Opinion of the Advocate General — ECLI:EU:C:2012:554
Date: 2012-09-06
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary – Judgment of the Court (Third Chamber), 15 November 2012 1. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Recognition and enforcement of judgments – Definition of ‘judgment’ – Decision to decline jurisdiction on the basis of a jurisdiction clause – Included (Council Regulation 44/2001, Recitals 2, 6, 16 and 17; Art. 32) 2. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Recognition and enforcement of judgments – Decision to decline jurisdiction on the basis of a jurisdiction clause – Recognition of both the operative part and the grounds of the decision (Council Regulation No44/2001, Arts 32 and 33) 1. Article 32 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it also covers a judgment by which the court of a Member State declines jurisdiction on the basis of a jurisdiction clause, irrespective of how that judgment is categorised under the law of another Member State. The need for such an interpretation of the concept of ‘judgment’, which must be given independently, is supported, on the one hand, by the objectives of Regulation No 44/2001, as set out in recitals 2 and 6 in the preamble thereto, which refer respectively to the simplification of the formalities for the recognition and enforcement of judgments and the free movement thereof, and, on the other hand, the principle of mutual trust between courts which, according to recitals 16 and 17, underpins the system introduced by Regulation No 44/2001. That mutual trust would be undermined if a court of a Member State could refuse to recognise a judgment by which a court of another Member State declined jurisdiction on the basis of a jurisdiction clause. To allow a court of a Member State to refuse to recognise such a judgment would run counter to the system introduced by Regulation No 44/2001, because such a refusal would be liable to compromise the effective operation of the rules set out in Chapter II of that regulation on the distribution of jurisdiction as between the courts of the Member States. (see paras 25-29, 32, operative part 1) 2. Articles 32 and 33 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the court before which recognition is sought of a judgment by which a court of another Member State has declined jurisdiction on the basis of a jurisdiction clause is bound by the finding – made in the grounds of a judgment, which has since become final, declaring the action inadmissible – regarding the validity of that clause. To allow a court of the Member State in which recognition is sought to disregard, as devoid of effect, the jurisdiction clause which a court of the Member State of origin has held to be valid would run counter to that prohibition of a review as to the merits, provided for under Article 36 of Regulation No 44/2001, particularly in circumstances where the latter might well have ruled, but for that clause, that it had jurisdiction. In the latter situation, such a finding on the part of the court of the Member State in which recognition is sought would call into question not only the intermediate finding made by the court of the Member State of origin as to the validity of the jurisdiction clause, but also the very decision of that court to decline its own jurisdiction. Moreover, the notion of res judicata under European Union law, which is relevant for determining the effects produced by a judgment, does not apply only to the operative part of the judgment in question, but also to the ratio decidendi of that judgment, which provides the necessary underpinning for the operative part and is inseparable from it. (see paras 38, 40, 43, operative part 2)