  
Subject matter of the main proceedings 
‘Regulation (EU) No 1215/2012 – Jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters – Article 25 – 
Jurisdiction clause included in a bill of lading – Enforceability of this clause 
against a third-party holder of the bill of lading and consignee of the goods – 
Compatibility with EU law of a national provision which requires that, in order to 
be enforceable against a third-party holder, the clause must have been individually 
and separately negotiated with the holder.’ 
Subject matter and legal basis of the request 
‘Reference for a preliminary ruling on interpretation – Article 267 TFEU – 
Compatibility of a national provision with Regulation (EU) No 1215/2012 – 
National provision which imposes additional validity requirements in order for a 
jurisdiction clause to be enforceable against third parties’ 
EN 
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Questions referred for a preliminary ruling 
1.– Does the provision in Article 25 of Regulation 1215/2012 which establishes 
that the automatic nullity of the agreement conferring jurisdiction must be 
examined in accordance with the law of the Member States on which the parties 
have conferred jurisdiction also apply – in a situation such as that in the main 
proceedings – to the question of the validity of the application of the clause to a 
third party who is not a party to the contract containing the clause in question? 
2.– Where the bill of lading is delivered to a third-party consignee of the goods 
who was not involved in the conclusion of the contract between the shipper and 
the maritime carrier, is a rule such as that in Article 251 of the Ley de Navegación 
Marítima (Shipping Law), which requires that, in order to be enforceable against 
that third party, the jurisdiction clause must have been negotiated ‘individually 
and separately’ with that party, compatible with Article 25 of Regulation 
1215/2012 and with the case-law of the European Court of Justice interpreting that 
article? 
3.– Is it possible under EU law for Member States’ legislation to establish 
additional validity requirements in order for jurisdiction clauses included in bills 
of lading to be enforceable against third parties? 
4.– Does a rule such as that in Article 251 of the Spanish Shipping Law – which 
establishes that the subrogation of the third-party holder is only partial, and does 
not apply to prorogation of jurisdiction clauses – entail the introduction of an 
additional requirement for the validity of such clauses, contrary to Article 25 of 
Regulation 1215/2012? 
Provisions of European Union law and case-law relied on 
Regulation (EU) 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 (recast). In particular, recital 19 and 
Article 25(1), (2) and (5). 
Judgments of the Court of Justice of 19 June 1984, Russ (71/83, EU:C:1984:217); 
of 16 March 1999, Castelletti (C-159/97, EU:C:1999:142); of 9 November 2000, 
Coreck (C-387/98, EU:C:2000:606); of 7 February 2013, Refcomp SpA (C-543/10, 
EU:C:2013:62, paragraphs 34 and 35); and of 18 November 2020, DelayFix 
(C-519/19, EU:C:2020:933). 
Provisions of national law and case-law relied on 
Shipping Law 14/2014 of 24 July 2014 (‘the LNM’). 
MAERSK 
 
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Section XI of the preamble states that, in order to prevent abuses that have been 
identified, Chapter I of the law establishes that clauses in contracts for the use of a 
ship or in ancillary shipping contracts which provide for submission to a foreign 
jurisdiction or to arbitration abroad are void if they have not been individually and 
separately negotiated. 
Article 251 contains provisions on the effectiveness of the delivery of a bill of 
lading. Delivery of a bill of lading will have the same effects as delivery of the 
goods represented by the bill, and the acquirer of the bill will acquire all the 
transferor’s rights and actions over the goods. Agreements on jurisdiction and 
arbitration are excluded from such subrogation, and will require the consent of the 
acquirer in accordance with Chapter I of Title IX. 
Article 468 provides that, without prejudice to international agreements applicable 
in Spain and to EU rules, clauses in contracts for the use of a ship or in ancillary 
shipping contracts which provide for submission to a foreign jurisdiction or to 
arbitration abroad will be void and deemed not to exist if they have not been 
individually and separately negotiated. This requirement will not be deemed to be 
satisfied by the mere inclusion of the clause in the printed terms of the contract in 
question. 
Where the parties have not included a valid sole jurisdiction clause or arbitration 
clause in accordance with the legislation, Article 469 establishes the criteria for 
conferring jurisdiction. In contracts for the use of a ship, jurisdiction will lie with 
the courts of the defendant’s domicile, of the place where the contract is executed, 
or of the port of loading and discharge, at the choice of the defendant; in ancillary 
shipping contracts the final option is replaced by the courts of the place where the 
services are supplied. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, Allianz Compañía de Seguros y Reaseguros, S. A., is an insurance 
company which is subrogated to the rights of its client, Oversea Atlantic Fish, 
S. L., in an action brought against the maritime transport operator Maersk. 
According to the claim, the defendant was liable by virtue of its contractual 
position as the carrier in the contract of carriage by sea on CFR terms concluded 
by Aguafrost Perú, as the shipper, and the defendant Maersk (Maersk Line Perú, 
S.A.C.), as the maritime transporter or carrier. Oversea Atlantic Fish, S. L was the 
consignee of the goods. According to the claim, the goods arrived damaged at the 
port of destination, leading to their partial loss and resulting in a claim for 
damages of EUR 67 449.71. 
2 The contract of carriage was documented in a bill of lading. A jurisdiction clause 
had been inserted on the reverse side of the document, which was not included 
with the claim. 
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3 Maersk contested the jurisdiction of the Spanish courts on the basis of the 
abovementioned jurisdiction or choice of forum clause, contained in Clause 26 of 
the bill of lading, which conferred jurisdiction over claims against the carrier on 
the High Court of Justice in London and stipulated that the bill of lading was 
governed by English law. 
4 The section of the bill of lading containing the details of the parties established 
that the bill was negotiable only if it included the phrase ‘to order’, ‘to the order 
of’ a named person, or ‘to the order of the bearer’. 
5 The conferral of jurisdiction on a court of the United Kingdom must be treated as 
conferring jurisdiction on a Member State, pursuant to Article 67(1) of the 
Agreement of 17 October 2019 on the withdrawal of the United Kingdom of Great 
Britain and Northern Ireland from the European Union and the European Atomic 
Energy Community, since the legal proceedings were instituted before the 
transition period ended on 31 December 2020. 
6 The court of first instance dismissed the challenge to jurisdiction and the 
subsequent appeal filed against that decision by Maersk. 
7 With regard to the substance of the case, in its defence Maersk argued that the 
contract between the parties was a multimodal transport contract which included a 
prior land stage, and that the cold loss could therefore have occurred during that 
prior stage, that the container’s cooling equipment was operating properly, and 
that the cold loss was due to faulty stowage. 
8 The court of first instance found the applicant’s arguments, which attributed the 
loss of the goods to the defective operation of the container’s cooling equipment, 
more credible, leading it to uphold the claim in full and to find against the 
defendant carrier. 
The essential arguments of the parties in the main proceedings 
9 The scope of the appeal is limited to contesting the jurisdiction of the Spanish 
courts, and it repeats the arguments in the original challenge to jurisdiction. In the 
appeal, Maersk rejects the notion that the insurer of the applicant – the consignee 
of the transport – can be considered a third party unconnected to the contract of 
carriage by sea, since the waybill was a bill made out to a named person and 
expressly named the consignee, who was the purchaser of the goods. The 
appellant argues that Article 251 of the LNM does not apply in this case, and 
maintains that the applicant knew of the existence of the jurisdiction clause. 
10 In the appeal it is argued that, for the purposes of applying the case-law of the 
Court of Justice and applying national law, namely Article 251 of the LNM, 
regard must be had to Spanish conflict of law rules, which look to the application 
of Peruvian law to determine the extent of subrogation of the consignee to the 
position of the shipper. 
MAERSK 
 
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11 The appeal also puts forward arguments concerning the contradiction between the 
national legislation and [EU] legislation. It argues that the view of the Court of 
Justice is that the consignee is subrogated ‘en bloc’, by contrast with the LNM, 
which ‘produces a change in the contract independent of the shipping company’. 
Moreover, the consent of the consignee must be assessed under [EU] law, in 
accordance with the requirements of Article 25 of Regulation 1215/2012. Lastly, 
the appellant requested that the matter be referred to the Court of Justice for a 
preliminary ruling. 
12 Before ruling on the substance of the case, the Audiencia Provincial (Provincial 
Court) heard the arguments of the parties on the appropriateness of a reference to 
the Court of Justice of the European Union for a preliminary ruling. While 
lawyers acting for Maersk argue that the matter should be referred, in view of the 
uncertainty over the compatibility of Spanish legislation with Regulation 
1215/2012, lawyers acting for the applicant consider that the issue has been 
decided by the judgment of 9 November 2000, Coreck, (C-387/98, 
EU:C:2000:606), and there is therefore no need for a reference. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 The appeal raises an issue which often comes before the courts in claims for 
damages for damage and loss to goods under contracts of international carriage by 
sea. The issue is to determine whether a prorogation of jurisdiction clause 
conferring jurisdiction on the court of a third State (in this case, the High Court of 
the United Kingdom), included in the contractual document containing the 
contract for the international carriage of goods by sea, can be relied on against the 
consignee. In this case, the contract was documented in a bill of lading whose 
general substantive aspects are governed by the legal regime of the Hague-Visby 
Rules. 
14 The problem lies in determining whether that clause, which was included by the 
parties to the contract of carriage (shipper and carrier), is enforceable against the 
consignee, which entered into the international contract of sale with the seller on 
CFR terms, meaning that the seller was responsible for arranging carriage and 
paying freight charges. 
15 Regulation 1215/2012 reinforces the autonomous freedom of choice of the 
contracting parties over the applicable jurisdiction. The regulation removes the 
requirement – included in the Brussels Convention and Regulation 44/2001 – for 
at least one of the parties to the choice of forum agreement to be domiciled in a 
Member State, with the result that – except where matters of exclusive jurisdiction 
are involved – autonomy in determining international jurisdiction extends to cases 
involving contracting parties not domiciled in the European Union, provided that 
the jurisdiction chosen in the agreement is that of a Member State. For the same 
reason a uniform conflict of law rule is also included, which provides that the 
substantive validity of the agreement will be governed by the substantive law of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-345/22 
 
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the designated State, and the fact that prorogation of jurisdiction clauses are 
deemed to be independent of the other terms of the contract serves to reinforce 
their autonomy [Article 25(5) of the regulation; see the judgment of 18 November 
2020, DelayFix (C-519/19, EU:C:2020:933)]. 
16 The concept of an agreement or clause conferring jurisdiction is an autonomous 
one which has been developed by the Court of Justice in its case-law. Its 
interpretation has been included in successive versions of the positive rules. 
Today, Article 25(1) of the regulation continues to make extensive provision on 
the requirements governing prorogation of jurisdiction clauses, following the 
Court’s line of interpretation of Article 17 of the Brussels Convention: (a) an 
agreement in writing or evidenced in writing (which also includes electronic 
means); (b) an agreement in a form which accords with practices which the parties 
have established between themselves; (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. 
17 The precept is similar to the provisions in Article 17 of the Brussels Convention, 
the original version of which permitted, as an alternative to an agreement in 
writing (or evidenced in writing), a form which accords with practices between 
the parties. Thus, the clause would be valid provided it was agreed ‘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 text incorporates the case-law established by the judgment of the 
Court of Justice of 16 March 1999, Castelletti (C-159/97, EU:C:1999:142), and 
offers grounds for maintaining that in EU law there is a presumption that a 
contracting party is aware of the existence of a jurisdiction clause, since the clause 
is in normal usage in the international maritime transport sector as a whole and is 
not restricted to transport in a particular region or to a specific type of freight. In 
paragraph 27, the judgment expressly stated that the fact that ‘a practice is 
generally and regularly observed by operators in the countries which play a 
prominent role in the branch of international trade or commerce in question’ 
constituted a presumption of consent. The judgment expressly stated that this 
circumstance could be demonstrated by showing that the same parties had 
previously had commercial or trade relations between themselves or with other 
parties operating in the sector in question, or that the relevant conduct is generally 
well known; supporting evidence may be provided by the fact that the relevant 
associations publicise their standard forms of contract. Moreover, under the 
interpretation provided by the Court of Justice, there is no need for any link 
between the chosen jurisdiction and the nationality of the parties to the contract or 
the subject matter of the dispute. It is generally accepted case-law that the national 
courts should not examine the clause on the basis of its rationale or the objective 
being pursued by the party which inserted the clause. By contrast with this 
provision, as we have seen, Article 468 of the LNM requires express, separate and 
MAERSK 
 
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individual consent. This rule does not apply where the clause confers jurisdiction 
on a Member State. 
18 Jurisdiction clauses and choice of governing law clauses are an inherent part of 
international maritime transport. The clause is an autonomous agreement within 
the legal relationship of which it forms a part; the severability of the prorogation 
of jurisdiction clause means that it can be subject to a different legal regime from 
the remainder of the contract of which it forms a part as far as the applicable 
substantive law is concerned. Thus the clause may be valid even if the contract is 
void. But the fact that the jurisdiction clause is autonomous does not mean that it 
is completely unconnected to the other agreements comprising the legal 
relationship of which it forms a part. The clause cannot be completely 
disconnected from the contract, and therefore it will follow the contract in the 
event of a novation involving a change of either party. This is a fundamental 
element where the clause is included in a document which is classed as a security, 
as is the case with a bill of lading. 
19 The autonomous freedom of choice of applicable jurisdiction enjoyed by the 
contracting parties constitutes one of the fundamental criteria for determining 
international jurisdiction. This is also the approach adopted by [EU] law, first in 
the 1968 Brussels Convention and then in Regulation 44/2001, and it also clearly 
applies under the regime established by Regulation 1215/2012 of 12 December 
2012 (recital 19). The Brussels I bis Regulation (Article 25) and its interpretation 
by the Court of Justice have established uniform provisions governing the 
determination of the formal requirements for the validity of prorogation of 
jurisdiction agreements and their enforceability against third parties, within the 
scope of application of the regulation. 
20 However, with the entry into force of the LNM, Spanish law has established its 
own provision governing the validity of jurisdiction and arbitration clauses. While 
the LNM establishes that international rules and the rules of EU law are generally 
applicable, it includes three provisions on jurisdiction and arbitration clauses. Two 
of these – Articles 468 and 469 – are of general application and are included in 
Title IX, which deals with ‘specific procedural rules’; the other – Article 251 – 
governs the effectiveness of the delivery of a bill of lading in a contract of 
affreightment for the carriage of goods. 
21 Article 468 of the LNM regulates the formal aspects of the inclusion of the clause 
and the requirements for its substantive validity; it applies to contracts for the use 
of a ship and ancillary shipping contracts. Article 469 is a supplementary 
provision which establishes the criteria for ascribing international jurisdiction in 
the alternative, where there is no valid jurisdiction clause. Lastly, Article 251 is a 
rule which applies Article 468 in those cases where the clause is included in a bill 
of lading specifically as part of a contract for the carriage of goods, and the bill 
passes to a third-party acquirer. These rules are not found in the Brussels I bis 
Regulation, nor do the Hague-Visby Rules contain any provision on this matter. 
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22 The rationale given for these provisions in the explanatory memorandum is that 
they are intended to ‘prevent abuses that have been identified’. The phrase refers 
to the concept of the need to protect the interests of national recipients – those in 
the weakest contractual position – who hold bills of lading containing a 
jurisdiction clause included by the original parties, particularly in the case of liner 
carriage contracts. The underlying thinking is that forcing national undertakings 
which ship and receive goods to pursue small claims in foreign jurisdictions may 
in practice mean that they are denied an effective remedy. In the light of this 
reasoning, the aim is to ensure that jurisdiction and arbitration clauses bind the 
parties only where it can be demonstrated that they have been negotiated 
individually and separately; the mere inclusion of a clause in a pre-formulated 
standard contract does not satisfy those requirements, which are intended to apply 
to attempts to impose the clause on a third-party recipient of the bill of lading. 
23 From this initial perspective, the referring court believes that there would be 
nothing to prevent domestic law from making specific provision in cases that are 
not covered by international agreements of preferential application or by EU law. 
In its opinion, the problem arises where the intention is to make the domestic rules 
generally applicable, in order to fill the apparent gaps in the application of EU 
legal rules. That is why it has decided to make this reference for a preliminary 
ruling. 
24 In the judgment of 9 November 2000, Coreck (C-387/98), the Court of Justice 
repeated the case-law established in Russ, stating that ‘in so far as the jurisdiction 
clause incorporated in a bill of lading is valid […] as between the shipper and the 
carrier, it can be pleaded against the third party holding the bill of lading so long 
as, under the relevant national law, the holder of the bill of lading succeeds to the 
shipper’s rights and obligations’. 
25 This interpretation is consistent with the effect of the transfer of securities and the 
demands of maritime transport in particular. The clause will be enforceable 
against third parties where, under domestic law, the holder of the bill is 
subrogated to the shipper’s obligations. In this case, it is irrelevant whether or not 
that third party has consented to the jurisdiction clause: the clause applies to it in 
any event, because otherwise the third party would enjoy more rights than the 
party it replaces. By contrast, if the third-party holder of the bill is not subrogated 
to the shipper’s rights, the objection makes sense, because there is no reason why 
the submission to jurisdiction should apply to it if it has not consented to it. The 
effect of the transfer of title on the transferee will thus be determined by domestic 
rules. The holder of the bill will be subrogated in full where the contract document 
is a security, which typically occurs in the case of bills of lading. The same effect 
does not occur in the case of other contractual documents, such as sea way-bills, 
which are not securities. 
26 However, the referring court wonders whether there is a possible contradiction 
between this case-law and the provisions of Article 251 of the LNM. Under one 
interpretation, when the Court of Justice refers to ‘applicable national law’, it is 
MAERSK 
 
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referring precisely to Article 251 of the LNM. According to this theory, under 
Spanish law a security does not involve a full assignment of rights, meaning that 
in all cases the jurisdiction clause would have to be negotiated individually and 
separately. This is the interpretation adopted by Section 15 of the Audiencia 
Provincial de Barcelona (Provincial Court, Barcelona), in order 218/2016 of 
21 December 2016, in a situation in which the clause conferred jurisdiction on the 
courts of Marseille, and in judgment 1463/2019 of 23 July 2019 of the same court, 
among other judgments. There are no judgments by the Tribunal Supremo 
(Supreme Court) on this issue 
27 However, the referring court has considered the possibility that domestic law 
cannot apply where EU law applies, as is the case here, for the reasons set out 
below. 
28 In the first place, the referring court asks itself whether the law to be applied in 
judging the validity of the clause should be that of the State on which the clause 
confers jurisdiction – in this case, the United Kingdom. This is the outcome 
produced by a literal interpretation of Article 25(1), which establishes that the 
nullity, ‘as to its substantive validity’, of the agreement conferring jurisdiction is 
to be determined ‘under the law of that Member State’, that is, the State on which 
the parties have conferred jurisdiction, as the Court of Justice stated in the 
judgment of 3 July 1997, Benincasa (C-269/95, EU:C:1997:337), and the 
judgment of 18 November 2020, DelayFix (C-519/19, EU:C:2020:933). If that is 
the case, where the clause confers jurisdiction on the courts of another Member 
State, Article 468 of the LNM cannot be relied on in order to require that the 
clause must have been negotiated individually and separately; instead, in judging 
the intrinsic validity of this type of clause one must look to the requirements of the 
substantive legislation of that Member State. 
29 In the second place, if one takes the view that the transfer of rights consequent on 
the delivery of the bill of lading is governed by the domestic rule in Article 251, 
and that, where the bill has been transferred, one has to examine whether the third-
party holder of the document has consented individually and separately to the 
clause, then the question that arises is what form this consent should take; in the 
view of the referring court, this question is governed by [EU] law rather than 
national law. Otherwise, the result would be that each Member State would apply 
its domestic legal criteria to a matter which is expressly regulated by the 
regulation and which is of mandatory application. We have already seen that the 
regulation adopts the criterion of presumed consent where the requirements of 
Article 25(1) are met, and this rule has also been applied without question by the 
Spanish courts (see the judgments of the Supreme Court of 29 September 2005; of 
8 February 2007; of 5 July 2007; and of 27 May 2008, among others). 
30 And in the third place, the referring court raises the question of whether a 
provision such as Article 251 of the LNM is compatible with the case-law of the 
Court of Justice, given that it establishes a separation between the legal regime 
governing the effectiveness of the delivery of a bill of lading and the regime 
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applicable to choice of forum agreements included in the bill. The case-law of the 
Court of Justice has established that ‘in so far as the jurisdiction clause 
incorporated in a bill of lading is valid […] as between the shipper and the carrier, 
it can be pleaded against the third party holding the bill of lading so long as, under 
the relevant national law, the holder of the bill of lading succeeds to the shipper’s 
rights and obligations’ [judgment of 9 November 2000, Coreck (C-387/98, 
EU:C:2000:606)]. [In his Opinion in Coreck (C-387/98, EU:C:2000:157), in his 
suggested response by the Court of Justice to the questions referred in respect of 
Article 17 of the Brussels Convention (the precursor to Article 25 of the 
regulation), Advocate General Alber] draws a distinction between the 
enforceability of a jurisdiction clause inter partes and against a third-party holder: 
‘(3) A third-party holder of a bill of lading is bound by the jurisdiction clause in a 
bill of lading if the clause is valid and if the third party, by virtue of the relevant 
national law, has succeeded to the shipper’s rights and obligations. If he has not 
succeeded to the shipper’s rights and obligations, the jurisdiction clause cannot be 
relied on against him unless he consented to it. Special knowledge or long-
standing business relations with the carrier are not sufficient to assume that there 
was implied consent. (4) It is for the national court to decide which national law is 
to be applied in order to determine whether the third-party holder of a bill of 
lading has succeeded to the shipper’s rights and obligations. The same is true of 
the question as to which law is applicable where national law does not resolve the 
question whether the third-party holder has succeeded to the shipper’s rights and 
obligations.’ 
31 The referring court raises the question whether these effects of the subrogation of 
the consignee to the position of the shipper are substantive effects consequent on 
the assignment of the security, which would mean that, under EU law, the clause 
can be relied on from the moment the full subrogation of rights occurs, or 
whether, instead, national law can establish other requirements as to the validity of 
the jurisdiction clause in this context. 
32 The response to these questions is relevant to a decision in the proceedings, 
because if it is concluded that the consignee’s consent must be given in the 
manner established in Regulation 1215/2012, this would mean that the clause 
could be relied on, given the widespread acceptance of this type of clause within 
the sector in question, which would result in the dismissal of the claim and the 
discontinuance of the proceedings. 
33 The same solution would occur if it was concluded that the effects of the delivery 
of the bill of carriage are substantive, meaning that domestic law cannot make 
separate provision to regulate the content of the rights that are transferred and the 
enforceability of the choice of forum clause.