EuGH; 2023-04-27; C-352/21
Judgment;Summary;Decision by national courts in the field of European Union law — ECLI:EU:C:2023:344
Date: 2023-04-27
Language of the case: Danish
Court formation: Sixth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Brussels Convention of 27 September 1968
Procedure: Reference for a preliminary ruling
Origin: Denmark;Germany

Translation C-352/21 – 1 
Case C-352/21 
Request for a preliminary ruling 
Date lodged: 
28 May 2021 
Referring court: 
Østre Landsret (Denmark) 
Date of the decision to refer: 
27 April 2021 
Appellants: 
A1 
A2 
Respondents: 
I 
  
ØSTRE LANDSRET 
RECORD 
27 April 2021 […] 
A1 
and 
A2 
[…] 
v 
I 
[…] 
EN 
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The Østre Landsret (High Court of Eastern Denmark) has decided, pursuant to the 
second paragraph of Article 267 of the Treaty on the Functioning of the European 
Union (‘TFEU’) and after consultation with the parties, to ask the Court of Justice 
of the European Union for a preliminary ruling on the meaning and interpretation 
of Article 15(5) and Article 16(5) 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 
(Brussels I Regulation). 
The proceedings before the High Court of Eastern Denmark concern whether a 
jurisdiction clause in an insurance contract, under which proceedings must be 
brought before the courts of the country of the insurance company’s domicile, 
namely the Netherlands, can be enforced against the policyholder. The scope of 
Article 16(1)(a) and (5) of the Brussels I Regulation, in conjunction with what is 
stated regarding large risks under class 6 in Part A of Annex I to Directive 
2009/138/EC of the European Parliament and of the Council of 25 November 
2009 on the taking-up and pursuit of the business of Insurance and Reinsurance 
(Solvency II Directive), gives rise to doubt in that regard. The question is whether 
Article 16(5) of the Brussels I Regulation must be interpreted as meaning that hull 
insurance for pleasure craft that are not used for commercial purposes is covered 
by the provision, with the effect that a choice of court agreement between an 
insurer and a policyholder who is a consumer can be validly concluded prior to the 
emergence of the dispute. 
A. Facts of the case 
1. On 15 October 2013, the appellants A1 and A2, who are resident in 
Denmark, purchased, following an inspection, a second-hand Nautor Swan 
48 sailing boat from a dealer in Ijmuden in the Netherlands. According to 
the contract of purchase/sale, which was concluded between the parties on 
15 October 2012, the purchase price amounted to EUR 315 000 and the 
acquisition took place on 1 November 2013. 
2. With effect from 1 November 2013 the appellants also took out liability and 
hull insurance with the respondent insurance company, I, which has its head 
office in the Netherlands. 
3. On the insurance company’s ‘Application form yacht insurance’ the 
appellants stated that the sailing boat would have its home port in Helsingør 
Nordhavn, Denmark, and declared inter alia as follows in paragraph 13: 
‘a. Will the vessel only be used privately and for recreation? – x yes 
b. Will the vessel be let out or chartered? – x no’ 
A1 AND A2 
 
3 
4. In the policy which the appellants received from the insurance company, 
reference was made to insurance terms ‘PLV 2010’. Paragraphs 1.7.5 and 
1.7.6 of the insurance terms state as follows: 
‘Complaints 
1.7.5 Any complaints and disputes that relate to the intermediary services, 
realization and performance of the agreement may first be submitted to the 
Complaints Coordinator of I BV. If the policyholder is not satisfied with the 
latter’s point of view he may apply to “Klachteninstituut Financiële 
Dienstveriening” (Complaints Institute Financial Services) PO Box 93257, 
2509AG THE HA[GU]E, www.klfid.nl. 
Competent court 
1.7.6 If the polic[y]holder does not want to use the possibilities mentioned in 
1.7.5 or if he still does not regard the handling of his complaint as adequate, 
he may submit the dispute to a competent court in the Netherlands.’ 
5. The appellants let the sailing boat overwinter in Ijmuden in the Netherlands 
and sailed it home to Denmark in the spring of 2014. 
6. In 2018 the appellants sailed to Finland where, according to the information 
provided, they ran aground on 26 May 2018. When the sailing boat was 
taken ashore in the spring of 2019 with a view to making it ready for the 
upcoming season, the appellants discovered damage to the keel and hull. On 
14 May 2019, the appellants reported the grounding to the insurance 
company which, following an assessor’s inspection, refused to cover the 
reported damage, citing the nature thereof. 
7. The appellants then brought an action against the insurance company in the 
country of their own domicile, before the Retten i Helsingør (Court of 
Helsingør), claiming that the insurance company should be ordered to cover 
the repair of the damage, which was calculated at DKK 300 000. The 
insurance company contended that the action was inadmissible since, in its 
view, the action was covered by the choice of court agreement in the 
insurance conditions and therefore had to be brought in the Netherlands. 
B. Procedure to date 
1. The Court of Helsingør gave judgment at first instance on 19 May 2020 and 
upheld the plea of inadmissibility raised by the insurance company, meaning 
that the action must be brought before a Netherlands court. 
2. It was agreed before the city court that the question of jurisdiction must be 
resolved in accordance with Section 3 of the Brussels I Regulation on 
jurisdiction in matters relating to insurance. 
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3. In the grounds of its judgment, the Court of Helsingør stated, inter alia, as 
follows: 
‘Under the general rule laid down in Article 11(1)(b) of the regulation, [the 
appellants] may, in principle, bring an action against [the respondent] before 
the court of their place of domicile (the Court of Helsingør). 
The question is whether the parties’ choice of court agreement is valid, since 
the action must, where appropriate, be brought before a Netherlands court. 
Under Article 15(5) of the Brussels I Regulation – which is the relevant 
provision in the present case – the provisions of Section 3 of the regulation 
may be departed from by an agreement which relates to a contract of 
insurance in so far as it covers one or more of the risks set out in Article 16. 
Article 16 lists the risks referred to and, under Article 16(5), covers 
‘notwithstanding points 1 to 4, all “large risks” as defined in Directive 
2009/138/EC of the European Parliament and of the Council of 
25 November 2009 on the taking-up and pursuit of the business of Insurance 
and Reinsurance (Solvency II).’ 
Article 13 of the Solvency II Directive contains a long list of definitions, and 
‘large risks’ is defined as covering, inter alia, ‘risks classified under classes 
4, 5, 6, 7, 11 and 12 in Part A of Annex I’ (see Article 13(27)(a)). 
According to Annex 7 to the Law on financial undertakings, which 
transposes the provisions of the directive, class 6 concerns: ‘Ships (sea, lake 
and river and canal vessels): all damage to or loss of river and canal vessels, 
lake vessels [and] sea vessels’. 
In accordance with the natural linguistic meaning, the sailing boat in 
question, which in both the contract of sale drawn up in English and the 
insurance contract of sale drawn up in English is referred to as a ‘vessel’, 
must be regarded as a vessel falling within class 6. 
Against that background, and in accordance with the meaning of class 6 
provided by the Danish Financial Supervisory Authority, the court finds that 
the insurance contract between the parties covers ‘large risks’. Furthermore, 
this cannot be considered incompatible with the fact that the insurance 
contract in question concerns a sailing boat which was purchased for, and is 
insured in the amount of, EUR 315 000. 
The Court finds that there is no basis for adopting the interpretation of 
Article 16 of the Brussels I Regulation put forward in the alternative by the 
[appellants], according to which that provision relates in its entirety only to 
the commercial use of vessels. 
A1 AND A2 
 
5 
The court accordingly finds that the parties’ choice of court agreement is 
valid and therefore the action must be brought before a (competent) 
Netherlands court.’ 
4. The appellants lodged an appeal with the High Court of Eastern Denmark, 
claiming that the case should be referred back or, in the alternative, that the 
case should be heard before the High Court of Eastern Denmark, the 
appellants having claimed that the vessel is not covered by Article 16(5) of 
the Brussels I Regulation since it is a pleasure craft. It is therefore argued 
that the action was rightly brought before the Court of Helsingør at first 
instance. 
5. By order of 12 November 2020, the High Court of Eastern Denmark decided 
to refer a question concerning the interpretation of Article 16(5) of the 
Brussels I Regulation to the Court of Justice of the European Union for a 
preliminary ruling. 
C. Danish rules on jurisdiction and choice of court agreements 
1. The rules on jurisdiction and choice of court agreements are laid down in 
Chapter 22 of the Code of Civil Procedure. Of relevance to the case are 
Paragraphs 244 to 247, which are worded as follows: 
‘Paragraph 244 In cases concerning consumer contracts which have not 
been concluded in person at the trader’s business premises, the consumer 
may bring an action against the trader before the courts of his or her 
domicile. 
Paragraph 245 The parties may agree before which of several similar 
courts an action must be brought. 
Subparagraph 2 In cases concerning consumer contracts, prior agreements 
on choice of court shall not be binding on the consumer. 
… 
Paragraph 246 Actions against persons, companies, societies, private 
institutions and other associations which are not domiciled in Denmark may 
be brought in Denmark in so far as a court can be regarded under 
Paragraphs 237, 238(2), 241, 242, 243 and 245 as having jurisdiction to hear 
the case. In cases concerning consumer contracts, the consumer may bring 
an action against the persons and associations referred to in the first sentence 
before the courts of his or her domicile if conclusion of the contract was 
preceded by the presentation of a specific offer or advertisement in Denmark 
and the consumer took in Denmark the necessary steps for conclusion of the 
contract. 
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… 
Paragraph 247 In cases covered by an international agreement, which is 
transposed into Danish law by the Law on the Brussels Convention etc. or 
the Law on the recognition and enforcement of certain foreign judgments 
etc. in civil and commercial matters, including by decree pursuant to those 
laws, the rules on jurisdiction of that agreement shall apply. However, this 
shall not be so in the case of actions brought before the jurisdiction referred 
to in Paragraph 246a and which are covered by the Convention of 10 May 
1952 on the arrest of sea-going ships. 
…’ 
D. The provisions of EU law 
1. Recitals 18 and 19 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 
(Brussels I Regulation) state as follows: 
‘(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. 
…’ 
2. Section 3 of that regulation, which concerns jurisdiction in matters relating 
to insurance, states, inter alia: 
‘Article 10 In matters relating to insurance, jurisdiction shall be determined 
by this Section, without prejudice to Article 6 and point 5 of Article 7. 
Article 11 An insurer domiciled in a Member State may be sued: 
(a) in the courts of the Member State in which he is domiciled; 
(b) in another Member State, in the case of actions brought by the 
policyholder, the insured or a beneficiary, in the courts for the place 
where the claimant is domiciled; or 
… 
A1 AND A2 
 
7 
Article 15 The provisions of this Section may be departed from only by an 
agreement: 
(1) which is entered into after the dispute has arisen; 
(2) which allows the policyholder, the insured or a beneficiary to bring 
proceedings in courts other than those indicated in this Section; 
(3) which is concluded between a policyholder and an insurer, both of 
whom are at the time of conclusion of the contract domiciled or 
habitually resident in the same Member State, and which has the effect 
of conferring jurisdiction on the courts of that Member State even if 
the harmful event were to occur abroad, provided that such an 
agreement is not contrary to the law of that Member State; 
(4) which is concluded with a policyholder who is not domiciled in a 
Member State, except in so far as the insurance is compulsory or 
relates to immovable property in a Member State; or 
(5) which relates to a contract of insurance in so far as it covers one or 
more of the risks set out in Article 16. 
Article 16 The following are the risks referred to in point 5 of 
Article 15: 
(1) any loss of or damage to: 
(a) seagoing ships, installations situated offshore or on the high seas, or 
aircraft, arising from perils which relate to their use for commercial 
purposes; 
(b) goods in transit other than passengers’ baggage where the transit 
consists of or includes carriage by such ships or aircraft; 
(2) any liability, other than for bodily injury to passengers or loss of or 
damage to their baggage: 
(a) arising out of the use or operation of ships, installations or aircraft as 
referred to in point 1(a) in so far as, in respect of the latter, the law of 
the Member State in which such aircraft are registered does not 
prohibit agreements on jurisdiction regarding insurance of such risks; 
(b) for loss or damage caused by goods in transit as described in 
point 1(b); 
(3) any financial loss connected with the use or operation of ships, 
installations or aircraft as referred to in point 1(a), in particular loss of 
freight or charter-hire; 
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(4) any risk or interest connected with any of those referred to in points 1 
to 3; 
(5) notwithstanding points 1 to 4, all “large risks” as defined in Directive 
2009/138/EC of the European Parliament and of the Council of 
25 November 2009 on the taking-up and pursuit of the business of 
Insurance and Reinsurance (Solvency II).’ 
3. Directive 2009/138/EC of the European Parliament and of the Council of 
25 November 2009 on the taking-up and pursuit of the business of Insurance 
and Reinsurance (Solvency II Directive) states as follows: 
‘Article 2 
[Scope] 
1. This Directive shall apply to direct life and non-life insurance 
undertakings which are established in the territory of a Member State or 
which wish to become established there. 
It shall also apply to reinsurance undertakings which conduct only 
reinsurance activities and which are established in the territory of a Member 
State or which wish to become established there with the exception of Title 
IV. 
2. In regard to non-life insurance, this Directive shall apply to activities 
of the classes set out in Part A of Annex I. 
… 
Article 13 
[Definitions] 
For the purposes of this Directive, the following definitions shall apply: 
… 
(27) “large risks” means: 
(a) risks classified under classes 4, 5, 6, 7, 11 and 12 in Part A of Annex I; 
(b) risks classified under classes 14 and 15 in Part A of Annex I, where the 
policy holder is engaged professionally in an industrial or commercial 
activity or in one of the liberal professions and the risks relate to such 
activity; 
A1 AND A2 
 
9 
(c) risks classified under classes 3, 8, 9, 10, 13 and 16 in Part A of 
Annex I in so far as the policy holder exceeds the limits of at least two 
of the following criteria: 
(i) a balance-sheet total of EUR 6.2 million;  
(ii) a net turnover, within the meaning of Fourth Council Directive 
78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on 
the annual accounts of certain types of companies of EUR 12.8 
million;  
(iii) an average number of 250 employees during the financial year. 
… 
ANNEX I  
CLASSES OF NON-LIFE INSURANCE  
A. Classification of risks according to classes of insurance 
… 
6. Ships (sea, lake and river and canal vessels) 
All damage to or loss of 
- river and canal vessels, 
- lake vessels, 
- sea vessels.’ 
4. As regards the origin and wording of Article 15(5), the following is stated in 
paragraphs 140 to 141 of the Schlosser Report on the Convention on the 
Accession of the Kingdom of Denmark, Ireland and the United Kingdom of 
Great Britain and Northern Ireland to the Brussels Convention (OJ 1979 
C 59, p. 71): 
‘140. The United Kingdom’s request for special rules for the insurance of 
large risks was probably the most difficult problem for the Working Party. 
The request was based on the realization that the concept of social protection 
underlying a restriction on the admissibility of provisions conferring 
jurisdiction in insurance matters is no longer justified where the 
policyholders are powerful undertakings. The problem was one of finding a 
suitable demarcation line. Discussions on the second Directive on insurance 
had already revealed the impossibility of taking as criteria abstract, general 
factors like company capital or turnover. The only solution was to examine 
which types of insurance contracts were in general concluded only by 
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policyholders who did not require social protection. On this basis, special 
treatment could not be conceded to industrial insurance as a whole. 
… 
The result of a consideration of all these matters is the solution which 
figures in the new paragraph (5) of Article 12, as supplemented by 
Article 12a: agreements on jurisdiction are in principle to be given special 
treatment in marine insurance and in some sectors of aviation insurance. 
… 
In order to avoid difficulties and differences of interpretation, a list had to be 
drawn up of the types of policy for which the admissibility of agreements on 
jurisdiction was to be extended. The idea of referring for this purpose to the 
list of classes of insurance appearing in the Annex to the First Council 
Directive of 24 July 1973 (73/239/EEC) proved inadequate. The 
classification used there took account of the requirements of State 
administration of insurance, and was not directed towards a fair balancing of 
private insurance interests. There was thus no alternative but to draw up a 
separate list for the purposes of the 1968 Convention. The following 
comments apply to the list and the classes of insurance not included in it. 
141. Article 12 a(1)(a) 
This provision applies only to hull insurance and not to liability insurance. 
The term “seagoing ships” means all vessels intended to travel on the sea. 
This includes not only ships in the traditional sense of the word but also 
hovercraft, hydrofoils, barges and lighters used at sea. It also covers floating 
apparatus which cannot move under its own power, e.g. oil exploration and 
extraction installations which are moved about on water. Installations firmly 
moored or to be moored on the seabed are in any event expressly included in 
the text of the provision. The provision also covers ships in the course of 
construction, but only in so far as the damage is the result of a maritime risk. 
This is damage caused by the fact that the ship is on the water and not 
therefore, damage which occurs in dry-dock or in the workshops of 
shipyards.’ 
5. Recitals 2, 4 and 7 of Council Decision of 4 December 2014 on the 
approval, on behalf of the European Union, of the Hague Convention of 
30 June 2005 on Choice of Court Agreements (2014/887/EU) state inter alia 
as follows: 
‘(2) The Convention on Choice of Court Agreements concluded on 30 June 
2005 under the auspices of the Hague Conference on Private International 
Law (‘the Convention’) makes a valuable contribution to promoting party 
autonomy in international commercial transactions and to increasing the 
predictability of judicial solutions in such transactions. In particular, the 
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Convention ensures the necessary legal certainty for the parties that their 
choice of court agreement will be respected and that a judgment given by the 
chosen court will be capable of recognition and enforcement in international 
cases. 
… 
(4) The Convention affects Union secondary legislation relating to 
jurisdiction based on the choice of the parties and to the recognition and 
enforcement of the resulting judgments, in particular Council Regulation 
(EC) No 44/2001, which is to be replaced as of 10 January 2015 by 
Regulation (EU) No 1215/2012 of the European Parliament and of the 
Council. 
… 
(7) The Union should, when approving the Convention, in addition make 
the declaration allowed under Article 21 excluding from the scope of the 
Convention insurance contracts in general, subject to certain well-defined 
exceptions. The objective of the declaration is to preserve the protective 
jurisdiction rules available to the policyholder, the insured party or a 
beneficiary in matters relating to insurance under Regulation (EC) 
No 44/2001. The exclusion should be limited to what is necessary to protect 
the interests of the weaker parties in insurance contracts. It should therefore 
not cover reinsurance contracts nor contracts relating to large risks. The 
Union should at the same time make a unilateral declaration stating that it 
may, at a later stage in light of the experience acquired in the application of 
the Convention, reassess the need to maintain its declaration under 
Article 21.’ 
6. The Unilateral Declaration by the European Union at the time of approval of 
the Hague Convention of 30 June 2005 on Choice of Court Agreements (‘the 
Convention’), made under Article 21 of the Convention, which forms 
Annex I to the Council Decision of 4 December 2014, states, inter alia: 
‘The objective of this declaration which excludes certain types of insurance 
contracts from the scope of the Convention is to protect certain 
policyholders, insured parties and beneficiaries who, according to internal 
EU law, receive special protection. 
1. The European Union declares, in accordance with Article 21 of the 
Convention, that it will not apply the Convention to insurance 
contracts, except as provided for in paragraph 2 below. 
2. The European Union will apply the Convention to insurance contracts 
in the following cases: 
… 
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(d) where the choice of court agreement relates to a contract of insurance 
which covers one or more of the following risks considered to be large 
risks: 
(i) any loss or damage arising from perils which relate to their use for 
commercial purposes, of, or to: 
(a) seagoing ships, installations situated offshore or on the high seas or 
river, canal and lake vessels.’ 
E. Case-law of the Court of Justice of the European Union 
1. In its judgment of 27 February 2020 in Case C-803/18, Balta v Grifs AG, the 
Court of Justice addressed the interpretation of Article 15(5) and 
Article 16(5) of the Brussels I Regulation in the context of proceedings 
between Balta, an insurance company established in Latvia, and Grifs AG, a 
security company registered in Lithuania, relating to the payment of an 
insurance claim. In that case, the referring court had specified that the 
insurance contract at issue in the main proceedings covered ‘large risks’, as 
referred to in Article 16(5) of the Brussels I Regulation. In paragraph 37 of 
that judgment, the Court of Justice noted that, in the judgment of 13 July 
2017 in Case C-368/16, Assens Havn, the Court of Justice stated that, in 
matters relating to insurance, the prorogation of jurisdiction remained 
strictly circumscribed by the aim of protecting the economically weaker 
party. 
2. The answer given by the Court of Justice was that Article 15(5) and 
Article 16(5) of the Brussels I Regulation must be interpreted as meaning 
that the jurisdiction clause in an insurance contract covering a ‘large risk’ 
within the meaning of the latter provision, concluded between the 
policyholder and the insurer, may not be relied on against the party insured 
under that contract, who is not an insurance professional, has not consented 
to that clause and is domiciled in a Member State other than that in which 
the policyholder and the insurer are domiciled. 
F. Submissions of the appellants: 
1. The appellants have claimed that Article 16(5) of the Brussels I Regulation 
covers ‘large risks’ only where the damage occurs while an insured vessel is 
being used for commercial purposes and the occurrence of the damage is 
connected to it. 
2. The appellants take the view that an interpretation of Article 16(5) of the 
Brussels I Regulation according to which ‘large risks’ covers every vessel, 
whatever its size and use, including pleasure craft used for private purposes, 
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goes against recitals 18 and 19 of the regulation and the aim to protect the 
weaker party in a contractual relationship. 
3. This interpretation is supported by the classification in Article 3(a), (b), (c), 
(f) and (j) of Directive (EU) 2016/1629 of the European Parliament and of 
the Council laying down technical requirements for inland waterway vessels 
and, similarly, the definitions set out in Paragraph 2(1) to (6) of 
Lovbekendtgørelse nr. 74 af 17. januar 2014 om skibes besætning 
(Consolidated Law No 74 of 17 January 2014 on the crewing of vessels), 
which is consistent with the international definitions of the various types of 
vessel and worded as follows: 
‘Paragraph 2 
For the purposes of this law, the following terms shall have the following 
meanings: 
(1) “Merchant vessel”: Any vessel other than a fishing vessel and 
recreational craft. 
(2) “Passenger vessel”: A vessel carrying more than 12 passengers. 
(3) “Cargo ship”: A merchant ship which is not a passenger vessel. 
(4) “Fishing vessel”: A vessel whose nationality is marked with an 
external identification number. 
(5) “Recreational craft”: A vessel which is not used for commercial 
purposes. In the event of doubt, the Danish Maritime Authority shall 
determine whether a vessel may be regarded as a recreational craft. 
(6) “Seagoing vessel”: A vessel used outside ports, rivers, lakes and 
similar sheltered waters.’ 
4. If it had been intended that recreational craft were to be covered by class 6 
under Article 16(5) of the Brussels I Regulation, they would have been 
specifically mentioned in the list in the annex under class 6. The description 
of class 6 in Annex I, Part A must naturally be understood as meaning that 
all damage to or loss of ‘river and canal vessels, lake vessels and sea 
vessels’ is a subset of ‘sea, lake and river and canal vessels.’ 
5. It is clear from recitals 4, 5 and 7 of Council Decision of 4 December 2014 
on the approval, on behalf of the European Union, of the Hague Convention 
of 30 June 2005 on Choice of Court Agreements, that the declaration was 
made having regard to Regulation 44/2001 (now the Brussels I Regulation) 
in order to preserve the protective jurisdiction rules available to the 
policyholder. As regards the Unilateral Declaration by the European Union 
at the time of approval of the Hague Convention of 30 June 2005 on Choice 
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of Court Agreements (‘the Convention’), made pursuant to Article 21 of the 
Convention, which forms Annex I to the Council Decision, it may be 
inferred from Article 1(2)(d) that large risks include only losses or damage 
to, inter alia, vessels relating to their use for commercial purposes. 
G. Respondent’s observations 
1. The respondent disputes the jurisdiction of the Court of Helsingør in the 
present case. 
2. It is clear from the insurance contract entered into that, in 2013, the parties 
concluded an agreement on, inter alia, jurisdiction and that, therefore, an 
action against the respondent must be brought in the Netherlands before ‘a 
competent court in the Netherlands’ (see clause 1.7.6 of the agreement). 
3. It is submitted primarily that the appellant – although he is a consumer – 
entered into a binding insurance contract and a binding choice of court 
agreement with the respondent, under which the court having jurisdiction is 
to be a court in the Netherlands. The agreed jurisdiction is valid 
notwithstanding the Hague Convention. 
4. Under Article 11(1)(b) of the Brussels I Regulation, the respondent may, in 
principle, be sued before the court of the appellant’s domicile, namely the 
Court of Helsingør. 
5. However, under Article 15 of that regulation the parties to an insurance 
contract may depart from the rule. This may be done by a choice of court 
agreement under Article 15(5), in so far as it covers one or more of the risks 
set out in Article 16. 
6. ‘Large risks’ is defined in Article 13(27) of Council Directive 73/239/EEC, 
as amended by Directive 88/357/EEC and Directive 90/618/EEC, which was 
most recently implemented in Danish law by Lov nr. 308 af 28. marts 2015 
om ændring af lov om finansiel virksomhed (Law No 308 of 28 March 2015 
amending the Law on financial undertakings). 
7. Under Article 13(27)(a) of that directive, risks classified inter alia under 
class 6 in Part A of Annex I come within the category of ‘large risks’. The 
list of classes of insurance also appears in Annex 7 to Lov nr. 1447 af 11. 
september 2020 om finansiel virksomhed (Law No 1447 of 11 September 
2020 on financial undertakings). It states as follows: 
‘… 
Insurance – damage 
Classification of risks according to classes of insurance. 
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… 
6. Ships (sea, lake and river and canal vessels): all damage to or loss of 
river and canal vessels, lake vessels and sea vessels. 
…’ 
8. The class in question therefore covers ships (sea, lake and river and canal 
vessels) in so far as relates to all damage to or loss of river and canal vessels, 
lake vessels and sea vessels. 
9. Reference may also be made to the Danish Financial Authority’s email of 
30 June 2016, which states inter alia: 
‘Class 6, which is set out in Annex I to the Solvency II Directive, was 
implemented in Danish law in the Law on financial undertakings, Annex 7, 
point 6. 
Class 6 is hull insurance and covers both commercial and private use of 
vessels for navigation. 
Hull insurance is insurance against damage caused to the insured property 
(in this case ships, boats and other vessels), including, in general, also in the 
event of the loss of that property as a result of theft etc.’ 
10. It is therefore argued that hull insurance such as that at issue is covered by 
the definition of ‘large risks’ set out in Article 16 of the Brussels I 
Regulation and, therefore, that under Article 15(5), in conjunction with 
Article 16(5), it is permitted to conclude a choice of court agreement such as 
that at issue in the main proceedings. 
11. It is disputed that the fact that the EU (and subsequently Denmark) declared 
that the EU does not intend to apply the Hague Convention to insurance 
contracts – except in the context of commercial situations – means that the 
choice of court agreement does not apply. It is thus argued that the Brussels 
I Regulation is applicable in the present case and the abovementioned 
declaration does not change this. 
12. It is argued that that declaration merely means that the Hague Convention 
does not apply, in those cases, to the specific context of the European Union. 
In such situations it is the European Union’s own rules that apply. 
13. The declaration must therefore be understood as meaning that the Hague 
Convention does not give private policyholders adequate protection under 
EU rules. Therefore, private policyholders can rely on the EU’s own rules, 
including the Brussels I Regulation. 
REQUEST FOR A PRELIMINARY RULING OF 27. 4. 2021 – CASE C-352/21 
 
16  
14. It follows from recital 7 of the Council Decision of 4 December 2014 
(2014/887/EU) that the Hague Convention does not apply to insurance 
proceedings between two parties, at least one of whom is not an economic 
operator, where both are covered by EU law. In such proceedings, the 
Brussels I Regulation applies. 
H. The High Court of Eastern Denmark’s observations 
1. The High Court of Eastern Denmark finds that, in the light of the wording of 
Article 16(1)(a) and (5) of the Brussels I Regulation, in conjunction with 
what is stated regarding large risks under class 6 in Part A of Annex I to 
Directive 2009/138/EC of the European Parliament and of the Council of 
25 November 2009 on the taking-up and pursuit of the business of Insurance 
and Reinsurance (Solvency II Directive), and in conjunction with the 
underlying purpose of the rules on choice of court agreements, there is doubt 
as to whether Article 16(5) of the Brussels I Regulation must be interpreted 
as meaning that hull insurance for pleasure craft that are not used for 
commercial purposes is covered by that provision. 
2. As clarification on this issue must be presumed to be decisive for the 
resolution of this case, and as the existing doubt concerns the interpretation 
of a rule of EU law, the High Court of Eastern Denmark finds it necessary to 
stay proceedings and refer the question to the Court of Justice of the 
European Union. 
It is hereby ordered: 
The High Court of Eastern Denmark requests the Court of Justice of the European 
Union to answer the following question: 
Must Article 15(5) of the Brussels I Regulation, in conjunction with Article 16(5) 
thereof, be interpreted as meaning that hull insurance for pleasure craft that are not 
used for commercial purposes falls within the exception laid down in Article 16(5) 
of that regulation, and is, therefore, an insurance contract which contains a choice 
of court agreement departing from the rule laid down in Article 11 of that 
regulation valid under Article 15(5) of that regulation?