Cour de cassation; 2023-09-13; Com., 13 septembre 2023, pourvoi n° 22-16.884
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2023:CO00550
Date: 2023-09-13
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82023FR0913(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Cour de Cassation (hereinafter ‘the Supreme Court’), was related to the applicability of the new Lugano Convention (1) to the United Kingdom during the transition period before its withdrawal from the European Union.
The dispute arose out of a goods transport accident.
The plaintiffs challenged the validity of a clause conferring jurisdiction on the High Court of Justice of London (hereinafter ‘the Court of First Instance in London’).
The case was examined by the tribunal de commerce de Paris (hereinafter ‘the Court of First Instance in Paris’), then by the cour d’appel de Paris (hereinafter ‘the Court of Appeal’), and then by the Supreme Court.
Before the Supreme Court, the plaintiffs first claimed that the Court of Appeal had distorted written evidence. The Court of Appeal had held that the booking reservation pertaining to the transport at issue included a URL referring to a webpage where the clause conferring jurisdiction appeared; the plaintiffs argued that the URL in the appeal judgment was not the actual URL in the booking reservation, which amounted to distortion of written evidence. The Supreme Court agreed with them.
The plaintiffs also alleged infringements on EU law.
They first claimed that Article 23 of the new Lugano Convention was inapplicable because the United Kingdom should now be considered a third State to that convention, even regarding the transition period before its withdrawal from the European Union. They argued that the convention was not mentioned in Articles 67 et seq. of the Agreement on the withdrawal of the United Kingdom from the European Union (hereinafter ‘the Agreement’) (2), which enumerates the legal instruments that remained applicable to the United Kingdom during that period.
The Supreme Court dismissed this argument on the grounds of Article 127 of the Agreement, which provides: ‘Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period’.
Moreover, the Court of Appeal ruled that one of the reasons to consider the agreement conferring jurisdiction valid was the existence of a ‘regular business relationship’ between the parties and a ‘recurring flow on [the transport line in question], under the same terms and conditions’. The Court of Appeal relied there on Article 23(1) of the new Lugano Convention, which allows that such a convention may be ‘in a form which accords with practices which the parties have established between themselves’. The plaintiffs argued that this was not evidence of practices related to such an agreement conferring jurisdiction, and the Supreme Court agreed with them.
Finally, the Court of Appeal had held that ‘it was not disputed that [the clause conferring jurisdiction at issue] accorded with a usage widely known and regularly observed in the specific sector of international transport of merchandise’. The Court of Appeal was relying once again on Article 23(1) of the new Lugano Convention. The plaintiffs pointed out that they did dispute the existence of such a usage, and they claimed that the Court of Appeal infringed on Article 4 of the code de procédure civile (3), which forbids courts from misrepresenting the subject-matter of the proceedings. Once again, the Supreme Court agreed with them.
On those grounds, the Supreme Court set aside the judgment of the Court of Appeal.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.
(3) Code de procédure civile (Code of Civil Procedure).