Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 23 April 2026 (1)
Case C‑799/24
Babcock Montajes S.A.
v
Kanadevia Inova Steinmüller GmbH
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) (Germany))
( Preliminary ruling – Judicial cooperation in civil matters – Recognition and enforcement of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Concept of ‘judgment’ – Interim decision of a court of a Member State asserting international jurisdiction to hear and determine the claim – Exclusive choice-of-court agreement designating another court )
I.      Introduction
1.        The
present request for a preliminary ruling submitted by the Bundesgerichtshof (Federal Court of Justice, Germany; ‘the referring court’) provides the Court with the opportunity to clarify the scope of the term ‘judgment’ within the meaning of Regulation (EU) No 1215/2012. (2) That term is one of the key concepts on which that regulation relies. Indeed, only decisions that can be regarded as ‘judgments’ may be subject to the rules on recognition and enforcement laid down in the above
regulation. More specifically, the question arises as to whether
the concept of ‘judgment’ covers
an interim decision taken by the courts of one Member State (here, Spain), seised first, by which those courts declared themselves to have international jurisdiction to hear and determine the claim (without yet doing so), in circumstances where
the courts of another Member State
(here, Germany), seised second,
consider that that decision infringes a choice-of-court agreement conferring exclusive jurisdiction on them.
2.        That question
arises in the context of a dispute between Babcock Montajes (‘Babcock’), a company established in Spain, and Kanadevia Inova Steinmüller (‘Kanadevia’), a company established in Germany, concerning the performance of a contract for the construction of a waste treatment plant in San Sebastian (Spain). As a result of that dispute,
Kanadevia called in the guarantee that Babcock had provided as security for the performance of its part of the contract.
3.        In response, on the one hand, Babcock brought an action against Kanadevia claiming the amount of the guarantee and damages. Although the contract provided for the exclusive jurisdiction of the courts of Cologne (Germany) (‘the choice-of-court agreement’), Babcock filed that action before the Spanish courts. On the other hand, several days later, Kanadevia introduced an action against Babcock in Cologne (Germany). (3)
4.        The Spanish courts ruled first. Those courts declared by an interim decision that they had
international jurisdiction to hear and determine Babcock’s claim (the term ‘interim’ here referring to the fact that that decision did not determine the parties’ rights and obligations) (‘the decision of the Spanish courts’ or ‘the interim decision at issue’). Subsequently, the Landgericht Köln (Regional Court, Cologne, Germany) dismissed Kanadevia’s action due to lack of jurisdiction. That court considered that although the choice-of-court agreement had been disregarded by the Spanish courts (together with the specific rule of lis pendens provided for in Article 31(2) of Regulation No 1215/2012), (4) the decision had to be recognised pursuant to Article 36(1) of Regulation No 1215/2012 (5) (therefore preventing the German courts from exercising the jurisdiction conferred under the choice-of-court agreement).
5.        The decision of the Landgericht Köln (Regional Court, Cologne) was reversed on appeal. The court hearing the case on appeal considered the existence of a valid choice-of-court agreement in favour of the German courts and the fact that the decision of the Spanish courts was merely an interim one
to be decisive to its findings. That court therefore declared that the Landgericht Köln (Regional Court, Cologne) had international jurisdiction and referred the case back to it.
6.        Babcock challenged that second-instance decision before the referring court, which harbours doubts as to whether the interim decision at issue
must be regarded as a ‘judgment’ within the meaning of Regulation No 1215/2012 and whether that decision must therefore be recognised by the German courts (with the result that the German courts would be prevented from hearing and determining Kanadevia’s claim).
7.        It should be recalled that the Court has already clarified, in its judgment in Gjensidige, (6) that a court of a Member State cannot refuse to recognise a judgment on the ground that the
court of the State of origin declared itself to have jurisdiction in disregard of a choice-of-court agreement. However, in that case, the issue of
recognition concerned a judgment on the merits of the claim. What remains to be clarified in the present case is whether the same conclusion can be drawn in respect of an interim decision
which simply declares that the court of origin has international jurisdiction to hear and determine the claim, in supposed disregard of a choice-of-court agreement.
8.        The specificity of the present situation consists in
the fact that, unlike the situation considered in the judgment in Gjensidige, no substantive determination of the rights and obligations of the parties
has been made as of yet. That, it is suggested, means that it
is still possible for the proceedings to follow the jurisdictional route that is claimed (and is considered by the referring court) to be the correct one (namely the one which allows
the courts designated by the choice-of-court agreement to hear and determine the claim in the main proceedings). Nevertheless, that presupposes that the German courts are not under an obligation to recognise the decision of the Spanish courts. That aspect of the case thus raises the delicate issue of the balance between the rules on jurisdiction laid down in Regulation No 1215/2012 (including those related to lis pendens), on the one hand, and the rules on recognition of judgments laid down in that regulation, on the other.
II.    Legal framework
9.        Recitals 3, 4, 6, 21, 22
and 26 of Regulation No 1215/2012 read as follows:
‘(3)      The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.
(4)      Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.
…
(6)      In order to attain the objective of free circulation of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding and directly applicable.
…
(21)      In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously.
(22)      However, in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to deal satisfactorily with a particular situation in which concurrent proceedings may arise. This is the situation where a court not designated in an exclusive choice-of-court agreement has been seised of proceedings and the designated court is seised subsequently of proceedings involving the same cause of action and between the same parties. In such a case, the court first seised should be required to stay its proceedings as soon as the designated court has been seised and until such time as the latter court declares that it has no jurisdiction under the exclusive choice-of-court agreement. This is to ensure that, in such a situation, the designated court has priority to decide on the validity of the agreement and on the extent to which the agreement applies to the dispute pending before it. The designated court should be able to proceed irrespective of whether the non-designated court has already decided on the stay of proceedings.
…
(26)      Mutual trust in the administration of justice in the Union justifies the principle that judgments given in a Member State should be recognised in all Member States without the need for any special procedure. In addition, the aim of making cross-border litigation less time-consuming and costly justifies the abolition of the declaration of enforceability prior to enforcement in the Member State addressed. As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed.’
10.      Article 2(a) of Regulation No 1215/2012 defines ‘judgment’ 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’, adding that ‘for the purposes of Chapter III [on recognition and enforcement], [it] includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement’.
11.      Article 25(1) of Regulation No 1215/2012 regulates the prorogation of jurisdiction and provides that ‘if the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. …’
12.      Article 29 of Regulation No 1215/2012 concerns ‘lis pendens’ and ‘related actions’ and provides, in paragraphs 1 and 3:
‘1.      Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
…
3.      Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’
13.      Article 31 of Regulation No 1215/2012, which appears in the same section of Regulation No 1215/2012, states:
‘….
2.      Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall 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.
3.      Where the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State shall decline jurisdiction in favour of that court.
…’
14.      Article 36(1) of Regulation No 1215/2012, concerning the recognition of judgments, states that ‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.
15.      Pursuant to Article 38 of Regulation No 1215/2012, ‘the court or authority before which a judgment given in another Member State is invoked may suspend the proceedings, in whole or in part, if:
(a) the judgment is challenged in the Member State of origin; or
…’
16.      Article 45 of Regulation No 1215/2012 concerns the refusal of recognition of judgments and provides:
‘1.      On the application of any interested party, the recognition of a judgment shall be refused:
(a)      if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;
(b)      where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
(c)      if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed;
(d)      if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed;
(e)      if the judgment conflicts with:
(i)      Sections 3, 4 or 5 of Chapter II where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant; or
(ii)      Section 6 of Chapter II.
…
3.      Without prejudice to point (e) of paragraph 1, the jurisdiction of the court of origin may not be reviewed. The test of public policy referred to in point (a) of paragraph 1 may not be applied to the rules relating to jurisdiction.
…’
III. Facts, national proceedings and questions referred
17.      Babcock, the applicant before the referring court,
and Kanadevia, defendant,
entered into a contract on 18 September 2017 (‘the initial contract’) for the construction of a waste treatment plant in San Sebastian (Spain). Under that contract, Babcock was to install two incineration boilers as part of the waste treatment facility. Furthermore, Babcock provided Kanadevia with a bank guarantee as security for the performance of the contract. Under that contract, the courts of Cologne (Germany) were to have exclusive jurisdiction to hear and determine disputes arising thereunder.
18.      Due to delays in the work, the parties entered into an amending agreement on 8 August 2018 (‘the amending contract’), under which Babcock was no longer required to perform a part of the stipulated
services.
Subsequently, Kanadevia claimed additional costs from Babcock in respect of the services due. Babcock repeatedly stated that it saw no basis for such claims and Kanadevia called
in the bank guarantee. The bank paid the full amount of the bank guarantee to Kanadevia.
19.      In response, on 30 July 2019, Babcock brought an action against Kanadevia before the Juzgado de primera instancia de Madrid (Court of First Instance, Madrid, Spain), claiming
the amount of the bank guarantee (which Babcock had meanwhile reimbursed to the bank) and damages.
20.      On 8 August 2019, Kanadevia brought an action before the Landgericht Köln (Regional Court, Cologne), seeking a declaration that Babcock was under an obligation to reimburse all additional costs to it and/or to pay it damages arising from the fact that, following the conclusion of the amending contract, Babcock was no longer delivering a part of the performance due under the initial contract.
21.      By order of 16 June
2020, the Juzgado de primera instancia de Madrid (Court of First Instance, Madrid) held that the Spanish courts had international jurisdiction to rule on the dispute but declined territorial jurisdiction and referred the case to the Juzgado de primera instancia de San Sebastián (Court of First Instance, San Sebastian, Spain).
22.      Kanadevia did not challenge that decision.(7) However, it submitted a request for the question of international jurisdiction to be re-examined. The Juzgado de primera instancia de San Sebastián (Court of First Instance, San Sebastian) refused that request by order of 9 September 2020. That decision was confirmed by order of 9 December 2020 adopted by the same court.
23.      By judgment of 11 May
2021, the Landgericht Köln (Regional Court, Cologne) dismissed the action brought by Kanadevia
(on 8 August 2019) as inadmissible in the absence of international jurisdiction of the German courts. That court considered
that although its own jurisdiction in principle took precedence under the choice-of-court agreement and that the Spanish courts should have stayed the proceedings under Article 31(2) of Regulation No 1215/2012, their decision had to be recognised in accordance with Article 36(1) of that regulation.
24.      Kanadevia brought an appeal before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany), which set the first-instance judgment aside. It found that the Landgericht Köln (Regional Court, Cologne) had international jurisdiction and referred the case back to the first-instance court. It considered, in essence, that the international jurisdiction of the German courts had been established on the basis of a valid choice-of-court agreement within the meaning of
Article 25(1) of Regulation No 1215/2012. That jurisdiction was not excluded by the decision of the Spanish courts, because that decision did not terminate the proceedings and consequently did not have to be recognised in accordance with Article 36(1) of Regulation No 1215/2012.
According to the appellate court, none of the decisions adopted by the Spanish courts constituted a ‘judgment’ within the meaning of Article 36(1) of Regulation No 1215/2021 because the effects of those decisions were purely internal to the (ongoing) proceedings in Spain. Furthermore, the appellate court took the view that the proceedings before the German courts were
not to be stayed. In its view, the
fact that the Spanish courts had failed to stay the proceedings under Article 31(2) of Regulation No 1215/2012
did not preclude the continuation of the proceedings in Germany, in view of the exclusive jurisdiction conferred on the Landgericht Köln
(Regional Court, Cologne).
25.      Babcock brought an appeal against the decision of the Oberlandesgericht Köln (Higher Regional Court, Cologne) before the
referring court. Harbouring doubts as to the correct interpretation of the term ‘judgment’ in Article 36(1) of Regulation No 1215/2012,
that court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is the term “judgment” in Article 36(1) of [Regulation
No 1215/2012] to be interpreted to the effect that the court of a Member State on which an agreement as referred to in Article 25 of [Regulation No 1215/2012] confers exclusive jurisdiction (Article 31(2) of [Regulation No 1215/2012]) 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?’
26.      Written observations were submitted by Babcock,
Kanadevia, the Czech, Spanish and Cypriot Governments and the European Commission. Babcock,
Kanadevia,
the
German and Spanish Governments and the Commission presented oral argument at the hearing that took place on 4 March 2026.
IV.    Assessment
27.      By the two questions referred,
which it is appropriate to examine together, the referring court invites the Court of Justice to clarify whether an interim decision adopted by a court of a Member State, in which that court (only) declares itself to have international jurisdiction, but which does not yet make any determination on the merits of the claim, is covered by the concept of ‘judgment’ within the meaning of Article 36(1) of Regulation No 1215/2012 and must therefore be recognised in accordance with that provision, even if that decision allegedly contradicts an exclusive choice-of-court agreement designating the courts of another Member State. The referring court also wonders whether the recognition of such a decision depends on whether it can still be altered within the proceedings in which it was taken.
28.      I will start my assessment of those questions by addressing Kanadevia’s objection to the admissibility of the questions referred (A). I will then recall that, pursuant to the rules of Regulation No 1215/2012 as interpreted in particular in the judgment in Gjensidige, a ‘judgment’ (within the meaning of Articles 2(a) and 36(1) of Regulation No 1215/2012) issued by a court of a Member State must be recognised in all other Member States, even where the court of origin declared itself to have international jurisdiction in disregard of a choice-of-court agreement (B).
29.      In the circumstances of the case in the main proceedings, that means that the interim decision at issue should be so recognised in Germany. This would not be the case only if that decision did not qualify as a ‘judgment’ in the first place. However, I will suggest that such a conclusion is not supported by that regulation, despite the protection that the EU legislature confers on choice-of-court agreements. That will lead me to conclude that a decision by which a non-designated court finds
that it has
international jurisdiction, allegedly in disregard of a choice-of-court agreement, must be recognised. I will also explain that, while the obligation to recognise a judgment having merely jurisdictional content arises irrespective of whether or not that judgment is final, what is of more relevance for the practical solution to a situation of lis pendens, such as the one before the referring court, is the determination of whether the court seised first, which issued the decision in disregard of a choice-of-court agreement, has established jurisdiction within the meaning of Article 29(3) of Regulation No 1215/2012
(C).
A.      Admissibility
30.      Kanadevia argues in essence that the request for a preliminary ruling is inadmissible because the questions referred are neither relevant nor
necessary for the resolution of the dispute,
given that
the Spanish and German proceedings do not concern the ‘same cause of action’ within the meaning of Article 29(1) of Regulation No 1215/2012. Thus, as I understand the argument, the rules on lis pendens laid down in that provision do not apply and, accordingly, the German courts can continue adjudicating on the claim brought by Kanadevia even if they had to recognise the interim decision at issue.
31.      More specifically, that party states that, on the one hand, by the action brought before the Spanish courts, Babcock is seeking
reimbursement, by Kanadevia,
of
the bank guarantee provided by Babcock
in the context of the initial contract.  On the other hand, by its action pending before the German courts, Kanadevia seeks
- compensation, from
Babcock, for an alleged breach of contract.
In that light, Kanadevia submits that the Spanish courts
may
rule on Babcock’s claim without considering whether Kanadevia is entitled to compensation for breach of contract. Against that background, Kanadevia suggests that an additional question should be referred to the Court in order to clarify the concept of the same cause of action within the meaning of Article 29(1) of Regulation No 1215/2012.
32.      I note, first, that it follows from the order for reference that the referring court considers
that the proceedings before the Spanish and German courts
involve the same cause of action within the meaning of the above provision.
Although it follows from the file that, at the previous stages of the main proceedings, the national courts took somewhat divergent positions on the matter, (8) that issue
now appears
to have been settled
and neither the questions referred nor the order for reference
indicate
that the referring court entertains any doubts in that respect.
33.      That in, my view, disposes of Kanadevia’s argument that the questions
referred are irrelevant,
because that assertion is based on the premiss that both proceedings at issue do not involve the
same cause of action. It is therefore only for the sake of completeness that I recall, second,
that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court within the procedure
governed by Article 267 TFEU. (9) It follows that questions relating to EU law that are put to the Court in that context are presumed to be relevant and the Court may refuse to rule on a preliminary question referred by a national court only if it is quite obvious
that the interpretation of EU law sought bears no relation to the actual facts of the main proceedings or their purpose, where the problem is hypothetical or where the Court does not have the necessary factual and legal information to provide a useful answer to the questions referred to it. (10)
34.      I note that the referring court seeks clarification on the concept of ‘judgment’
within the meaning of Regulation No 1215/2012 in order to determine whether the decision of the Spanish courts can be classified as such and whether it must therefore be recognised in Germany. It points out that,
if that is the case, the judgment delivered by the Oberlandesgericht Köln (Higher Regional Court, Cologne) at the appeal stage of the main proceedings would have to be set aside and the judgment of the Landgericht Köln (Regional Court, Cologne) would have to be reinstated.
35.      Under those circumstances, the interpretation of EU law sought is clearly relevant for the resolution of the dispute
pending in the main proceedings.
36.      Third, with regard to Kanadevia’s suggestion that an additional question should be submitted in order to clarify the concept of the same cause of action within the meaning of Article 29(1) of Regulation No 1215/2012 in the context of both proceedings at issue, it follows from the general remarks above that,
within a procedure governed by Article 267 TFEU,
it is for the referring court to define the subject matter of the questions to be examined by the Court. Accordingly, it is not for the Court to change that subject matter. (11) The Court can, of course, reformulate the questions referred
to ensure that the reply given is a useful one. However, for the reasons set out above,
I see no need for such an approach.
37.      In the light of the above, I consider that Kanadevia’s objection concerning the admissibility of the questions referred should be dismissed.
B.      The infringement of a choice-of-court agreement cannot ground a refusal to recognize a judgment
38.      Articles 36 and 39 of Regulation No 1215/2012(12) lay down the principle that ‘judgments’ in civil and commercial matters issued by the courts of the Member States must be recognised and considered enforceable in all the other Member States. That obligation of mutual recognition is based, in turn, on the mutual trust that Member States must have in the judiciary of the others.(13) That obligation effectively makes it possible to pursue one of the main objectives of Regulation No 1215/2012, namely the free circulation of judgments in civil and commercial matters, which are to be recognised and enforced in the Member State where such recognition and enforcement is sought (Member State addressed), without the need for any special procedure, as if those judgments had been given in the Member State addressed. (14)
39.      The same principle of mutual trust is given expression through the prohibition on the court of the Member State addressed from reviewing not only the substance of a judgment rendered in another Member State (15) but also, in particular, the jurisdiction of the court of origin. (16)
40.      Concerning the matter of jurisdiction, the system of Regulation No 1215/2012 is based on the understanding that the court of the State addressed is never in a better position than the court of the State of origin to determine whether the latter has jurisdiction. That premiss reflects, in turn, the link between the common rules of recognition and the common rules of jurisdiction which directly determine which court is to hear and determine a given claim. In applying those rules, the Member States’ courts act on an equal footing. This explains the high degree of mutual trust that the courts must have between themselves (17) and why, more specifically, a court in a Member State is, in principle, not permitted to review the jurisdiction of the court of origin. (18)
41.      That rule is subject to several exceptions which are exhaustively identified within a slightly broader (but also exhaustive) list of grounds based on which the recognition of a judgment can be exceptionally refused, as set out in Article 45(1) of Regulation No 1215/2012.
42.      However, by reference to the exhaustive nature of those grounds, the Court held in the judgment in Gjensidige, in particular and as already alluded to, that none of those grounds cover the situation in which the court of origin has declared itself to have jurisdiction in breach of a choice-of-court agreement conferring jurisdiction on the courts of another Member State.
That means that recognition of a judgment cannot be refused on that basis. (19)
43.      In reaching that conclusion, the Court considered that such a situation could not be included under the ground of refusal of recognition provided for in Article 45(1)(e) which concerns the infringement, by the court of origin, of certain jurisdictional rules laid down in Regulation No 1215/2012. (20)
44.      In that respect I recall that, pursuant to Article 45(e)(i) of Regulation No 1215/2012,
recognition may be refused when, in delivering the judgment in respect of which recognition is sought, the court infringed jurisdictional rules protecting defendants regarded as a weaker party, namely consumers, employees and those who may be concerned by insurance contracts (policyholder, the insured party, a beneficiary
or the injured party). (21)
45.      Furthermore, pursuant to
Article 45(1)(e)(ii) of Regulation No 1215/2012, recognition may also be refused in the event of breach of certain jurisdictional rules providing for exclusive competence. Those cases of exclusive competence concern various scenarios (22) but do not concern the exclusive competence that derives specifically from a choice-of-court agreement. (23) I have already explained on previous occasions that
the rules
of exclusive jurisdiction referred to in Article 45(1)(e)(ii) of Regulation No 1215/2012
cannot be departed from by an agreement (as follows from Article 25(4) of Regulation No 1215/2012) and that their rationale has been justified by reference to the particular connection between the areas to which they are attached and the given Member State. (24)
46.      In short, although the provisions of Article 45(1)(e)(i) and (ii) of Regulation No 1215/2012 identify several limited situations in which it is exceptionally possible to refuse recognition of a judgment because it conflicts with certain jurisdictional rules, those exceptions cannot affect the main rule pursuant to which the infringement of jurisdictional rules defined in Regulation No 1215/2012 cannot lead to recognition being refused because, again, the jurisdiction of the court of the State of origin cannot, in principle, be reviewed.
47.      That conclusion is unaltered by the fact that, when Regulation No 1215/2012 was adopted, the EU legislature decided to enhance the effectiveness of choice-of-court agreements through a specific lis pendens rule in Article 31(2) of Regulation No 1215/2012. (25)
48.      At this juncture, I would like to recall that the rules of lis pendens provided for in Article 29 of Regulation No 1215/2012 are designed to deal with the (undesirable) situation where a dispute involving the same parties and the same cause of action is brought before two different courts in parallel. Those rules address that situation by relying on the simple chronology of actions and giving priority to the court first seised. More specifically, when such a dispute is already pending before the courts of a Member State A, the court seised second in Member State B is to stay proceedings until the jurisdiction of the first court is established. When that occurs, the second court is under an obligation to decline jurisdiction.
49.      Those general rules existed already under Regulation No 44/2001 and its legal predecessor, the 1968 Brussels Convention. (26) When adopting Regulation No 1215/2012, the EU legislature maintained those rules but added a specific lis pendens
rule for the scenario involving of a choice-of-court agreement.
50.      Under that specific rule, where an agreement between parties confers exclusive jurisdiction over their dispute on a court of a given Member State, that designated court must be given priority to determine whether it has jurisdiction to hear and determine the claim, even when it has not been seised first (reverse priority). That follows from Article 31(2) of Regulation No 1215/2012 pursuant to which where such designated court is seised, ‘any court of another Member State shall 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’. Moreover, under Article 31(3) of Regulation No 1215/2012, where the designated court has established its jurisdiction in accordance with the agreement, those other courts ‘shall decline’
theirs.
51.      I recall that that specific rule was introduced to ‘enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics’. (27) Those terms refer to the scenario often described as ‘torpedo actions’ by which, when a disagreement occurs, the party with an interest in not litigating before the designated court quickly brings its claim (often for a negative declaration of liability) before a non-designated court, in particular where proceedings are considered to be notoriously slow.
52.      Under the general lis pendens rule, such an approach prevented the designated court (seised second) from acting because it had to stay the proceedings pending the decision of the court seised first and, when that court established its jurisdiction (based on another jurisdictional ground set out in Regulation No 1215/2012), it had to decline its own, notwithstanding the choice-of-court agreement. The strict application of those rules could thus deprive choice-of-courts agreement of their effect. (28) As already observed, the special lis pendens rule in Article 31(2) of Regulation No 1215/2012 is meant to resolve that tension.
53.      However, as pointed out by the Court in the judgment in Gjensidige and, in the present proceedings, by Babcock, the Spanish Government and the Commission,
when introducing that specific rule, the EU legislature did not modify the grounds for refusal provided under Article 45(1) of Regulation No 1215/2012. (29) That reflects the choice of the EU legislature not to extend the (then new) protection conferred on choice-of-court-agreements to the recognition stage and instead to give precedence, at that stage, to the principle of mutual recognition, as the Commission points out. (30)
54.      In contrast, the German Government expressed the view that the absence of a breach of Article 31(2) of Regulation No 1215/2012 as one of the grounds for refusal listed in Article 45(1) of Regulation No 1215/2012 is not an intentional omission on the part of the EU legislature but is rather a regulatory gap. According to the German Government, that gap is due to the fact that, when it introduced the new lis pendens rule, the EU legislature acted on the premiss that that rule would be observed. The German Government therefore takes the view that that absence is not decisive to whether recognition can be refused in the circumstances discussed here.
55.      I am unconvinced by that position. First, the Court clearly ruled out the proposition advanced by the German Government in the judgment in Gjensidige, from which it follows that the above omission is, precisely, crucial.
Second, it seems to me that that ‘premiss that the rule would be observed’ was certainly present when the legislature introduced the jurisdictional rules which, contrary to the rule at issue here, are mirrored in the relevant provisions of Article 45(1) of Regulation No 1215/2012 as grounds for the refusal of recognition. The comparison between the jurisdictional rules set out in Regulation No 1215/2012, on the one hand, and the list of grounds
for refusal, on the other hand, instead indicates that the legislature did not overlook the fact that, in practice, errors may occur but singled out only some of them as capable of leading to recognition being refused.
56.      In fact, apart from the view taken by the German Government, the above does not appear to be in dispute. However, the referring court considers another dimension of the recognition regime governed by Regulation No 1215/2012, to which I now turn.
C.      Does an interim decision by which a court of a Member State declares itself to have jurisdiction in breach of a choice-of-court agreement constitute a ‘judgment’?
57.      The application of the rules on the recognition and enforcement of ‘judgments’ provided for by Regulation No 1215/2012, described in the previous section, presuppose that the decision concerned qualifies as such. The questions of the referring court in fact enquire about that underlying condition.
58.      Indeed, should it be concluded that the decision of the Spanish courts which declares that those courts have international jurisdiction but which, unlike the case having led to the judgment in Gjensidige, does not yet determine the parties’ rights and obligations, does not constitute a ‘judgment’ within the meaning of the Regulation No 1215/2012, there would be no obligation on the part of the courts seised second (here, the German courts) to recognise it. In other words, and as I understand the argument, there would be no obligation on their part to consider themselves bound by the jurisdictional determination made by the courts seised first (here, the Spanish courts) with the result that they would not be obliged to decline their own jurisdiction and, relying on the choice-of-court agreement at issue, they could proceed with hearing and determining Kanadevia’s claim.
59.      I note that the parties and other interested persons in the present proceedings can be divided into two groups depending on their suggested reply to the question as just summarised. On the one hand, Babcock, the Spanish and Czech Governments and the Commission
consider that a decision such as the interim decision at issue is a ‘judgment’ within the meaning of Article 2(a) of Regulation No 1215/2012 (and thus, must be recognised throughout the European Union, under the rules described in the previous section). On the other hand, the Kanadevia and the Cypriot Government take the opposite view, which also appears to be the preferred solution also of the referring court.
60.      I agree, in essence, with the first of those two positions.
61.      To explain the reasons that lead me to that conclusion, I will make some preliminary remarks on the concept of ‘judgment’ (1) before turning to the interpretation of this autonomous concept of EU law by considering the relevant text and context (2) and the relevant objectives (3).
1.      Preliminary remarks on the concept of judgment
62.      I note that the referring court enquires about the term ‘judgment’ appearing in
Article 36(1) of Regulation No 1215/2012 pursuant to which
‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.
63.      That term is defined in Article 2(a) of Regulation No 1215/2012
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’. That provision also states that ‘for the purposes of Chapter III [on recognition and enforcement], [it] includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter’. The only limit that Article 2(a) of Regulation No 1215/2012 imposes in that context is the clarification, in the last sentence, that the term ‘judgment’ ‘does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement’.
64.      Furthermore, it follows from the Court’s case-law, beginning with its judgments on the 1968 Brussels Convention, that that concept of EU law is to be interpreted broadly. (31) In that vein, the Court has held that it ‘covers any judgment given by a court of a Member State, without it being necessary to draw a distinction according to the content of the judgment in question, provided that it has been, or has been capable of being, the subject, in [the] Member State of origin and under various procedures, of an inquiry in adversarial proceedings’. (32)
65.      In particular, in the judgment in
Mærsk, the Court applied the concept of judgment to interim injunctions and protective measures (such as a decision provisionally fixing the amount to which the liability of a shipowner would be limited). (33) In the judgment in Gothaer, the Court further held that it encompasses a judgment by which a court of a Member State has declined jurisdiction on the basis of a jurisdictional clause (conferring, in that case, exclusive jurisdiction on the Icelandic courts). (34)
66.      Those general matters being recalled, I will now turn to the more specific examination of whether the concept of ‘judgment’ covers an interim decision by which a court of a Member State declares itself to have jurisdiction but does not yet determine the parties’ rights and obligations (in breach of a choice-of-court agreement).
2.      Textual and contextual interpretation
67.      First, turning to the definition of the concept of ‘judgment’ laid down in Article 2(a) of Regulation No 1215/2012, nothing in its broad wording allows for the exclusion of an interim decision such as the one at issue from its scope, as acknowledged by the referring court. It also does not appear to be in dispute that that decision ‘has been, or has been capable of being, the subject, in [the] Member State of origin and under various procedures, of an inquiry in adversarial proceedings’, within the meaning of the case-law cited in point 65 above.
68.      The judgments in Maersk and Gothaer referred to above appear to be particularly relevant to the present case as they embrace a broad reading that the definition of the concept ‘judgment’ suggests and, for that reason, were relied on by Babcock to support the argument that procedural decisions (which do not decide on the merits of the action) are not excluded from the concept of ‘judgment’.
69.      I certainly agree with the referring court that both of those judgments do not directly concern a decision such as the interim decision at issue here. On the one hand, a provisional measure (such as that at issue in the judgment in Maersk), unlike the decision considered here, determines the parties’ rights and obligations (albeit only provisionally). On the other hand, a decision declining jurisdiction in favour of another court (of a third country) based on a choice-of-court agreement (at issue in the judgment in Gothaer) terminates the proceedings contrary to the interim decision at issue here (which confirms their jurisdiction to hear and determine the claim).
70.      However, the fact that the decision at issue in the main proceedings differs, in one way or another, from the decisions considered in the judgments in Maersk and Gothaer does not automatically mean that it cannot fall within the definition of ‘judgment’. In fact, and rather to the contrary, in the light of the broad wording of that definition, I do not see how a decision ‘merely’ establishing jurisdiction (possibly in breach of a choice-of-court agreement), as opposed to a decision that also determines the parties’ rights and obligations, could be singled out as not being covered by that concept. That conclusion is unaffected by the observation, put forward by the referring court and the German Government, that such exclusion is justified by the fact that the effects of the interim decision at issue are ‘purely internal’ to the (still pending) proceedings.
71.      It is, of course, not difficult to see how a decision concerning only jurisdiction differs from one determining the parties’ rights and obligations (or, for that matter, from one taking position both on jurisdiction and the merits). I also readily acknowledge that many specific categories of judicial decisions exist in national legal orders, from which various legal consequences may flow under domestic law.
72.      However, the Court has repeatedly stated that the concepts used in Regulation No 1215/2012 must be construed autonomously, which applies also to the term at issue, as I have already observed.
73.      Admittedly, a party will typically seek the recognition of a judgment in order to assert a substantive right that has been granted to it, or that has been declared to exist and so on. However, nothing in the definition of the concept of ‘judgment’ indicates that the EU legislature wished to limit the category of judicial determinations capable of being recognised to those that have a specific content (such as those determining rights and obligations and not only related to jurisdiction). On the contrary, and as already observed in point 65 above, the Court has ruled out the possibility of the classification of a judicial determination as a ‘judgment’ being dependent precisely on its content. In that regard, I recall that, in the judgment in Gothaer, the Court included within that concept a negative jurisdictional determination, irrespective of the similar concerns raised by the referring court in that case pointing to the specificities of the national doctrinal classification of decisions declining jurisdiction. (35)
74.      Turning now to the context in which the concept of ‘judgment’ is used, I am of the view that including decisions such as the interim decision at issue within the concept of a ‘judgment’ is relevant, in particular, in situations of lis pendens.
75.      It should be noted that, under the general rules of lis pendens set out in Article 29(1) and (3) of Regulation No 1215/2012, where the court first seised establishes its jurisdiction, the obligation requiring any other court seised of the same cause of action involving the same parties to decline jurisdiction is triggered. That obligation applies mutatis mutandis to the non-designated court under the reverse chronology rule provided for by the specific lis pendens rule in Article 31(2) and (3) of Regulation No 1215/2012 when the court designated in an exclusive choice-of-court agreement establishes jurisdiction.
76.      In that regard, it is not clear how the proper operation of those obligations (to decline jurisdiction) could be ensured if a judicial decision containing a ‘mere’ jurisdictional finding were found to not come within the concept of a ‘judgment’ that can (and must) be recognised.
77.      Indeed, if the view were taken that that ‘standalone’ jurisdictional findings cannot be considered ‘judgments’ that have to be recognised, there would be no obligation, on court that does not have priority to determine whether it has jurisdiction under the relevant lis pendens rule, to decline jurisdiction when the jurisdiction of the court ‘with priority’ has been established (in an interim judgment). That, in turn, risks depriving the lis pendens rules under Regulation No 1215/2012 of their practical effect (irrespective of whether the situation falls under the general or specific rule of lis pendens).
78.      That said, it could, admittedly, be suggested that the application of the lis pendens rule is not dependent on the concept of recognition under Article 36(1) of Regulation No 1215/2012 being triggered. Indeed, it could be argued that a decision containing only a jurisdictional finding does not have any ‘enforceable’ content (within the meaning of substantive rights and corresponding obligations) for which the rules of recognition and enforcement appear to have been designed at the first place. (36) It could thus be further argued that the obligation to, in particular, decline jurisdiction when the jurisdiction of the court ‘with priority’ has been established, derives from the specific obligations set out in Articles 29(3) and 31(3) of Regulation No 1215/2012. Continuing that line of reasoning, it could be concluded that the existence of a ‘judgment’ within the meaning of Article 2(a) of that regulation is not needed in order for that obligation to be triggered.
79.      However, it follows from the judgment in Gothaer that decisions containing only jurisdictional findings do constitute ‘judgments’ that are capable of being recognised. Unless the Court wishes to revisit that conclusion, (37) the adoption of the opposite position here would therefore be inconsistent with its case-law. Indeed, I fail to see how the situation brought about by a decision declining jurisdiction (at issue in Gothaer) would differ from the situation deriving from a decision confirming jurisdiction (at issue here), when both situations are considered from the specific perspective of the content of the decisions at issue.
80.      In that connection, it seems to me that the inclusion of a decision, such as the interim decision at issue here, within the concept of a ‘judgment’ capable of being recognised avoids the risk that the obligation to decline jurisdiction pursuant to the lis pendens rules will not be respected on the ground that a decision that only confirms jurisdiction to hear and determine a claim does not have any enforceable content and may therefore not benefit from mutual recognition.
81.      The position that an interim decision merely confirming jurisdiction of a court to hear and determine a claim is covered by the concept of ‘judgment’ within the meaning of Articles 2(a) and 36(1) of Regulation No 1215/2012 is nevertheless yet to be tested against the relevant objectives that that regulation pursues.
3.      The consideration of the relevant objectives
82.      It is quite clear that the conclusion that an interim decision such as that at issue constitutes a ‘judgment’ within the meaning of Articles 2(a) and 36(1) of Regulation No 1215/2012 is consistent with the principle of mutual trust and the objective of ensuring the free circulation of judgments. What remains to be verified, however, is whether that position should be altered in the light of the specific objective of protecting the practical effect of choice-of-court agreements which, as explained, is pursued by Regulation No 1215/2012 through the lis pendens rule in Article 31(2) thereof (as acknowledged in recital 22 of that regulation).
83.      The referring court considers that that those agreements would be deprived of their practical effect were the interim decision at issue found to constitute a ‘judgment’ that must be recognised. Moreover,
recognising that interim decision despite the fact that, when it was taken, the Spanish courts disregarded Article 31(2) of Regulation No 1215/2012 would essentially lead to the outcome that would have arisen before the adoption of the specific lis pendens rule and which that rule precisely seeks to avoid (points 49 to 51 above), as Kanadevia in essence argued.
84.      As already alluded to in the introductory part of this Opinion, the referring court considers that, unlike the situation having led to the judgment in Gjensidige, the merits of the action have not yet been adjudicated upon and therefore it is not too late to place the case on the correct jurisdictional footing given that it remains possible for the courts first seised (here, the Spanish courts) to respect the rule flowing from Article 31(2) of Regulation No 2015/2012 by suspending the proceedings in favour of the designated court. The referring court considers that to be the case irrespective of any res judicata effects that may be attached to the jurisdictional determination made by the Spanish courts under Spanish law because the primacy of EU law should prevail.
85.      In the same vein, the German and Cypriot Governments consider that the term ‘judgment’ should be given a restrictive interpretation (as an exceptional derogation to the approach that the Court has consistently taken in its case-law on that concept). The German Government acknowledges that that restrictive interpretation would limit the obligation of mutual recognition and affect the principle of mutual trust. However, it considers that impact to be minimal due to the previously mentioned ‘internal effects’ of the interim decision at issue. That government considers that the impact on the principle of mutual trust would, in fact, be much greater if a decision adopted in breach of Article 31(2) of Regulation No 2015/2015 were to benefit from recognition.
86.      Although I acknowledge that protecting the practical effects of choice-of-court agreements is a legitimate concern, I consider that the protection afforded to those agreements under the specific lis pendens rule in Article 31(2) of Regulation No 1215/2012 does not justify the exclusion of decisions containing only jurisdictional findings from the concept of ‘judgment’ within the meaning of Regulation No 1215/2012.
87.      First, I recall that that regulation is based on the premiss that the Member States’ courts are fundamentally equal when it comes to the application of jurisdictional rules. That premiss relies on the principle of mutual trust, which underpins Regulation No 1215/2012 and which is given specific expression in the list of exhaustive grounds on which recognition can be refused (the breach of a choice-of-court agreement or, for that matter, of the lis pendens rules, are not included in that list).
The scheme of that regulation, by only providing
a limited number of grounds for the refusal of recognition, thus requires that, where the defendant wishes to challenge the jurisdiction of the State of origin, he or she must do so by availing of the system of remedies of that Member State. (38)
88.        However, contrary to the scheme of Regulation No 1215/2012, concluding that a decision merely establishing jurisdiction (in breach of a choice-of-court agreement) does not constitute a ‘judgment’ within the meaning of Regulation No 1215/2012 would be tantamount to introducing a new category of judicial findings that are not subject to the obligation of mutual recognition, thus effectively carving out an exception to that principle that is not provided for. (39)
89.      Second, the opposite position would effectively mean that the court claiming exclusive jurisdiction on the basis of a choice-of-court agreement that has been disregarded could hear and determine the claim, thereby maintaining the presence of two parallel sets of proceedings and therefore creating a risk of conflicting judgments. That is, however, precisely what the EU legislature sought to avoid by means of the specific lis pendens rule in Article 31(2) and (3) of Regulation No 1205/2015 (as well as by means of the general lis pendens rule under Article 29(1) and (3) of that regulation). (40) In that regard, it seems to me that, where the coordination of parallel proceedings cannot be ensured by means of the specific lis pendens rule in Article 31(2) of Regulation No 1215/2012 because that rule was not complied with, to insist that the choice-of-court agreement must be observed (and that the designated courts must therefore be able to hear and determine the claim) would run directly counter to the objective of avoiding parallel proceedings and conflicting judgments. For that reason, it seems to me that the solution that best contributes to achieving that objective (and which, by extension, promotes the objective of sound administration of justice) is to be found in the rule set out in Article 29(3) of Regulation No 1215/2012. (41)
90.      Such a solution would mean that, when the court other than that designated by an exclusive choice-of-court agreement decides first (by adopting an interim decision in which it declares itself to have jurisdiction, in breach of the choice-of-court agreement and of the lis pendens rule laid down in Article 31(2) of Regulation No 1215/2012), the court designated by that agreement should decline jurisdiction on the basis of the general lis pendens rule laid down in Article 29(3) of that regulation. Indeed, it seems to me that once it becomes clear that the existence of parallel proceedings cannot be avoided through the mechanism of Article 31(2) of Regulation No 1215/2012 and a court other than that designated by the choice-of-court agreement decides first (by declaring that it has jurisdiction), those parallel proceedings become subject to the general lis pendens rule provided for in Article 29 of Regulation No 1215/2012.
91.      In that latter respect, and to respond to a specific concern raised by both the referring court and by Kanadevia, I do not think that such a conclusion would lead to a negative conflict of jurisdiction (whereby the application of jurisdictional rules leads to no court having jurisdiction to hear and determine the claim). In particular, the referring court considers that such a situation could arise were the German courts to decline jurisdiction despite the choice-of-court agreement and were the Spanish courts to reverse their decision, which the referring court considers to be in breach of Article 31(2) of Regulation No 1215/2012 (which, if I understand the argument correctly, makes such a reversal all the more plausible).
92.      That concern is indeed an important one. To explain, the rules on lis pendens set out in Regulation No 1215/2012 are aimed, first and foremost, at avoiding positive conflicts of jurisdiction (and the ensuing problem of possible conflicting judgments). However, it is clear that that regulation must, of course, be interpreted in such a way as to ensure the respect of the right to effective judicial protection guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union.
93.      In that respect, it is not entirely clear from the order for reference whether the decision of the Spanish courts is final or not under Spanish law. The Spanish Government, however, explained at the hearing that it is final (meaning that the jurisdiction of the Spanish courts can no longer be contested).
94.      On the one hand, that aspect could be prima facie dismissed as, irrelevant because, as submitted by Babcock, the Czech Government and the Commission, the recognition of a judgment does not depend on it being final.
Indeed, Article 38(a) of Regulation No 1215/2012 provides that ‘the court or authority before which a judgment given in another Member State is invoked may suspend the proceedings, in whole or in part, if: (a) the judgment is challenged in the Member State of origin.’ (42) It follows, by a contrario reasoning, that the recognition of a judgment is possible even in the absence of res judicata effect under the law of the State of origin of said judgment.
95.      However, and on the other hand, I recall that under both lis pendens rules of Regulation No 1215/2012, the obligation on a court to decline jurisdiction in favour of another arises when the court ‘with priority’ has
established its jurisdiction. The text of the relevant rules does not clarify how that moment is to be determined. However, the Court has explained, in essence, that the court ‘with priority’ establishes jurisdiction where it ‘has not declined jurisdiction of its own motion and where ‘none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded by national procedural law as being the first defence’ (because as from that point in time, the party is in principle prevented from challenging jurisdiction in the proceedings as such). (43) The Court concluded that such solution does not give rise to a risk of negative conflicts of jurisdiction because, in essence, the jurisdiction of the court first seised (under the general lis pendens rule) can no longer be contested. (44)
96.      It seems to me that fixing the point in time at which jurisdiction is established, for the purpose of applying the lis pendens rules, at the moment when such jurisdiction can no longer be contested implies that the obligation to decline jurisdiction under Article 29(3) of Regulation No 1215/2012 (or under Article 31(3) of that regulation) may arise at various procedural stages of the proceedings, depending on whether the defendant is still able to contest jurisdiction. The limit to contesting jurisdiction (by reason of res judicata) may arise after the first instance judgment is delivered, or even at a later stage, during appeal proceedings (depending on whether the defendant contested the jurisdiction at first-instance and on appeal, subject to the relevant rules of procedure). (45) I therefore consider that the objectives of preventing the risk of contradictory judgments and of ensuring the sound administration of justice (also inherent to the
lis pendens rule) are best served when jurisdiction is established by reference to that moment and not only by reference to the adoption of the judgment at first instance (given also that such moment can occur even prior to any judgment being adopted). In that way, the court ‘without priority’ will only decline jurisdiction when it seems safe to assume that the court ‘with priority’ will proceed to an examination of the merits. Moreover, the negative consequences of prolonging the situation of parallel proceedings pending a possible appeal are at any rate minimal given that proceedings pending before the court ‘without priority’ will normally be stayed.
97.      That outcome differs from the rule under Article 38(a) of Regulation No 1215/2012, according to which the fact that a judgment is being challenged in one Member State does not prevent its recognition in another (‘may suspend the proceedings … if the judgment is challenged (emphasis added)).
98.      For that reason, it seems to me that while the obligation to recognise a judgment having merely jurisdictional content may arise irrespective of whether or not it is final (as follows from Article 38(a) of Regulation No 1215/2012), what is of more relevance to the practical solution of a situation of lis pendens such as that before the referring court is that the obligation, on a court designated by a choice-of-court agreement that has been disregarded, to decline jurisdiction under Article 29(3) of Regulation No 2012/2015 arises only when the jurisdiction of the court seised first has been established in the manner described above (when that jurisdiction can no longer be contested).
99.      Finally, I note that the referring court is also of the view (as I understand it, as an alternative to the concerns based on the risk of negative conflicts of jurisdiction), that should the decision of the Spanish courts have acquired the force of res judicata (meaning that it can no longer be contested), those courts cannot be prevented from changing their course of action and deciding to comply with Article 31(2) of Regulation No 1215/2012, so as to place the case on the correct jurisdictional footing.
100.  The conclusion I have reached above renders that consideration moot. However, for the sake of completeness, I do not think that the possible res judicata effect of the jurisdictional determination under the law of the Member State of the non-designated court can be disposed of lightly, simply by reference to the primacy of EU law.
101.  Indeed, there is no general obligation under EU law that would require ‘a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law’. (46) The Court repeatedly recalls the importance of the principle of res judicata, which is, in simple terms, justified by the interest in ensuring the stability of the law and legal relations, and by the sound administration of justice. (47) While the Court has certainly defined several limited exceptions to that premiss, none of them appear applicable here. (48) In any event, that question would have to be examined through the prism of the principles of equivalence and effectiveness, which frame the exercise of the procedural autonomy of the Member States in accordance with the duty of sincere cooperation enshrined in Article 4(3) TEU. (49) That said, in the light of my suggestion above, I limit myself to those general comments without considering it necessary to explore that aspect of the case in any more depth.
102. In the light of the above, I conclude that Article 2(a) and Article 36(1) of Regulation No 1215/2012 should be interpreted as meaning that the term ‘judgment’ within the meaning of those provisions covers a decision by which a court of a Member State, seised first, declares itself to have jurisdiction (without yet conducting an examination of the merits of the case), in breach of Article 31(2) of that regulation. Moreover, while the obligation to recognise such a judgment arises irrespective of whether or not that judgment is final, the obligation of the court designated by the choice-of-court agreement which has been disregarded, seised second, to decline jurisdiction under Article 29(3) of Regulation No 1215/2012 arises only when the (non-designated) court, seised first, has been established within the meaning of Article 29(1) of Regulation No 1215/2012, that is, when such jurisdiction can no longer be contested in the ongoing proceedings.
V.      Conclusion
103. In the light of the foregoing considerations, I suggest that the Court reply to the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
Articles 2(a) and 36(1) of Regulation No 1215/2012 should be interpreted as meaning that the term ‘judgment’ within the meaning of those provisions covers a decision by which a court of a Member State, seised first, declares itself to have jurisdiction (without yet conducting an examination of the merits of the case), in breach of Article 31(2) of that regulation.
While the obligation to recognise such a judgment arises irrespective of whether or not that judgment is final, the obligation of the court designated by a choice-of-court agreement which has been disregarded, seised second, to decline jurisdiction under Article 29(3) of Regulation No 1215/2012 arises only when the jurisdiction of the (non-designated) court, seised first, has been established within the meaning of Article 29(3) of Regulation No 1215/2012, that is, when such jurisdiction can no longer be contested in the ongoing proceedings.
1      Original language: English.
2      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 (recast)
(OJ 2012 L 351, p. 1).
3      The referring court considers that those proceedings do not involve ‘the same cause of action’ within the meaning of Article 29(1) of Regulation No 1215/2012, which will be discussed later.
4      As will be explained in more detail below, according to Article 31(2) of Regulation No 1215/2012, where an agreement between parties confers exclusive jurisdiction on a court of a given Member State, that designated court must be given priority to determine whether it has jurisdiction to hear and determine the claim, even if it has not been seised first.
5      Article 36(1) of Regulation No 1215/2012 provides that ‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.
6      See judgment of 21 March 2024, Gjensidige (C‑90/22, EU:C:2024:252; ‘the judgment in Gjensidige’).
7      The order for reference does not provide further details concerning Kanadevia’s participation in those proceedings.
8      It follows from the order for reference that the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany) expressed doubts in that respect.
9      See, in that regard, in particular, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraph 35 and the case-law cited).
10      See, in that regard, judgment of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 26 and the case-law cited).
11      See my Opinion in Procureur de la République (Concurrence of a European arrest warrant and an extradition request) (C‑763/22, EU:C:2024:707, point 84 and footnote 33). Furthermore, and related to that aspect, I recall that the parties do not enjoy any subjective right for a given question to be referred within the procedure under Article 267 TFEU. See judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraphs 54 and 55) and my Opinion in Centro Petroli Roma – II (C‑386/24, EU:C:2025:775, points 49 and 50).
12      Under Article 39 of Regulation No 1215/2012 ‘a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.‘
13      See, in that regard, recitals 3 and 26 of Regulation No 1215/2012. See, for instance, the judgment in Gjensidige, paragraph 60, and my Opinion in Spielerschutz Sigma (C‑683/24, point 96) delivered on the same day as the present Opinion.
14      See, in particular, Recitals 4, 6 and 26 of Regulation No 1215/2012.
15      Article 52 of Regulation No 1215/2015 provides that ‘under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed’.
16      Article 45(3) of Regulation No 1215/2012.
The Jenard Report states that ‘the absence of any review of the substance of the case implies complete confidence in the court of the State in which judgment was given; it is similarly to be assumed that that court correctly applied the [harmonised] rules of jurisdiction’, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Signed at Brussels, 27 September 1986) by Mr. P. Jenard (OJ 1979 C 59, p. 1), p. 46 (‘the Jenard Report’). The Court quotes that excerpt in its judgment of 15 November 2012, Gothaer Allgemeine Versicherung and Others (C‑456/11, ‘the judgment in Gothaer’, EU:C:2012:719, paragraph 37).
17      See, for instance, Opinion of Advocate General Bot in Gothaer Allgemeine Versicherung and Others (C‑456/11, ‘the Opinion in Gothaer’, EU:C:2012:554,
points 72, 73 and 75).
18      The judgment in Gjendisige, paragraph 46 and the case-law cited. In the context of Regulation No 44/2001, see,
for instance, the judgment in
Gothaer, paragraph 35 and the case-law cited. In the context of the 1968 Brussels Convention, see judgments of 28 March 2000, Krombach (C‑7/98, EU:C:2000:164, paragraph 31), and of 27 June 1991, Overseas Union Insurance and Others (C‑351/89, EU:C:1991:279, paragraphs 23 and 24). I recall that
‘in so far as Regulation No 1215/2012 repealed and replaced Regulation No 44/2001, which itself replaced the 1968 Brussels Convention, the Court’s interpretation of the provisions of one of those legal instruments also applies to those of the others, whenever those provisions can be regarded as equivalent’.
See, for instance, the judgment in Gjensidige, paragraph 40 and the case-law cited.
19      I note that the facts giving rise to the judgment in Gjensidige were governed by the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956, as amended by the Protocol signed in Geneva on 5 July 1978. However, in the absence of any specific rules in the latter convention on recognition, that aspect is governed by (and was therefore examined by the Court in the light of) Regulation No 1215/2012. See the judgment in Gjensidige, paragraphs 43 to 47.
20      The Court also examined the ground for refusal listed in Article 45(1)(a) of Regulation No 1215/2015 relating to public policy, which, as specified in the second sentence of Article 45(3) of Regulation No 1215/2015, may not be applied to the rules relating to jurisdiction. The judgment in Gjensidige, paragraphs 51 to 53.
21      Those protective jurisdictional rules are set out in Sections 3 to 5 of Chapter II of Regulation No 1215/2012.
22      They are listed in Article 24 of Regulation No 1215/2012. They cover (i) certain aspects of immovable property, (ii) certain corporate matters, (iii) the validity of entries in the public registers, (iv) the validity of patents, trade marks, designs or other similar rights, and (v) the enforcement of judgments.
23      I recall that, under Article 25(1) of Regulation No 1215/2012, the jurisdiction conferred under a choice-of-court agreement is exclusive, unless the parties have agreed otherwise. I also recall that Article 25 of Regulation No 1215/2012 forms part of Section 7 of Chapter II of Regulation No 1215/2015. That detail is relevant given that the exception in Article 45(1)(e)(ii) of Regulation No 1215/2015 refers to judgments conflicting with the jurisdictional grounds listed in Section 6 of Chapter II.
24      My
Opinion in Gjensidige (C‑90/22, EU:C:2023:994, point 86; ‘my Opinion in Gjensidige’).
25      See, in that regard, the judgment in Gjensidige, paragraph 73. See also European Commission, ‘Green Paper on the Review of Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’, COM(2009) 175 final, p. 5.
26      See Article 21 of the 1968 Brussels Convention and Article 27 of Regulation No 44/2001.
27      See recital 22 of Regulation No 1215/2012. See also Law, S., ‘Article 31’, in Requejo Isidro, M. (ed.), Brussels I Bis: A Commentary on Regulation (EU) No 1215/2012, Edward Elgar Publishing (Series: Elgar Commentaries in Private International Law), 2022, pp. 490 to 499, p. 495 et seq.
28      See, in particular, in the context of the 1968
Brussels Convention, judgment 9 December 2003, Gasser (C‑116/02, EU:C:2003:657, paragraphs 41 to 54).
See Mankowski, P., ‘Der Schutz von Gerichtsstandsvereinbarungen vor abredewidrigen Klagen durch Art. 31 Abs. 2 EuGVVO n.F.’, RIW 2015, pp. 17 to 24; Law, S., ‘Article 31’, in Requejo Isidro, M. (ed.), Brussels I Bis: A Commentary on Regulation (EU) No 1215/2012, Edward Elgar Publishing (Series: Elgar Commentaries in Private International Law), 2022, pp. 490 to 499, in particular p. 494.
29      The judgment in Gjensidige, paragraph 73.
30      See also, in that regard, my Opinion in Gjensidige, points 91 and 98.
31      See the judgment in Gothaer, paragraphs 25 to 29. The Jenard Report, footnote 16, op. cit., in particular p. 42; Report on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice
(Signed at Luxembourg, 9 October 1979), (OJ 1979 C 59, p. 71), points 184 and 191.
32      Judgment of 20 June 2022, London Steam-Ship Owners’ Mutual Insurance Association (C‑700/20, EU:C:2022:488, paragraph 49 and the case-law cited). See also judgment of 14 October 2004, Mærsk Olie & Gas (C‑39/02, ‘the judgment in Mærsk’, EU:C:2004:615, paragraph 50 and the case-law cited).
33      The judgment in Mærsk, paragraph 52.
34      The Court moreover concluded that a determination by a court of one Member State that it does not have jurisdiction on account of such a clause being valid is binding on the court addressed where recognition is sought. The judgment in Gothaer, paragraph 43.
35      See the judgment in Gothaer, paragraph 20,
reproducing the explanation of the referring court in that case from which it follows that, under German legal doctrine, a judgment declining jurisdiction is a ‘judgment on a procedural matter’ (‘Prozessurteil’) given that it dismisses the action as inadmissible by reason of its failure to satisfy the requirements for a judgment on the merits of the case.
36      See, to that effect, Mankowski, P., ‘Der Schutz von Gerichtsstandsvereinbarungen vor abredewidrigen Klagen durch Art. 31 Abs. 2 EuGVVO n.F.’, Recht der internationalen Wirtschaft, 2015, pp. 17 to 24.
37      For a discussion of the implications of that case, see Voulgarakis K.D., ‘Reflections on the scope of “EU res judicata” in the context of Regulation 1215/2012’, Journal of Private International Law, 2020, 16:3, pp. 451 to 464.
38      See to that effect also Opinion in Gothaer, points 46 to 48.
39      Judgments in Gothaer, paragraphs 30 and 31, and of 7 April 2022, H Limited (C 568/20, EU:C:2022:264, paragraph 31 and the case-law cited).
40      Or, for that
matter, by means of the rule in Article 30 of Regulation No 1215/2012 on related actions. These are actions that do not meet the requirements to be regarded as involving the same cause of action and the same parties (which is the prerequisite for the rules of lis pendens to apply), but where the similarity of the matters raised may still justify a stay of the proceedings and, in specific circumstances, justify the court seised second declining jurisdiction.
41      See also Mankowski, P., ‘Der Schutz von Gerichtsstandsvereinbarungen vor abredewidrigen Klagen durch Art. 31 Abs. 2 EuGVVO n.F.’, RIW 2015, pp. 17 to 24.
42      Emphasis added.
43      Judgment of 27 February 2014, Cartier parfums-lunettes and Axa Corporate Solutions assurances (C‑1/13, EU:C:2014:109, paragraph 44). The Court made those findings in the context of the general lis pendens rule (provided under Regulation No 44/2001, which is equivalent to Article 29 of Regulation No 1215/2012) but the same must be held in respect of the specific lis pendens rule (in Article 31(2) of Regulation No 2015/2012) because the moment upon which the court ‘without priority’ must decline its jurisdiction is defined in the same way. While it is true that the Court found that its ruling does not cover cases in which the court second seised (under the general lis pendens rule) has exclusive jurisdiction, it is nevertheless clear that the Court referred in that regard to the grounds of exclusive jurisdiction that cannot be derogated from by agreement (and whose violation can lead to the refusal of recognition under Article 45(1)(e)(ii) of Regulation No 2015/2012 as previously explained).
Ibidem, paragraph 26.
44      Ibidem, paragraph 42 and 43.
45      BeckOK ZPO/Eichel, 60. Ed. 1.3.2026, Brüssel Ia-VO Art. 29 Rn. 47.
46      See for instance, judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C-582/21, EU:C:2024:282, paragraph 38 and the case-law cited).
47      See, for example, the judgments of 18 December 2025,
Soledil (C-320/24, EU:C:2025:993, paragraph 32) and of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 52 and the case-law cited).
48      See for their overview, and for instance, my Opinion in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C-582/21, EU:C:2023:674, points 42 to 50 and 158 to 169) or my Opinion in Società Cattolica di Assicurazione (C-17/25, points 57 to 64), delivered on the same day as the present Opinion.
49      See, for instance, judgment of 16 January 2025, BALTIC CONTAINER TERMINAL (C‑376/23, EU:C:2025:20, paragraph 73 and the case-law cited).