Opinion of the Advocate General — ECLI:EU:C:2026:344
Date: 2026-04-23
Language of the case: German

Translation C-799/24 – 1 
Case C-799/24 
Request for a preliminary ruling 
Date lodged: 
20 November 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
24 October 2024 
Defendant and appellant on a point of law: 
Babcock Montajes S.A. 
Applicant and respondent in the appeal on a point of law: 
Kanadevia Inova Steinmüller GmbH 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
of 
24 October 2024 
in the case of 
Babcock Montajes S.A., […] Erandio, Biscay (Spain), 
Defendant and 
appellant on a point of law, 
[…] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24 .10. 2024 – CASE C-799/24 
 
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Kanadevia Inova Steinmüller GmbH, […] Gummersbach, 
Applicant and 
respondent in the appeal on a point of law 
[…] 
Further to the hearing on 24 October 2024 […], the Seventh Civil Chamber of the 
Federal Court of Justice makes the following order: 
I. The proceedings are stayed. 
II. The following questions are referred to the Court of Justice of the 
European Union for interpretation of EU law pursuant to point (a) of the first 
paragraph of Article 267 of the Treaty on the Functioning of the European 
Union: 
1. Is the term ‘judgment’ in Article 36(1) 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 (‘the Brussels I Regulation’) to 
be interpreted to the effect that the court of a Member State on which an 
agreement as referred to in Article 25 of the Brussels I Regulation confers 
exclusive jurisdiction (Article 31(2) of the Brussels I Regulation) must 
recognise a judgment by which a non-designated court of a Member State 
finds that the courts of that Member State have international jurisdiction if 
the judgment in question is an interim judgment, in other words, is not a 
decision which terminates a dispute? 
2. If the answer to Question 1 is, in principle, in the affirmative: 
Does recognition of the interim judgment also depend on whether the 
interim judgment affirming the international jurisdiction of the courts of the 
Member State is binding on the non-designated court itself and/or whether 
the affirmation of international jurisdiction may be varied in the context of 
an appeal? 
Grounds: 
I. 
1 The applicant, a limited liability company (GmbH) under German law established 
in Germany, and the defendant, a joint-stock company (S.A.) under Spanish law 
established in Spain, both specialise in the installation of power generation plants. 
The applicant received an order from a Spanish company for the turnkey 
construction of a waste-treatment plant in San Sebastian, Spain. 
BABCOCK MONTAJES 
 
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2 On 18 September 2017, the applicant concluded a contract with the defendant in 
which the defendant undertook to install two incineration boilers for the waste-
treatment plant in return for remuneration. Cologne was designated by the parties 
as the place of jurisdiction. In accordance with a contractual agreement, the 
defendant provided the applicant with a first demand bank guarantee amounting to 
10 per cent of the remuneration as security for the performance of the contract. 
3 Delays in the works occurred in the subsequent period. On 8 August 2018, at a 
meeting in Germany, the parties concluded an amending agreement under which 
the defendant was no longer required to perform part of the original contract and 
the remuneration was reduced. 
4 In a letter dated 18 February 2019, the applicant made a claim against the 
defendant for additional costs relating to the performance originally due from the 
defendant and asked it to pay an amount specified in an itemised invoice. After 
the defendant had stated several times in its correspondence that it saw no basis 
for the claims, the applicant finally invoked the bank guarantee on 28 March 
2019. The bank paid out the full amount of the guarantee to the applicant. 
5 In response to the guarantee being invoked, the defendant in the present case 
brought an action against the applicant in the present case before the Juzgado de 
primera instancia de Madrid (Court of First Instance in Madrid, Spain). Besides 
damages against the applicant, the defendant also claimed payment of the amount 
of the guarantee, having reimbursed the bank for the amount of the guarantee paid 
to the applicant. It based its claim, among other arguments, on the assertion that 
the applicant’s supposed claims to damages did not exist. 
6 On 8 August 2019, the applicant brought the action at issue before the Landgericht 
Köln (Regional Court, Cologne, Germany), seeking a ruling that the defendant 
was under an obligation to reimburse it for all additional costs and/or damages 
arising from the fact that, following the conclusion of the agreement of 8 August 
2018, the defendant was no longer delivering part of the performance originally 
due under the contract of 18 September 2017. 
7 By an order dated 16 June 2020, the Court of First Instance in Madrid ruled that it 
did not have territorial jurisdiction and referred the case to the Court of First 
Instance in San Sebastian (Spain). It found that the choice-of-court agreement in 
the bank guarantee was irrelevant, because it did not relate to the relationship 
between the parties. The Court of First Instance in Madrid did not address the 
choice-of-court agreement in the contract of 18 September 2017 between the 
applicant and the defendant. It found that, under Article 22-5 of the Spanish Law 
on the judiciary, the Spanish courts had jurisdiction to rule on the case, and that 
the court in San Sebastian, as the court for the place of performance, had 
jurisdiction under Article 7 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 (the 
Brussels I Regulation). The applicant did not contest the decision of the Court of 
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First Instance in Madrid. By an order dated 9 September 2020, the court in San 
Sebastian, citing the order of the Court of First Instance in Madrid, rejected the 
present applicant’s request for a fresh review of the question of international 
jurisdiction. By an order dated 9 December 2020, the court in San Sebastian 
confirmed its decision in appeal proceedings brought by the present applicant. 
8 On 11 May 2021, the Regional Court, Cologne, dismissed the action as 
inadmissible, essentially on the ground that, although the jurisdiction of the 
Regional Court, Cologne, took precedence in principle on account of the choice-
of-court agreement in the contract of 18 September 2017 and the Spanish courts 
should, under Article 31(2) of the Brussels I Regulation, have stayed the 
proceedings in Spain, which related to ‘the same cause of action’, the Spanish 
court’s own finding that it did have jurisdiction, albeit that it failed to fulfil its 
duty to stay the proceedings, had to be recognised under Article 36(1) of the 
Brussels I Regulation, leading, in the absence of international jurisdiction, to 
dismissal of the action. 
9 In its appeal to the Oberlandesgericht Köln (Higher Regional Court, Cologne) 
against that decision, the applicant partly amended the form of order it seeks. 
Besides the declaration sought at first instance, it also seeks an order requiring the 
defendant to pay. It has not, however, deducted from the amount sought the 
payment it received under the bank guarantee, citing the possibility that it might 
face an order in Spain to refund the amount of the guarantee. The appellate court 
set aside the Regional Court judgment, determined by means of an interim 
judgment that the Regional Court, Cologne, had international jurisdiction and 
referred the case back to that court for a fresh hearing and decision. 
10 With its appeal on a point of law, for which the Chamber granted leave, the 
defendant is pursuing its action for dismissal of the applicant’s appeal. 
II. 
11 Before the decision on the appeal on a point of law is delivered, the proceedings 
are to be stayed and a preliminary ruling obtained from the Court of Justice of the 
European Union pursuant to point (a) of the first paragraph and the third 
paragraph of Article 267 TFEU. The success of the appeal on a point of law 
depends on the interpretation of Articles 2(a), 31(2) and 36(1) of the Brussels I 
Regulation 
12 1. On the question of international jurisdiction, the appellate court has made the 
following observations, in essence: 
13 Jurisdiction, it finds, has been conferred on German courts on the basis of an 
effective prorogation agreement as defined in the first two sentences of 
Article 25(1) of the Brussels I Regulation. That jurisdiction, moreover, the court 
holds, is not ruled out by the decisions of the Courts of First Instance in Madrid 
and San Sebastian. It finds that no binding effect arises from Article 36(1) of the 
Brussels I Regulation in particular. Neither the order of the Madrid court nor those 
BABCOCK MONTAJES 
 
5 
of the San Sebastian court are judgments within the meaning of Articles 2(a) and 
36 of the Brussels I Regulation which would have to be recognised as establishing 
a rule that is binding in respect of other cases whereby international jurisdiction of 
any forum other than the Spanish courts must be ruled out. 
14 Although the Court of First Instance in Madrid expressly addressed international 
jurisdiction and affirmed that it applied in the present case, that, the appellate 
court finds, does not constitute a judgment with external effect. Rather, it is a 
purely internal judgment on a procedural matter which merely paves the way for 
the final judgment on the action. Accordingly, it states, the judgment of the court 
in Madrid does not relate to international jurisdiction itself but only to the 
possibility of asserting, in a separate interim procedure before the final judgment 
and the defence on the merits, the jurisdiction assumed by the court. The appellate 
court therefore concludes that the affirmation of international jurisdiction 
contained in the grounds of the order in question has no implications beyond the 
procedural situation in the present case. 
15 In particular, no different conclusion can be drawn, the court finds, from the 
Gothaer judgment of the Court of Justice of the European Union (judgment of 
15 November 2012, C-456/11, ECLI:EU:C:2012:719). Although the Court of 
Justice has ruled that judgments on procedural matters dismissing an action are 
significant judgments which have to be recognised, the judgment at issue in the 
present case is an interim judgment which makes no pronouncement yet as to 
whether the Spanish courts would not ultimately be found by a higher court to 
lack jurisdiction or, conversely, would rule on the substance. 
16 The judgments of the court in San Sebastian, the appellate court finds, are 
manifestly not judgments within the meaning of the Brussels I Regulation and do 
not even have regulatory force of their own. 
17 The appellate court also holds that the present proceedings are not to be stayed. In 
its view, if it is assumed that the proceedings in Spain and Germany concern ‘the 
same cause of action’ – which, however, it considers doubtful – the Spanish court 
failed to discharge its duty under Article 31(2) of the Brussels I Regulation to stay 
the proceedings. That non-fulfilment of the duty to stay proceedings in Spain, 
however, is no obstacle to the continuation of the proceedings in Germany. The 
second court, which has exclusive jurisdiction by virtue of an agreement, does not 
have to stay proceedings just because proceedings are pending before the first 
court and have not (yet) been stayed, but has to continue its proceedings 
regardless of that fact. 
18 2. The success of the defendant’s appeal on a point of law depends on whether it 
emerges from the interpretation of EU law, namely Articles 2(a), 31(2) and 36(1) 
of the Brussels I Regulation, that an interim judgment, in other words a decision 
which does not terminate a dispute and by which the court of a Member State 
finds that the courts of that Member State have international jurisdiction, is or is 
not to be recognised under Article 36(1) of the Brussels I Regulation by the court 
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of another Member State on which exclusive jurisdiction has been conferred by an 
agreement within the meaning of Article 25 of the Brussels I Regulation. 
19 Article 36(1) of the Brussels I Regulation stipulates that a judgment given in a 
Member State is to be recognised in the other Member States without any special 
procedure being required. The question whether the courts in Madrid and San 
Sebastian gave a judgment on international jurisdiction within the meaning of that 
provision is particularly relevant to the outcome of the present case, for both of 
the proceedings under consideration here – those before the court in San Sebastian 
and those before the Higher Regional Court, Cologne – are proceedings between 
the same parties involving the same cause of action within the meaning of 
Article 29(1) of the Brussels I Regulation (‘le même objet et la même cause’). The 
same basis applies, since the same contractual relationship is pivotal in both 
actions. The same cause of action is also to be assumed. The nub of both 
proceedings is the question whether the applicant has any claims against the 
defendant arising from the contract of 18 September 2017 for late performance or 
non-performance. In the present case, it relates to the cause of action itself. In the 
proceedings before the court in San Sebastian, it is a decisive preliminary 
question. At least in so far as a payment corresponding to the amount of the 
guarantee is sought in those proceedings, there is a risk of contradictory 
judgments. 
20 If the judgments of the courts in Madrid and San Sebastian were not to be 
recognised under Article 36(1) of the Brussels I Regulation, the judgment of the 
appellate court on the international jurisdiction of the Regional Court, Cologne, 
would prove to be correct, and to that extent the defendant’s appeal on a point of 
law would have to be dismissed. If, however, the aforementioned judgments had 
to be recognised, the appellate judgment would have to be set aside and the 
judgment of the Regional Court, Cologne, reinstated in response to the 
defendant’s appeal on a point of law. If recognition depended additionally on 
whether the judgments of the courts in Madrid and San Sebastian are binding on 
those courts themselves and/or may not be varied on appeal, the appellate 
judgment would have to be set aside and the case referred back to the appellate 
court in order to obtain further clarification on the position in Spanish law. 
21 (a) The international jurisdiction of the Regional Court, Cologne, is determined 
solely by the Brussels I Regulation. 
22 (b) The Chamber itself cannot undertake the interpretation, described at the outset, 
of the Brussels I Regulation. Its correct application is not beyond doubt. Neither 
an acte clair nor an acte éclairé exists in the present case. 
23 (aa) The situation is not that described by the term acte clair, in which the correct 
application of EU law is so obvious as to leave no scope for any reasonable doubt 
as to the manner in which the question raised is to be resolved. 
BABCOCK MONTAJES 
 
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24 (1) First, the wording of Article 36(1) of the Brussels I Regulation contains no 
limitations. It merely prescribes that a judgment given in a Member State is to be 
recognised in the other Member States without any special procedure being 
required. In Article 2(a) of the Brussels I Regulation, a judgment is defined as 
‘any judgment given by a court or tribunal of a Member State, whatever the 
judgment may be called, including a decree, order, decision or writ of execution, 
as well as a decision on the determination of costs or expenses by an officer of the 
court’. Moreover, Article 45(3) of that regulation establishes that, apart from some 
exceptions which are not relevant here, the jurisdiction of the court of origin may 
not be reviewed and that the test of public policy (ordre public) may not be 
applied to the rules relating to jurisdiction. 
25 (2) Second, the Brussels I Regulation itself offers several reasons for seriously 
doubting whether the interim judgment of a court of another Member State 
affirming its own jurisdiction is also binding on the designated domestic court. 
26 Article 31(2) of the Brussels I Regulation specifies that, without prejudice to 
Article 26 of that regulation, where a court of a Member State on which an 
agreement as referred to in Article 25 of the regulation confers exclusive 
jurisdiction is seised, any court of another Member State is to stay the proceedings 
until such time as the court seised on the basis of the agreement declares that it has 
no jurisdiction under the agreement. The explanatory remarks in recital 22, which 
state that ‘the designated court should be able to proceed irrespective of whether 
the non-designated court has already decided on the stay of proceedings’, suggest 
that the designated court’s power of review and decision regarding its own 
international jurisdiction should be maintained for as long as possible, and not 
only in cases where the court first seised has not yet ordered a stay but has even 
declared that it has jurisdiction, contrary to its obligation to stay proceedings. 
27 Another reason for continued power of review and decision lies in the history of 
the regulation. The introduction of the provisions on the precedence of the 
designated court must be seen as the legislature’s direct response to the problem 
of ‘torpedo actions’ […]. It is evident from recital 22 that amendments were 
required in order to enhance the effectiveness of exclusive choice-of-court 
agreements and to avoid abusive litigation tactics. In spite of the introduction of 
Article 31(2) and (3) of the Brussels I Regulation, however, an applicant would 
still be at the mercy of a ‘torpedo action’, as before, if the designated court had to 
declare that it had no jurisdiction because the other court – perhaps unthinkingly – 
had declared that it had jurisdiction, possibly in an interim judgment which was 
not even binding on that court itself and/or which was non-definitive. 
28 (bb) There is, moreover, no acte éclairé in the present case. 
29 Although it can be seen from the judgment of 15 November 2012 – C-456/11 
(Gothaer Allgemeine Versicherung), ECLI:EU:C:2012:719 – that final judgments 
by which the court of a Member State declines jurisdiction on the basis of a 
jurisdiction clause must be recognised too, the Court of Justice of the European 
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Union has not yet ruled on the question of recognition of an interim judgment by 
which a court affirms its own international jurisdiction. 
30 In so far as the Court of Justice, in its judgment of 14 October 2024 – C-39/02 
(Maersk Olie & Gas), ECLI:EU:C:2004:615 – ruled that the ability to be 
recognised is not limited to decisions which terminate a dispute in whole or in 
part, it is the Chamber’s understanding that this was solely to ensure that 
provisional or interlocutory decisions would also be covered. That is not to say 
that all interim judgments must be recognised. 
31 In so far as the Court of Justice, by judgment of 21 March 2024 – C-90/22, 
ECLI:EU:C:2024:252 – ruled that a Member State court is not allowed to refuse 
to recognise the judgment of a court of a different Member State on the ground 
that the latter court declared itself to have jurisdiction in disregard of an 
agreement conferring jurisdiction, within the meaning of Article 25 of the 
Brussels I Regulation, which forms part of the contract between the parties, the 
question referred for a preliminary ruling in that case concerned the recognition of 
a decision which terminated a dispute. In the view of the Chamber, that does not 
answer the question whether even an interim judgment is binding on the 
designated court of another Member State. Recognition of a mere interim 
judgment poses the risk of a negative conflict of jurisdiction, which has a 
particularly significant impact on the applicant’s right to an effective remedy; that 
occurs when, in view of the interim judgment, the designated court definitively 
dismisses an action because it lacks jurisdiction and the court of the other Member 
State itself or higher instances ultimately disclaim jurisdiction too. 
32 (c) The Chamber is minded to hold that an interim judgment, in other words a 
decision which does not terminate a dispute, by which a court of a Member State 
determines that the courts of that Member State have international jurisdiction is 
not a judgment which must be recognised pursuant to Article 36(1) of the Brussels 
I Regulation by the court of another Member State on which an agreement as 
referred to in Article 25 of the Brussels I Regulation confers exclusive 
jurisdiction. 
33 On account of the primacy of EU law, it is still possible for the non-designated 
court, in spite of an interim judgment to the contrary, to stay the proceedings in 
accordance with Article 31(2) of the Brussels I Regulation before the termination 
of the dispute to preserve the designated court’s exclusive power of review and 
decision which is enshrined in that regulation. In contrast to a decision terminating 
a dispute, in the case of a mere interim judgment it thus remains possible to 
conduct proceedings which are in conformity with the regulation. Any contrary 
provisions of national law as to whether a court is bound by its own acts or 
regarding the legal force of such acts ought not to be applied by the non-
designated court by reason of the primacy of EU law. That presupposes, however, 
that the designated court is not compelled to recognise a mere interim judgment. 
That reading of the Brussels I Regulation is the only one capable of giving the 
regulation practical effect (effet utile). The aims of the Brussels I Regulation of 
BABCOCK MONTAJES 
 
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effective access to justice and precedence of the designated court would be 
achieved without prejudicing the principle of mutual recognition of a judgment on 
the merits or on a procedural matter which terminates a dispute. In the view of the 
Chamber, that applies regardless of whether the interim judgment is binding on 
the non-designated court itself and/or whether it may be varied on appeal. The 
decisive point ought to be that, after an interim judgment, the non-designated 
court is still able in every case to fulfil its obligation under Article 31(2) of the 
Brussels I Regulation to stay the proceedings. 
[…]