Judgment;Summary — ECLI:EU:C:2023:675
Date: 2023-09-14
Language of the case: Czech
Court formation: Seventh Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Czechia

Translation C-393/22 – 1 
Case C-393/22 
Request for a preliminary ruling  
Date lodged:  
15 June 2022 
Referring court:  
Nejvyšší soud České republiky (Czech Republic) 
Date of decision to refer:  
5 May 2022 
Applicant:  
EXTÉRIA, s. r. o. 
Defendant:  
Spravíme, s. r. o. 
 
[…] 
ORDER 
The Nejvyšší soud (the Supreme Court, Czech Republic) has ruled […] in the case 
of the applicant EXTÉRIA, s. r. o., […], having its registered office at [Czech 
Republic] […] v the defendant Spravíme, s. r. o., […], having its registered office 
at […] Slovak Republic, […] with respect to an application for the issuance of an 
European order for payment, conducted before the Okresní soud v Ostravě 
(Ostrava District Court, Czech Republic) […], concerning the defendant’s appeal 
on a point of law against the order of the Krajský soud v Ostravě (Ostrava 
Regional Court, Czech Republic) of 16 February 2021, ref. no. 8 Co 40/2021-52, 
as follows: 
I. Pursuant to Article 267 of the Treaty on the Functioning of the 
European Union, the Supreme Court hereby submits  the following 
question to the Court of Justice of the European Union for a 
preliminary ruling: 
Must Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
EN 
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recognition and enforcement of judgments in civil and commercial matters 
be interpreted as meaning that the concept ‘contract for the provision of 
services’ also includes a contract to enter into a future contract (pactum de 
contrahendo), in which the parties undertook to enter into a future contract 
that would be a contract for the provision of services, within the meaning of 
that provision? 
[…] 
Grounds :  
I. Facts of the case and original proceedings 
1 The applicant is a company based in Ostrava, Czech Republic, which provides 
consultancy in the field of occupational health and safety. The defendant is a 
company based in Ivanovice, Slovakia.  
2 On 28 June 2018, the applicant and the defendant entered into a contract to enter 
into a future contract (‘Future Master Franchise Agreement’), pactum de 
contrahendo. In that contract, the parties primarily committed themselves to a 
future legal act – the conclusion of a further contract – and agreed on certain 
aspects of that further contract. The subject of the future contract was for the 
applicant to grant the right to operate and manage the defendant’s franchise 
branches in the Slovak Republic. 
3 In addition to the obligation to enter into a future contract, Article III(A)(3) of the 
contract set out the obligation for the defendant to pay an advance payment in the 
total amount of EUR 20,400 + VAT. As stipulated in the provision in question, 
the advance payment served to secure the obligation of the obliged party (the 
defendant) to enter into a master franchise agreement with the entitled party (the 
applicant) in the future, within the agreed period, and to keep confidential all 
information obtained from the entitled party in connection with its franchise 
concept. The advance payment was to be paid by the defendant within 10 days of 
the signing of the contract to enter into a future contract, to the applicant’s account 
at Raiffeissenbank, a. s., in the Czech Republic. In Article III(B)(3), the parties 
agreed that, should the obliged party fail to enter into a master franchise 
agreement for the Slovak Republic with the entitled party, and should it fail to do 
so even within a grace period subsequently granted by the entitled party, it would 
pay to the entitled party a contractual penalty of 100% of the advance payment. 
The possibility for the entitled party (the applicant) to withdraw from the contract 
in the event of non-payment of the agreed advance by the obliged party (the 
defendant) within the specified period was set out in Article IV(2). That same 
provision also provided for the right of the entitled party to withdraw from the 
contract in the event of a breach of the other contractual conditions. Furthermore, 
it was also agreed that, pursuant to Article V(3) of the contract, legal relations 
arising out of or in connection with the contract would be governed, unless 
otherwise provided for in the contract, by the laws of the Czech Republic. No 
EXTÉRIA 
 
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agreement on jurisdiction within the meaning of Article 25 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 (hereinafter referred to as the ‘Brussels I bis Regulation’) 
had been agreed between the parties. 
4 According to the applicant, the defendant breached its obligation to pay the 
advance payment. Consequently, the applicant exercised its right to withdraw 
from the contract and sought payment of EUR 24,684 plus interest and costs from 
the defendant, as a contractual penalty, by way of a European order for payment 
before the Czech courts. 
5 In its first action in the case, the defendant objected that the courts of the Czech 
Republic lacked jurisdiction, in its submission of 7 August 2020. 
6 By an order of 17 December 2020, the Ostrava District Court, as the court of first 
instance […] rejected the objection of lack of local jurisdiction and found that the 
Ostrava District Court did have jurisdiction to hear and decide the case. It based 
its jurisdiction on Article 7(1)(a) of the Brussels I bis Regulation, according to 
which a person domiciled in a Member State may be sued in another Member 
State if the subject of the dispute relates to a contract or a claim arising out of a 
contract, in the courts of the place where the obligation in question was or was to 
be performed. The court of first instance concluded that, in the light of the 
findings made, the applicant seeks performance which was to have been provided, 
within the meaning of that provision of the Brussels I bis Regulation, to the 
applicant based in the Czech Republic, in the circuit of the district court 
concerned. Furthermore, it stated that it had not been alleged or established that 
jurisdiction had been agreed between the parties, within the meaning of Article 25 
of the Brussels I bis Regulation or otherwise established. 
7 In its decision of 16 February 2021, the Ostrava Regional Court, as the first-
instance appeal court […], upheld the decision of the court of first instance, 
stating that the court of first instance had correctly applied the Brussels I bis 
Regulation and correctly concluded that both the international jurisdiction of the 
courts of the Czech Republic and the local jurisdiction of the Ostrava District 
Court were established, since the subject of the action was performance based on a 
breach of contract to enter into a future master franchise agreement. As is apparent 
from the pleas stated in the action, according to Article III(A)(3) of the contract in 
question, the defendant was to have paid the agreed amount, at issue in the action, 
which it failed to do, and the applicant thus withdrew from the contract. Pursuant 
to Article III(B)(3), the applicant was entitled to a contractual penalty of 
EUR 24,684. Given that the subject of the action is a claim to the payment of a 
contractual penalty, due to the defendant’s failure to comply with the conditions 
of the contract on the conclusion of a future master franchise agreement, it is 
evident that the subject of performance is not manufacture and delivery of goods 
and, hence, the place of performance cannot be applied, i.e., the place of the 
manufacture and delivery of goods, and it is therefore not a claim for the payment 
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of a contractual penalty related to the manufacture and delivery of goods. 
Article 7(1)(b) of the Brussels I bis Regulation will therefore not apply, as argued 
by the defendant in its first-instance appeal. Furthermore, according to the first-
instance appeal court, the defendant’s objection cannot stand, to the effect that the 
performance of the future contract was to take place in Slovakia, which, according 
to the defendant, is based on the provision on contractual territory, which shows 
that the defendant was to use the territory of the Slovak Republic for the 
performance of the subject of the future contract. According to the first-instance 
appeal court, the decisive issue is that the contract for the conclusion of the future 
master franchise agreement itself was breached and that the advance payment 
relating to the one-off entry charge was to have been paid within 10 days of the 
signing of the contract to the applicant's account held at Raiffeissenbank, a.s. As 
the applicant correctly argues, according to the first-instance appeal court under 
Czech law, namely under Paragraph 1955 of Zákon č. 89/2012 Sb., občanský 
zákoník (Law 89/2012, the Civil Code), the place of the performance of a 
pecuniary obligation shall be the place of the registered office of the creditor, if 
the contract is governed by the laws of the Czech Republic. Hence, according to 
the court of appeal, the place of performance is the creditor’s registered office, 
i.e., the registered office of the applicant, which is in Ostrava, Czech Republic. 
Consequently, pursuant to Article 7(1)(a) of the Brussels I bis Regulation, the 
court having local jurisdiction is the court in Ostrava, given that the applicant 
chose the Ostrava District Court to lodge its action.  
8 The defendant filed an appeal on a point of law to the Supreme Court challenging 
the decision. According to its claims, the nature of the claim for payment of a 
contractual penalty in relation to Article 7(1) of the Brussels I bis Regulation was 
assessed incorrectly at an earlier stage of the proceedings, which therefore led to 
an erroneous conclusion as to the jurisdiction of the courts to rule on the claim to 
the payment of the penalty. According to the defendant, the Court of Appeal 
should have held that the contractual penalty, as a claim based on a contract, must 
be governed by the main contract, which in this case is the contract to enter into a 
future contract. The obligation whose fulfilment was to be secured by the 
contractual penalty was to be a non-pecuniary debt and the place of its fulfilment 
was to be determined according to national law, which, according to its argument, 
established the jurisdiction of the Slovak courts in the present case.  
9 In its response to the appeal on a point of law, the applicant stated that it agreed 
with the conclusions of the national courts and, furthermore, pointed out that the 
primary breach of contract was the non-payment of the agreed advance payment. 
The breach of that obligation gave rise to the right to withdraw from the contract 
and, at the same time, the claim to the payment of a contractual penalty. The 
primary obligation secured was therefore, according to the applicant, the failure to 
pay the advance payment.  
II. Applicable EU legislation  
EXTÉRIA 
 
5 
10 The following provisions of the Brussels I bis Regulation are the main provisions 
relevant for an assessment of the preliminary reference: Article 7(1)(a), 
Article 7(1)(b), and Article 7(1)(c). 
III. Applicable national legislation  
11 Paragraphs 1954 and 1955 of Law 89/2012, the Civil Code, may be relevant for 
the assessment of the preliminary reference. 
Paragraph 1954 
A proper discharge requires that the debt be discharged at the place determined. If 
the place of performance cannot be ascertained from the contract, the nature of the 
obligation, or the purpose of performance, the performance shall take place at a 
place provided for by statute. 
Paragraph 1955 
(1) A debtor performs a non-pecuniary debt at the place of his residence or 
registered office. A debtor shall perform a pecuniary debt at the place of residence 
or registered office of the creditor. 
(2) If an obligation was created in the operation of an enterprise, the debt is 
performed at the place of the enterprise. This applies mutatis mutandis where the 
obligation was created in the operation of an establishment. 
IV. Grounds for the preliminary reference and position of the Supreme 
Court  
12 In this case, it is necessary to answer the question of whether courts of the Czech 
Republic have international jurisdiction. Hence, the Brussels I bis Regulation must 
be applied, since the dispute has an international element in civil and commercial 
matters and the proceedings were initiated after 10 January 2015. 
13 In this context, it is necessary to assess whether the jurisdiction of the Czech 
courts can be established on the basis of special jurisdiction under Article 7(1) of 
the Brussels I bis Regulation, as the action is directed against a defendant with its 
registered office in a Member State other than the State of the forum.  
14 Pursuant to Article 7(1)(a) of the Brussels I bis Regulation, in matters relating to a 
contract, a person domiciled in a Member State may be sued in another Member 
State in the courts for the place of performance of the obligation in question. 
Pursuant to Article 7(1)(b) of the Brussels I bis Regulation, in the case of the sale 
of goods, the place of the performance of the obligation is the place in a Member 
State where, under the contract, the goods were delivered or should have been 
delivered, and in the case of the provision of services, the place where, under the 
contract, the services were provided or should have been provided. As follows 
from Article 7(1)(c) of the Brussels I bis Regulation, if point (b) does not apply, 
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then point (a) applies. Hence, the application of (a) constitutes a residual category 
that may be applied to a case only if the application of (b) is excluded. 
15 The Supreme Court is aware of established case-law of the Court of Justice of the 
European Union (‘the CJEU’) in the context of the autonomous interpretation of 
the term ‘matters relating to a contract’, which is a concept common to 
Article 7(1)(a) and (b) of the Brussels I bis Regulation. According to that case-
law, the essential characteristic of a contract is the existence of an obligation 
freely assumed by one party towards another (comp. CJEU judgment of 17 June 
1992, Jakob Handte & Co. GmbH v Traitements Mécano-chimiques des Surfaces 
SA, in Case C-26/91, paragraph 15). Furthermore, it understands that the concept 
includes all obligations arising under a contract, where non-performance of that 
contract is relied upon to support a claimant’s action, (comp. CJEU judgment of 
15 June 2017, Saale Kareda v Stefan Benkö, in Case C-249/16, paragraph 30). A 
contract to enter into a future contract is itself, as in the present case, a binding 
instrument concluded voluntarily, and the terms contained therein represent the 
result of negotiations between the parties. According to the applicant, the dispute 
concerning the contractual penalty is based on the contract to enter into a future 
contract in question, since it was to have arisen as a result of the failure of the 
obliged party to pay down an advance, in breach of its obligations arising from the 
contract. Hence the Supreme Court considers that the right to the contractual 
penalty which is the issue in the present case is a claim ‘relating to a contract’ 
within the meaning Article 7(1) of the Brussels I bis Regulation. 
16 In this situation, it is necessary to assess whether subparagraph (b) or (a) of the 
provision in question applies to this case. Given that the essential characteristics 
of a contract for the sale of goods include both the transfer of title and the 
exchange of goods for money, the present case does not involve a claim for the 
payment of a contractual penalty related to the manufacture and delivery of goods, 
within the meaning of the first bullet point of Article 7(1)(b) of the Brussels I bis 
Regulation; however, in order for the application of subparagraph (b) to be 
excluded and subparagraph (a) to apply, it is also necessary to assess whether the 
case does not involve a claim relating to the ‘provision of services’, within the 
meaning of the second bullet point of that provision. The assessment of this 
question is crucial, for if the case were to be assessed as the ‘provision of 
services’, the courts of the place where the services were to be provided under the 
contract would have jurisdiction over all related claims. If, however, the residual 
category under Article 7(1)(a) of the Brussels I bis Regulation were to be applied 
and the conditions for the application of the same provision were met, 
international and local jurisdiction would in principle be assessed separately for 
each obligation (comp. CJEU judgment of 6 October 1976, Industrie Tessili 
Italiana Como v Dunlop AG, in Case [C-]12/76). 
17 In the present case, the parties negotiated a contract to enter into a future contract, 
which they called the ‘Future Master Franchise Agreement’. The question 
therefore arises for the Supreme Court as to how to characterise, for the purpose 
of establishing international jurisdiction under Article 7(1) of the Brussels I bis 
EXTÉRIA 
 
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Regulation, a contract to enter into a future contract in which the parties undertook 
to enter into a contract in the future. Two different solutions are possible. In the 
view of the Supreme Court, the CJEU has not yet provided clear guidance in this 
respect. In particular, one option is to consider whether the contract on a future 
contract as such is a contract for the provision of services. If not, the international 
jurisdiction of the courts could be established only on the basis of Article 7(1)(a) 
of the Brussels I bis Regulation. The second possible solution is to determine 
international jurisdiction for claims under the contract to enter into a future 
contract on the basis of the nature of the contract that is to be concluded in the 
future by the parties. It is the conclusion of the future contract that is the very 
essence of the contract to enter into a future contract. That would mean that, if the 
envisaged future contract were a contract for the purchase of goods or a contract 
for the provision of services, it would be appropriate to determine the international 
jurisdiction of courts in accordance with Article 7(1)(b) of the Brussels I bis 
Regulation on the basis of the place where the goods or services were to be 
provided in the future under the contract envisaged. 
18 With a view to existing CJEU case-law, the Supreme Court leans towards the 
conclusion that the conclusion of the contract to enter into a future contract does 
not in itself constitute the provision of services within the autonomous meaning of 
EU law. In the opinion of the Supreme Court, the contract to enter into a future 
contract does not meet the requirement of the active performance of an activity for 
consideration for the benefit of the other party, as required by Article 7(1)(b) of 
the Brussels I bis Regulation (comp. CJEU judgment of 23 April 2009, Falco 
Privatstiftung and Thomas Rabitsch v Gisele Weller-Lindhorst, in Case C-533/07; 
of 14 July 2016, Granarolo SpA v Ambrosi Emmi France SA, in Case C-196/15; 
of 19 December 2013, Corman-Collins SA v La Maison du Whisky SA, in Case 
C-9/12; and of 25 March 2021, Obala i lučice d.o.o. v NLB Leasing d.o.o., in Case 
C-307/19).  
19 The contract to enter into a future contract contains several general elements that 
the parties have agreed will be incorporated in the future contract, including the 
generally defined subject of the future contract; however, the purpose of the 
contract is to conclude a further contract upon written invitation, and a failure to 
conclude the envisaged contract is sanctioned in the present case by a contractual 
penalty in the amount of the advance payment. This, in the Supreme Court’s view, 
cannot be regarded as the active performance of an activity for the benefit of 
another party, since the conclusion of the future contract constitutes merely a legal 
act, not an actual active activity provided as a service to the other party. It is 
precisely in this fact that the Supreme Court sees the difference, for example, from 
a commercial agency contract (comp. CJEU judgment of 11 March 2010, Wood 
Floor Solutions Andreas Domberger GmbH v Silva Trade SA, in Case C-19/09), 
which also involves the conclusion of contracts, but, at the same, other factual 
activities take place on its basis, such as contacting other entities or presenting 
products or services.  
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20 On the basis of the case-law available, the Supreme Court also holds that the 
requirement of consideration is not fulfilled in the case of the contract to enter into 
a future contract. Neither the obliged party nor the beneficiary is entitled to 
consideration under the contract to enter into a future contract, even in its broadest 
sense. The parties did agree on the future amount of the entry charge or recurring 
monthly fees, but the obligation to pay them arises only if and when the parties 
enter into the envisaged future contract. Thus, neither of the parties was entitled to 
remuneration under the contract which they actually concluded and from which 
the dispute originated, but merely undertook that, once they enter into a contract 
for services, the remuneration would be of a specific amount. Although in Article 
III(A)(3), under the heading ‘Advance Payment’, the contract to enter into a future 
contract does refer to an ‘advance and advance payment’, that is an advance for a 
future entry fee and also covers the amount of the contractual penalty. The 
Supreme Court is of the opinion that neither party benefits economically from this 
payment ipso facto, since its primary purpose is to secure future performance of 
the obligation, and it does not serve as a payment and a certain economic 
advantage in the sense of consideration. Under the terms of a contract such as the 
one at issue in this case, it therefore appears that the advance payment in question 
does not constitute an economic value which can be regarded as consideration in 
the sense described and that the obligation to pay the advance payment is 
primarily a means of securing the performance of a contractual obligation in the 
future (comp. CJEU judgment of 14 July 2016, Granarolo SpA v Ambrosi Emmi 
France SA, in Case C-196/15). 
21 With a view to the above, the Supreme Court holds that Article 7(1)(b) of the 
Brussels I bis Regulation cannot be applied to a contract to enter into a future 
contract. The residual category set out in Article 7(1)(a) of the Brussels I bis 
Regulation must therefore be applied. The application of the provision in question 
has a significant impact on the assessment of the place of performance, as under 
subparagraph (a), the principle of characteristic performance is not to be used, 
and, in essence, each obligation has its own place of performance. With a view to 
the CJEU judgment of 23 April 2009 Falco Privatstiftung and Thomas Rabitsch v 
Gisele Weller-Lindhorst, in Case C-533/07, paragraphs 54-55, it can be noted that 
only in the case of contracts for the sale of goods, and contracts for the provision 
of services, did the Community legislator not intend to base the Brussels 
Convention on a specific, more narrowly defined obligation at issue (as the 
linguistic interpretation of the provision suggests, after all), but on an obligation 
which is characteristic of those contracts. At the same time, it intended to define 
autonomously in contractual matters the place of performance as a connecting 
factor for determining the competent court. As was found in connection with 
Article 5(1) of the Brussels Convention in the CJEU judgment of 6 October 1976, 
A. De Bloos, SPRL v Société en commandite par actions Bouyer, in Case 14/76, 
‘the obligation in question’ corresponds to the right arising from an agreement 
which the applicant seeks to enforce in its action, and which constitutes the basis 
of its action. If, for example, an applicant sues for damages, the decisive 
contractual obligation is that whose breach led to the occurrence of the damage. 
Furthermore, where the defendant alleges a breach of duty by the applicant, but 
EXTÉRIA 
 
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the claim is for payment, the ‘obligation in question’ will be the obligation to pay, 
not the obligation whose performance the defendant disputes. The place of 
performance of that obligation is then no longer an autonomous concept of that 
obligation (comp. CJEU Judgment of 6 October 1976, Industrie Tessili Italiana 
Como v Dunlop AG, in Case 12/76; and of 28 September 1999, GIE Groupe 
Concorde and Others v Capitaine commandant le navire “Suhadiwarno Panjan” 
and Others, in Case C-440/97; and others). 
22 In the opinion of the Supreme Court, a different interpretation may be admitted, 
and hence, the conclusion that the contract to enter into a future contract is a 
contract for the provision of services may be reached only if that conclusion is 
derived from the nature of the contract whose conclusion is envisaged. The Master 
Franchise Agreement itself could meet the requirements of the provision of 
services, both in terms of active performance of an activity and in terms of 
consideration, and therefore, the place of the provision of the services would be 
based on the future contract. The case-law of the CJEU to date does not, however, 
suggest such a possibility. 
23 The CJEU has not yet explicitly addressed the question of whether a pactum de 
contrahendo is a contract for services, if it envisages the conclusion of a contract 
for services, or whether it is necessary for the contract to be designated as such 
with a view to the intended outcome of the entire legal relationship. The contract 
to enter into a future contract in itself is a binding instrument and its formation, 
termination, and obligations arising therefrom are largely independent of the 
envisaged future contract. The contract concluded between the parties does set out 
in general some of the elements of the future contract, but it contains its own 
primary obligation or separate penalty mechanism and its own termination 
options. The termination options of the contract to enter into a future contract (by 
performance, by agreement of the parties, by withdrawal in the event of breach of 
the obligations arising from the contract) also imply that the conclusion of the 
future contract is not even a necessary consequence of the contract to enter into a 
future contract. Such an interpretation of Article 7(1) of the Brussels I bis 
Regulation, which would allow the nature of the intended future contract itself to 
be taken into account when qualifying the contract to enter into a future contract 
as a contract for the provision of services, is therefore not unequivocal. 
24 Given the absence of relevant CJEU case-law on this matter, there is, in the 
Supreme Court’s view, a reasonable doubt as to the correctness of the 
interpretation of EU law. In a situation when the application of Article 7(1)(b) of 
the Brussels I bis Regulation must be ruled out before the application of 
Article 7(1)(a) of the Regulation to the matter at hand, the Supreme Court 
therefore considers it necessary to discontinue the proceedings and to refer the 
question to the CJEU for a preliminary ruling. 
25 It is also clear from the above that the application of the different provisions has a 
fundamental impact on the present case, as it may lead to a different conclusion on 
the jurisdiction of the Czech courts. At the same time, the establishment of special 
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jurisdiction is a sort of exception to the general rule, which partly justifies a 
possible more restrictive interpretation by the CJEU, for the purposes of 
predictability, legal certainty, and guaranteeing a close connection between the 
forum and the dispute. Taking into account the wide use of contracts to enter into 
a future contract, pactum de contrahendo, in international trade, the uniform 
application of EU law becomes increasingly important, and a uniform 
interpretation of a given provision across Member States cannot be fully ensured 
without an interpretation by the CJEU.  
26 In view of the above, the CILFIT criteria (comp. CJEU judgment of 6 October 
1982, Srl CILFIT and Lanificio di Gavardo SpA v Ministero della sanità, in Case 
283/81) were not met in the present case. Therefore, given the specific nature of a 
contract to enter into a future contract, as a binding pre-contractual instrument, 
and its distinction from contracts in the CJEU’s case-law and the importance of 
the instrument in question in international trade between Member States, the 
Supreme Court, as the court whose decision cannot be appealed within the 
meaning of Article 267 of the Treaty on the Functioning of the European Union, 
deems it necessary to refer this question to the CJEU. 
[…]